The End of Fair Use?


The IITF White Paper as a Mechanism to Prohibit the Fair Use of Copyrighted Materials

By Jason Skier


The struggle to adapt existing intellectual property law to contemporary computer technology presents one of the greatest legal challenges created by the ongoing technological revolution. Many have questioned whether the current foundation of intellectual property law can be adapted to control the excesses of this technological revolution while many others argue that the existing legal framework can successfully accommodate the changes. Due to this new technology, legislation has been introduced to amend several sections of United States Code Title 17. [FN1] This new legislation seeks to amend the existing law to provide additional protection for the producers of intellectual property to encourage them to contribute more of their protected works and ideas into the National Information Infrastructure (NII). This paper will attempt to determine whether these proposed changes could have a significant and detrimental effect upon the rights of the consumers of intellectual property.

The number of personal computers currently in use in America has grown exponentially over the last several years and the trend is predicted to continue unabated. [FN2] Additionally, current estimates of Internet usage vary between 16.4 to 22 million adult American users. [FN3] The sheer number of computer users, combined with the exponential rate of growth of persons with access to computer technology has many persons concerned about the impact of this technology on their current and future rights under existing intellectual property law. Accordingly, in February of 1993, President Clinton created the Information Infrastructure Task Force (IITF) to assist in the formation and execution of the Clinton Administration's "vision for the National Information Infrastructure." [FN4] Recently, legislation has been introduced in both the Senate and House of Representatives [FN5] to codify the changes to copyright law suggested by the IIFT in their White Paper. [FN6] The purpose of amending any law is to change the rights and duties of the parties involved, and it should not be performed without hesitation. Furthermore, the resulting judicial implementation of the law does not always directly coincide with the voiced opinions of the drafters and supporters of the legislation. Therefore, the actual text of the legislation should be scrutinized as well the arguments of the supporters and opponents.

Current State of the Law

It would be worthless to attempt to predict changes in the law without first discussing the current state of the law. Unfortunately, the entire field of intellectual property law can oftentimes seem confusing and intimidating to even the most seasoned thinkers. Unlike many areas of law, the field of intellectual property law is often so technical that many of the common sense, knee-jerk reactions that guide our thinking process are noticeably absent. Therefore, not many lawyers seek to venture into the highly specialized realm of intellectual property law. With this in mind, this essay is written for those whose legal education may not have included a significant amount of intellectual property law.

The Written Law

For the uninitiated, the fundamental purpose of intellectual property law is to provide a reasonably limited time and scope for a person to have a monopoly for exploiting her original ideas or works. At first glance, the Federal government providing a person with a limited monopoly over their ideas and works seems contrary to the principles of a free market economy. However, the U.S. Constitution specifically enables Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." [FN7] This ability to control the exploitation of one's own ideas and works is meant to provide the impetus for the creation of new intellectual property. Following the written intent of the framers, the United States Supreme Court has held that "[c]reative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts," [FN8] and also that "copyright law ultimately serves the purpose of enriching the general public through access to creative works." [FN9]

On a basic level, any computer program is simply a set of instructions commanding a computer to accomplish specified tasks. [FN10] Before the computer revolution, technological innovations were usually protected through the use of patent law. [FN11] While both patent and copyright law exist to protect intellectual property, patents protect creative, functional invention, and in contrast, copyrights protect creative authorship. [FN12] For an article to be categorized as functional under the Act, it must have an "intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." [FN13] Basically, functionality requires that the invention achieve the desired result without human facilitation. [FN14] Due to this, combined with computer software's inherent susceptibility to copying, copyright has become the protection of choice for software developers. [FN15] Unfortunately, the decision to employ copyright as the primary source of protection for computer software raises issues not present with other forms of artistic work.

