Method and Madness in Copyright Law

Abstract

M ETHOD AND M ADNESS IN C OPYRIGHT L AW Dan L. Burk* I. I NTRODUCTION Copyright law is a source of nearly endless scholarly fascination because of the paradoxes, the absurdities, the contradictions in its doctrines. Lewis Carroll’s White Queen had nothing on copyright law. 1 Copyright asks us to accept far more than six impossible, almost nonsensical assertions as part of its standard doctrine. Copyright asks us to believe, for example, that creative works have an existence independent of their embodiment; 2 that corporations, rather than people, can author documents; 3 that computer code is a literary work, like poetry or novels; 4 that artists have a special propensity to bungle their business affairs. 5 The list seems nearly endless. Perhaps we do not have to believe all of copyright’s impossibilities before breakfast. But those of us who deal with copyright have to believe them, or at least pretend to accept them, all day long, day in and day out. As the Queen pointed out to Alice, believing impossible things takes practice. 6 With enough practice, the impossible becomes commonplace. When that happens, when we stop seeing the impossibility in the impossible, we seldom stop to question, or at least marvel, over the exceptional ideas that we have come to accept. And when this happens in copyright, we overlook or ignore some truly startling assumptions that are foundational to the copyright system. In this essay, I want to exercise the scholarly prerogative to examine one of those unexamined assumptions that lies at the center of a cluster of fundamental copyright doctrines. My subject is implicit in the way that copyright treats methods or processes, and we shall see that copyright has very special rules regarding methods or processes. Every student of copyright knows about these special rules, but the logic behind the rules, and the implications of that logic, have gone largely unexamined. I will look, hopefully with a fresh eye, at the assumptions about causality in copyright’s treatment of methods, systems, and processes. I shall do so through the lens of a relatively recent series of cases dealing with copyright in * © 2006 by Dan L. Burk, Oppenheimer, Wolff & Donnelly Professor of Law, University of Minnesota. This article was originally delivered as the 2006 Clyde Lecture at the University of Utah S.J. Quinney College of Law. I wish to thank Professors Hillary Greene and John Tehranian, Professor and former Dean Scott Matheson, and their colleagues for the opportunity to develop the ideas presented here. See L EWIS C ARROLL , Through the Looking-Glass and What Alice Found There, in T HE A NNOTATED A LICE 167, 251 (Martin Gardner ed., 1960). 17 U.S.C. §§ 101, 202 (2006). 17 U.S.C. § 201(b). H.R. R EP . N O . 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5667. See Stewart v. Abend, 495 U.S. 207, 207 (1990). See C ARROLL , supra note 1, at 251.