Page:Fair Circumvention.djvu/31

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FAIR CIRCUMVENTION

in Title 17 would appear to indicate that Congress recognized their connection with copyright.

More persuasive, therefore, are those courts that have attempted to harmonize the DMCA with other provisions of copyright law, applying the settled principle that statutes in pari materia should be construed together.[1] Construing the DMCA alongside the rest of copyright law makes available powerful analytical tools of proven usefulness. Consider, for example, the functionality principle, which rests upon the dichotomy long recognized in copyright law between idea and expression. The familiar general rule is that, even where copyright protects a work, copyright protection does not extend to aspects of the work that are predominantly functional rather than expressive.[2] Courts applying this principle have declined to extend copyright protection to portions of computer software[3] or other articles[4] that reflect predominantly functional, rather than expressive or creative, concerns.[5] The functionality doctrine serves a valuable purpose in ensuring that copyright protection does not restrict that which should remain “open and free to the use of the public.”[6]

Interpreting the DMCA as a copyright statute brings copyright’s functionality doctrine into play. The functionality principle, in turn, does much to justify decisions like Lexmark and Chamberlain. Because the works the plaintiffs in both those cases sought to protect were closely

  1. See, e.g., Erlenbaugh v. United States, 409 U.S. 239, 243-44 (1972); Postmaster Gen. v. Early, 25 U.S. (12 Wheat.) 136, 152 (1827).
  2. This rule is often traced to Baker v. Selden, 101 U.S. 99 (1879). There, the Court reasoned that the copyright in the plaintiff’s book on accounting did not prevent the defendant from copying the accounting system the plaintiff had developed and described in the book. See id. at 107. Although the literal text of the book itself was under copyright and protected against wholesale taking, the same was not true of the functional accounting methodology that the book endeavored to explain. See id. at 104 (“[W]hilst no one has a right to print or publish his book, . . . any person may practise and use the art itself which he has described and illustrated therein. . . . The copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book.”); see also Mazer v. Stein, 347 U.S. 201, 217 (1954) (“Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself.”). On the functionality doctrine in general, see 1 Paul Goldstein, Goldstein on Copyright § 2.15 (3d ed. Supp. 2008).
  3. See supra note 137; see also H.R. Rep. No. 94-1476, at 56-57 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5670 (explaining that 17 U.S.C. § 102(b) “is intended, among other things, to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law”).
  4. See, e.g., Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1148 (2d Cir. 1987) (rejecting copyrightability of plaintiff’s bicycle rack design on grounds that the design was dictated by functional considerations involved in storing bicycles); Carol Barnhart, Inc. v. Econ. Cover Corp., 773 F.2d 411, 419 (2d Cir. 1985) (finding plaintiff’s molded styrene human torso designs ineligible for copyright on grounds that designs were dictated by functional considerations involved in display of clothing).
  5. Many other examples are collected in Dennis S. Karjala, Distinguishing Patent and Copyright Subject Matter, 35 Conn. L. Rev. 439, 444 n.22 (2003).
  6. Baker, 101 U.S. at 104.