United States intellectual property policy has traditionally been fairly liberal in the determination of what items are worthy of copyright protection. The Copyright Act of 1976, for example, protects "original works of authorship fixed in any tangible medium of expression." [FN16] Accordingly, it would appear that the Act requires a work to possess several elements to qualify for copyright protection. From the text of § 102(a), it is apparent that a work must first be "fixed in any tangible medium of expression" before it can qualify for copyright protection. This language of the Act is extremely broad, defining a tangible medium as any medium "now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." [FN17] Note that the Act defines a medium as tangible even where mechanical aides are required for humans to perceive the work. This language is so liberal that it is hard to imagine any available storage medium (except the brain) that does not qualify as "tangible." Therefore, even though the text of the Copyright Act was written prior to the discovery of most of the storage technologies in use today, those technologies are clearly within the scope of the Act.

The next requirement for copyright protection under the Copyright Act is that the work must be deemed an "original work of authorship." Fortunately, the Act also includes a non-exhaustive list of things that qualify as "works of authorship." The first item on the list is a category for literary works. [FN18] The drafters of the Copyright Act clearly intended for computer programs to be afforded protection as literary works under the Act, as the House Report for the 1976 Act states that "the term 'literary works' does not connote any criterion of literary merit or qualitative value: it includes ... computer data bases, and computer programs to the extent that they incorporate authorship in the programmer's expression of original ideas, as distinguished from the ideas themselves." [FN19]

The Copyright Act also provides that copyright protection does not "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." [FN20] Therefore, the expression of the idea is protected while the idea (or process, system, etc.) itself is outside the purview of the copyright statute. Accordingly, this idea/expression dichotomy greatly limits the scope of what parts of the work are subject to copyright protection.

However, obtaining a copyright does not give the author an infinite amount of control over her work. Rather than granting the author ownership in the entire work, the copyright grants the owner rights in relation to the work. The 11th Circuit has recently held that "[i]t is the rights, not the work, that the copyright holder owns." [FN21] Rather than giving the author dominion over the work, Section 106 of the Copyright Act gives the owner a "bundle of rights" including the exclusive rights of reproduction, adaptation, publication, performance, and display of the work. [FN22] Further, Section 501 of the Act even provides that "[a]nyone who violates any of the exclusive rights of the copyright owner… is an infringer of the copyright or right of the author." [FN23]

The Copyright Act provides that certain categories of users, due to their status, may use copyrighted materials in ways that may violate the owner's rights without violating the copyright. Section 107 contains a nonexclusive list of purposes that qualify as fair use, including: criticism, news reporting, teaching, scholarship, and research. [FN24] The statute provides that four factors should be considered by a court when determining if an act that would otherwise be a violation qualifies as a fair use. First, a court should determine the "purpose and character of the use," taking into account whether the use is commercial or noncommercial. [FN25] While educational and other noncommercial uses are looked upon favorably by courts, the fact that a use is commercial should not preclude it from being a fair use. Next, the court should examine the "nature of the work" as well as "amount and substantiality of the portion used." [FN26] This is to take into account the quantity and significance of the work that was used in relation to the entire protected work. Finally, the court should determine the effect of the violation on the value and market for the original work. In the interest of equity, the weight of each particular element should be balanced against

In fact, the text of the original Copyright Act of 1909 [FN27] did not contain a fair use provision. Fortunately, the statute was subsequently interpreted to include a provision that operates in a substantially similar way to the current fair use provision. [FN28] Therefore, Congress must have intended to secure the right of fair use when it was included in of the current legislation. Hence, Congress must have intended to ensure that, under certain circumstances, fair users may infringe an owners exclusive right without generating liability due to the resulting benefit to the public.

Current Judicial Interpretation

Predictably, conflict arises between the producers and consumers of intellectual property concerning the scope of protection as well as what constitutes a fair use. Not surprisingly, the producers of intellectual property tend to interpret the laws in ways that afford them the maximum protection and control over their work. On the other hand, the consumers of intellectual property strive for access to the greatest amount of available material as well as the maximum amount of rights under any fair use. These interests often seem to collide in defining the scope of fair use and originality.

