Response to Pamela Samuelson, Staking the Boundaries of Software Copyrights in the Shadow of Patents
Categories create hours of fun for the legal mind. Is it this? Or is it that? Could it be both? At the end of the day, the best, but nagging, answer might be “None of the above.”
Categories are at the heart of Professor Samuelson’s article, which addresses the vexing question of how to categorize software as intellectual property. The central dilemma is drawing the line between copyright and patent, particularly with respect to software. A common mantra is that copyright protects expression (“what a work says”) while patent protects function (“what a work does”). Saying and doing, however, are not often distinguishable, especially for software. A program is a set of instructions. It says something, like a recipe. But unlike a recipe, a software program is self-executing: It does something, occasionally, on its own accord. Hence, why the question at the heart of Professor Samuelson’s article is so critical and tantalizing. Adding to the challenge is the pending decision in Google LLC v. Oracle American, Inc. (“Google”) by the U.S. Supreme Court, for which Professor Samuelson’s article serves as a necessary guidepost.
This Response traverses and remixes the boundary between copyright and patent, both actual and imagined. Section One reacts to Professor Samuelson’s article. Section Two presents my views on how the Supreme Court might decide the Google decision. Finally, in Section Three, I recommend some policy options in the shadow of the Oracle American, Inc. v. Google Inc. (“Oracle”). Read more.