cyckV4

Fixation (Copyright Meets Software, continued) 363
program is protectable.” Is that what the District Court is saying in the fragment
excerpted here? Is that what Lotus argues? Both the Lotus majority, Judge Boudin and
the Oracle majority have to navigate not one, but two slippery slopes in dealing with
software’s mixture of expressive and functional aspects. Make the decision too broad one
way and no software is protected by copyright. Make it too broad the other way and
copyright monopolies of enormous length are added to a technology rich in network
effects and lock-in. Explain briefly the approach each takes.
3.) Compare the Court’s conclusion in Oracle with the language of § 102(b) of the
Copyright Act:
“As the Tenth Circuit concluded in expressly rejecting the Lotus
“method of operation” analysis, in favor of the Second Circuit’s
abstraction-filtration-comparison test, “although an element of a work
may be characterized as a method of operation, that element may
nevertheless contain expression that is eligible for copyright protection.”
and
§ 102(b) In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such work.
On the surface, saying that methods of operation can contain expression that is eligible
for copyright protection seems inconsistent with “[i]n no case does copyright protection
for an original work of authorship extend to any . . . method of operation, regardless of
the form in which it is . . . embodied.” Explain the Federal Circuit’s method of reconciling
these two statements.
4.) What is the best policy argument in favor of the Oracle decision—what danger does
it seek to avoid? The best policy argument against?
PROBLEM 11-3
You are the Supreme Court, using a judicial Tardis to go back in time to see if you can
break the 4–4 tie in your review of Lotus v. Borland. (The Oracle case is offered
merely to give you some time-traveling prescience about what the other side of the
argument might be.) The question is, how should the case be decided and on what
theory? Pay particular attention to issues of merger and separability, the special
problems raised by computer program interfaces, the light that economic analysis can
shed on the problem and the points raised in Judge Boudin’s concurrence. What are
the benefits, and dangers, of adopting the Federal Circuit’s approach in Oracle and
applying them to Lotus? If this is done as a group exercise, feel free to split into a
majority and dissent, if you wish. Come to class ready to explain your reasoning to
us—your colleagues on the expanded court—and to persuade us to join your opinion.
6.) Fixation (Copyright Meets Software, continued)
We saw in the Moghadam and Martignon cases featured in Chapter Two that
fixation was not merely a statutory requirement, but a constitutional one where copyright
was concerned. At the same time, we were left uncertain about whether that
constitutional requirement could easily be circumvented using Congress’s commerce