The originality requirement can present a major impediment in copyrighting any work. "The sine qua non of copyright is originality," according to a recent United States Supreme Court decision. [FN29] That decision was handed down in a civil action concerning the copyrightability of a compilation of phone numbers. Feist Publications had copied phone numbers from a white pages publication of a competitor, Rural Telephone Service. [FN30] Rural refused to license the data to Fiest, so Feist copied and processed almost five thousand entries from Rural's publication. [FN31] Feist's resulting publication contained just over one thousand three hundred entries that were identical to those in the Rural directory, including several bogus entries planted by Rural to assist them in detecting copies. [FN32] The Feist Court held that a work must be both an "independent creation of the author" as well as possess a "minimal degree of creativity" to qualify for copyright protection, and that a mere compilation of telephone listings did not qualify. [FN33]

Whelan, one of the first cases to deal with the scope of protection afforded to computer software, greatly expanded the scope of protection available to computer programs. [FN34] Prior to Whelan, courts were just beginning to define the parameters of copyright protection for computer software. Nevertheless, even by 1986 it was clear that both source code and object code could be protected by copyright. [FN35] Thereafter, the Whelan court paralleled the protection for non-literal aspects of other literary works and stated that "the copyrights of computer programs can be infringed even absent copying of the literal elements of the program," and also that the idea and function of a compuer program was the entire program and "everything that is not necessary to that purpose or function [is] part of the expression of that idea." [FN36] While several recent cases expressed doubt concerning its holding, Whelan stands as a testament to the difficulty of determining the scope of copyright protection for emerging technology. [FN37]

Both source code and object code are involved in the production of computer software. Source code is usually written in a symbolic programming language which can be readily recognized and understood by others familiar with the specific programming language. During the production process, source code is compiled into object code. Object code is a series of ones and zeroes designed for a computer to understand. [FN38] Further, while experienced programmers may be able to comprehend small pieces of object code, it is unreadable to almost all persons. Accordingly, most software purchased commercially contains only the object code. Therefore, decompilation is the process of returning the unreadable object code back to the readable source code. [FN39]

During the recent adaptation of current intellectual property law to the area of emerging technology, the manufacturers of intellectual property have suffered several recent defeats in their attempt to expand control over their product and the impact of emerging technologies. The first setback occurred in 1984 when the United States Supreme Court decided the Sony case and held that the recording of a copyrighted television program for the purposes of "time shifting" was a fair use. [FN40] The Court stated in Sony that any "challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work." [FN41] Therefore the copyright owner has the burden of proving the damage or potential damage of noncommercial fair use infringers.

Subsequent courts have further expanded the scope of the fair use doctrine by ruling that decompilation of computer programs can be a fair use under certain circumstances. The landmark Sega case in 1992 held that "[w]here there is good reason for studying or examining the unprotected aspects of a copyrighted computer program, disassembly for purposes of such study or examination constitutes a fair use." [FN42] The Sega case involved the attempt of a rival computer game manufacturer, Accolade, to reverse engineer a code necessary for software to operate on the Sega console. The court performed the four part test required by §107 and determined that even though the admitted purpose was commercial, the public benefit derived from decompilation outweighed any possible detriment to Sega, the specific codes required for interoperability had questionable originality, and therefore the object code required for software interoperability with the Sega system was not protected by copyright. [FN43]

The Atari case, decided about the same time as Sega, also appeared to recognize a right to decompile. [FN44] The Atari court cites Feist for the proposition that an author may legitimately copy unoriginal, constituent elements from a prior author's work. [FN45] Following that logic, the Atari court states that reverse engineering the object code to get at unprotectable ideas contained within the code constitutes a fair use. [FN46] Unfortunately for Atari, they had previously lied to the Copyright Office in order to obtain the program that they subsequently decompiled. Due to the fact that Atari had not obtained the object through legal means, the court found itself unable to fashion any sort of equitable relief, and further held that Atari's "unclean hands" prevents them from presenting a defense of copyright misuse. [FN47]

