CONTU revisited: the case against copyright protection for computer programs in machine-readable form

Professor Samuelson casts a critical eye on the Final Report of the National Commission on New Technological Uses of Copyrighted Works (CONTU) which recommended that copyright protection be extended to machine-readable versions of computer programs. CONTU appears to have misunderstood computer technology and misinterpreted copyright tradition in two significant respects. The Commission failed to take into account the historical importance of disclosure of the contents of protected works as a fundamental goal of both the copyright and patent laws. It also erroneously opined that the utilitarian character of a work was no bar to its copyrightability when both the statute and the case law make clear that utilitarian works are not copyrightable. Since computer programs in machine-readable forms do not disclose their contents and are inherently utilitarian, copyright protection for them is inappropriate. Congress acted on CONTU's recommendation without understanding the significance of these conceptual flaws. Professor Samuelson recommends the creation of a new form of intellectual property law specifically designed for machine-readable programs.