In March of 1996, the Eleventh Circuit of the U. S. Court of Appeals decided Bateman v. Mnemonics, and explicitly endorsed the Sega court's view on reverse engineering as fair use. [FN48] The Bateman case involved one company's reverse engineering of a competitor's design for a computer operating system used in automated parking systems, and using the resulting knowledge in the design of a competing system. [FN49] Using an analysis based on the Feist and CAI opinions, the court found that the lower court had committed reversible error based upon the omission of instructions on the ramifications of copying "dictated by compatibility requirements" as well as for instructing the jury to filter out only nonliteral similarities in the "substantial similarity test." [FN50]

Under the current judicial interpretation of the applicable statutes, unless access is otherwise available, the decompilation of copyright protected computer software and hardware for the purpose of revealing and understanding unprotected elements in the source code is established as a matter of law. [FN51] Therefore, it is imperative to determine what portions of the work is unprotected by copyright. Whelan was the first major attempt to expand the copyright protection available to computer programs beyond the literal object and source code. Contemporary courts continue to agree with Whelan that protection extends beyond the literal code, but the scope of protection afforded by Whelan has been widely criticized. [FN52] The recent Bateman decision does not even mention Whelan.

Recent courts have completely replaced the expansive Whelan test for copying nonliteral program elements with the "abstraction-filtration-comparison" test used in CAI. [FN53] Under the CAI test, a program's nonliteral structure is first broken down into its constituent parts, then the unprotectable elements are filtered out, leaving only the protected elements for comparison with the allegedly infringing program. [FN54] The CAI decision defines three categories of program elements that are unprotected. First, the CAI court invokes merger doctrine to eliminate "elements dictated by efficiency." Merger doctrine states that "[w]hen there is essentially only one way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression." [FN55] The CAI court also cites the National Commission on New Technological Uses of Copyrighted Works Report for the proposition "that when specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to infringement." [FN56] Second, the CAI court filters out "elements dictated by external factors", which is meant to include elements necessary only for compatibility with specific machines or programs, design standards or widely accepted programming practices. [FN57] Finally, any elements that are in the public domain are filtered out from comparison to deny protection to for elements that are "if not standard, then commonplace in the computer software industry." [FN58] Not surprisingly, the CAI test filters out considerably more nonliteral elements than the previous Whelan test.

In the area of copyright, the current legal trend has been to expand the scope of public access to protected and nonprotected materials. The recent Bateman decision should have quieted any nagging doubts concerning the decompilation of software. Also, the swing away from the Whalen test for copying nonliteral elements has permitted fledgling authors to provide much greater interoperability with existing software. Further, anyone who claims that current intellectual property law is inhibiting expression should examine the cornucopia of available software and online material.

The Future According to the White Paper

From the perspective of the purveyors of intellectual property, there is nothing worthy or honorable about decompilation. Persons selling any intellectual property have already invested their time and money in the development of their software. The authors of the program receive no direct benefit from another person subsequently disassembling the existing work for their own purposes. Unless the producer eventually hires the decompiler, any knowledge gained by the disassembly of the program will not be used for the benefit of the producer. Therefore, the producers of copyrighted intellectual property have a vested interest in maintaining the maximum amount of control over their works. Unfortunately, intellectual property is protected for the purpose of making more material accessible to the public, not for the benefit of its producers.

Clearly, the producers of computer software have been alarmed by the recent slant of courts towards recognizing decompilation as fair use. Correspondingly, Clinton's creation of the IIFT provided them with an opportunity to modify the existing law to meet their new concerns. As a result, both bills now being debated in Congress contain provisions that have the potential to outlaw the decompilation of software as well as other fair uses. Both the Senate and House bills propose adding a Chapter to the Copyright Act entitled "Copyright Protection and Management Systems" that will enable software manufacturers to control the decompilation of their products. [FN59]

Section 1201 of the proposed legislation provides that:
No person shall import, manufacture or distribute any device, product, or component incorporated into a device or product, or offer or perform any service, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without the authority of the copyright owner or the law, any process, treatment, mechanism or system which prevents or inhibits the violation of any of the exclusive rights of the copyright owner under section 106. [FN60]

First, the statute is designed to proscribe devices whose "primary purpose or effect" is to thwart copy protection schemes. Unfortunately, there is currently no universally accepted method for the copy protection of software. Under the Act, any number of copy protection schemes could be implemented using an almost infinite number of different methods. As increasing numbers of different copy protection schemes are utilized, it becomes harder to identify which products could be interpreted as having a "primary purpose or effect" of circumventing any copy protection scheme. [FN61] Rather, the appropriate test for copyright infringement should be the standard established in Sony, requiring that the legitimate uses for a device must also be examined. [FN62]

Further, the statute enables producers to implement any copy protection scheme designed to protect any of the owner's exclusive rights. Under this construction, a copy protection scheme may be used to shield not just the protected speech but also the unprotected elements also contained within the program. There is absolutely no language anywhere in the legislation that requires that copy protection schemes be designed in such a way as to afford access to the unprotected elements. Instead, it would be far more advantageous to simply copy protect the entire work and thereby shield the otherwise uncopyrightable elements. [FN63] It may even be possible control entirely non-copyrightable materials by the use of copy protection.

The legislation further eliminates any need to conduct §107's four part test because fair use is simply not an available defense under the statute. Therefore, recent decisions enhancing individual rights under the fair use doctrine, like Sega and Bateman, will no longer be applicable. Even at first glance, it is clear that the statute makes no mention of fair use, or any reference to §107. According to the text of the bill, there is absolutely no difference between the circumvention of a protection scheme for an entirely legitimate use and circumvention for the purpose of unlawfully violating the copyright. Thus, it wrongfully assumes a sinister motive for anyone who would venture to bypass a copy protection scheme.

While §1201 provides for copy protection schemes, the following section provides for additional protection in the form of copyright management systems. According to section (c), copyright management systems contain information on the identity of the author, copyright holder, conditions of use, as well as other information. Additionally, this section is plagued by many of the same shortcomings found in the previous section. As before, the potential for a myriad of management systems presents the possibility for uncertainty as to exactly what constitutes a violation. Section 1202 also contains no language that would prohibit the placement of copyright management data on works or elements of works that are non-copyrightable. Further, no specific accommodation is made for those who would be forced to remove or alter the management data during the course of fair use. It is also important to note that, unlike the previous section, violation §1202 may subject a person to criminal as well as civil liability.

The legislation proposed by the supporters of the IITF White Paper is clearly an attempt by the manufacturers of intellectual property to circumvent existing case law in their attempt to assert unwarranted control over their works. The proponents of the legislation claim that their modifications are simply "a clarification to ensure that copyright owners are provided with incentives to create works for the NII." [FN64] Rather than a clarification, what the White Paper proposes is the wholesale elimination of the CAI "abstraction-filtration-comparison" test. Courts will no longer have to decide what elements of the specific computer software are protectable, whether the use qualifies as fair use, or whether a copyright violation has even taken place at all. Instead, civil and criminal remedies will be available to the copyright owner for any tampering with a copyright protection or management system. Further, copyright owners will be free to utilize any copy protection scheme regardless of the effect on the accessibility of unprotected elements within the work.

Not surprisingly, the Software Publishers Associationhas heralded the White Paper as a "milestone" shortly after its publication. [FN65] The S.P.A. would like nothing more than swift ratification and implementation of the changes to copyright law. Tragically, the supporters of the legislation fail to recognize that "[t]he primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.'" [FN66] The proponents of the White Paper fail to even address the issue correctly when they claim that "for centuries… Congress and the courts protected authors and artists from those who would otherwise hijack their works," then subsequently fail to assert any reasons why current copyright law is suddenly unable to cope with new technology. [FN67]


Adapting intellectual property law to meet the demands of today's computer technology presents many challenges to traditional copyright law. Over time, copyright has become the protection of choice for the manufacturers of computer software. Computer programs present several issues not present with other copyrightable materials. Fortunately, courts have been able to conform existing intellectual property law to the needs of today's technology. In response to recent decisions expanding the scope of fair use concerning computer code, purveyors of intellectual property are attempting to modify the existing statutory law to eliminate many of their concerns. However, this recent legislation is seriously flawed in several major ways. First, manufacturers are allowed unlimited discretion in deciding the scope of what is to be protected by their copyright protection and management systems. Second, once computer code is protected by either system, no inquiry is necessary as to the copyrightability of the work. Third, the proposed copyright protection and management provisions make no accommodation for fair use, and can theoretically be used to entirely eliminate fair use. Therefore, any Congressperson interested with the preservation of individual rights should vote against the pending legislation in the House and Senate.


[FN1] S. 1284, H.R. Res. 2441, 104th Cong., 1st Sess. (1995).

[FN2] see Carlton, Jim. U.S. PC Shipments Grew 14% to 15% in Quarter, Despite a Projected Slump, Wall Street Journal, April 29, 1996, at A3; also M. Mitchell Waldrop, Culture Shock on the Networks, 265 SCIENCE 879, 880 (1994).

[FN3] Lewis, Peter H. New Estimates in Old Debate on Internet Use, New York Times, April 17, 1996, at C1.

[FN4] Information Infrastructure Task Force, Working Group on Intellectual Property Rights Intellectual Property and the National Information Infrastructure (1995). Available online via as either an ASCII text file, or a MS Word file, or a PDF file, or a zipped postscript file (hereinafter "White Paper").

[FN5] S. 1284, H.R. Res. 2441, 104th Cong., 1st Sess. (1995).

[FN6] Senator Orrin G. Hatch (sponsor of S.1284), Copyright and The Digital, Global Marketplace, Roll Call , March 11, 1996. available online at

[FN7] U.S. Const. Art. I, § 8, cl. 8, available online at

[FN8] Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 at 156 (1975).

[FN9] Fogerty v. Fantasy, Inc., 114 S. Ct. 1023 at 1030 (1994).

[FN10] 17 USCA § 101 (1995). "A 'computer program' is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." Available online at

[FN11] Karjala, Dennis S., Copyright Protection of Computer Documents, Reverse Engineering, and Professor Miller, 19 U. Dayton L. Rev. 975 (1994) (hereinafter "Karjala").

[FN12] Id.

[FN13]17 U.S.C. § 101 (1995).

[FN14] Karjala at 4 n. 8, n.10.

[FN15] for a more detailed discussion of the patent/copyright issue, see Miller, Arthur R. Copyright Protection For Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU? 106 Harv. L. Rev. 977 (March 1993), also Karjala.

[FN16] 17 U.S.C. § 102(a) (1995) available online at

[FN17] Id.

[FN18] 17 U.S.C. § 102(a)(1) (1995).

[FN19] H.R.Rep. No. 1476, 94th Cong., 2d Sess. 54 (1976).

[FN20] 17 U.S.C.A. § 102(b) (1995).

[FN21] Bateman v. Mnemonics, Inc. 1996 WL 128141 n.23 (11th Cir.(Fla.)) (hereinafter "Bateman") available online at

[FN22] 17 U.S.C.A. § 106 (1995) available online at

[FN23] 17 U.S.C.A. § 501(a) (1995) available online at

[FN24] 17 U.S.C.A. §107 (1995) available online at

[FN25] 17 U.S.C.A. §107(1) (1995).

[FN26] 17 U.S.C.A. §107(2-3) (1995).

[FN27] 35 Stat. 1075 (1909).

[FN28] When overhauling the Copyright in 1976, the authors "intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way." H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., p. 66 (1976).

[FN29] Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 at 345-46, 111 S.Ct. 1282 at 1287-88, (Mar 27, 1991) (hereinafter "Feist") available online at

[FN30] Id. 499 U.S. at 343, 111 S.Ct. at 1286.

[FN31] Id.

[FN32] Id. 499 U.S. at 344, 111 S.Ct. at 1287.

[FN33] Id. 499 U.S. at 345, 111 S.Ct. at 1287.

[FN34] Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 (3rd Cir.(Pa.), Aug 04, 1986) available online at

[FN35] see Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 855 n. 3 (2d Cir.1982) (source code); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1246-47 (3d Cir.1983) (source and object code), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690 (1984); Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870 (3d Cir.1982) (object code).

[FN36] Whelan at 1234-6.

[FN37] see CMAX/Cleveland, Inc. v. UCR, Inc., 804 F.Supp. 337 (M.D.Ga., Sep 25, 1992) (rejected Whelan); Computer Associates Intern., Inc. v. Altai, Inc., 775 F.Supp. 544, (E.D.N.Y., Aug 09, 1991) (disagreed with Whelan) (hereinafter "CAI") available online at; Plains Cotton Co-op. Ass'n of Lubbock, Texas v. Goodpasture Computer Service, Inc., 807 F.2d 1256 (5th Cir.(Tex.), Jan 21, 1987) (declined to follow); Apple Computer, Inc. v. Microsoft Corp., 799 F.Supp. 1006, (N.D.Cal., Aug 07, 1992) (called into doubt).

[FN38] For a better definition of source code and object code, see E.F. Johnson Co. v. Uniden Corp. of America, 623 F.Supp. 1485 at 1488 (D.Minn.1985).

[FN39] Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 UCLA L.Rev. 1, 32 n. 110 (1995) (hereinafter "Kreiss").

[FN40] Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774 (U.S.Cal., Jan 17, 1984) (hereinafter "Sony") available online at

[FN41] Id. 464 U.S. at 451, 104 S.Ct at 793.

[FN42] Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir.(Cal.), Oct 20, 1992) (hereinafter "Sega") available online at

[FN43]Sega at 1522.

[FN44] Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832 (Fed.Cir.(Cal.), Sep 10, 1992) (hereinafter "Atari") available online at

[FN45] Feist at 499 U.S. at 350, 111 S.Ct. at 1290.

[FN46] Atari at 843.

[FN47] Id. at 846-847.

[FN48] Bateman at 3, n.18.

[FN49] Id. at 1-3.

[FN50] Id. at 12.

[FN51] Sega at 1514.

[FN52] see CAI at 705.

[FN53] Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823 (10th Cir.1993); also Bateman at 7.

[FN54] CAI at 702-711.

[FN55] Concrete Machinery Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st Cir.1988).

[FN56] National Commission on New Technological Uses of Copyrighted Works, Final Report 1, at 20 (1979) (hereinafter "CONTU") available online at

[FN57] CAI at 709-710.

[FN58] CAI at 710.

[FN59] S. 1284, H.R. Res. 2441, 104th Cong., 1st Sess. (1995).

[FN60] Id.

[FN61] Home Recording Rights Coalition, The "Primary Purpose or Effect" Standard, Without Legal or Technical Guidelines, Is Unfair and Unworkable (1996) available online at

[FN62] Sony at 464 U.S. at 442, 104 S.Ct at 788-9.

[FN63] Home Recording Rights Coalition, Inadvertantly Circumventing Technological Protection Systems (1996) available online at

[FN64] Eight Myths About the NII Copyright Protection Act available online at

[FN65] Software Publishers Association, SPA Greets White House Report as "Milestone on the Digital Highway" There Are No Border Guards in Cyberspace (Sept. 5, 1995) available online at

[FN66] Feist 499 U.S. 340 at 349, 111 S.Ct. at 1290. (1991).

[FN67] Newcomb, Jon. Letter to the Editor of Wired, (1996) available online at

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