Copyright Protection of Computer Software, Reverse Engineering, and Professor Miller

The debate continues to rage over the proper place of computer programs within the copyright protective scheme. The debate is not over copying of code for resale or for the purpose of creating a usable second program to accomplish the function intended by its author, but rather, over what other aspects of program technology, beyond literal code, should be protected by the copyright in the program. There are three associated problems: the scope of copyright protection in a program; the copyright protection of interfaces, especially user interfaces; and the reverse engineering of programs. Professor Arthur R. Miller recently contributed to the ongoing debate with his article reviewing the development of copyright protection for programs in the United States and criticizing Sega Enterprises Ltd. v. Accolade, Inc., which held that the reverse analysis of a program can constitute a non-infringing fair use. Professor Miller is comfortable with bringing broad aspects of software technology, beyond program code, under the copyright umbrella, but he never explicitly attempts to justify the fundamental policy switch from patent protection to copyright protection. Computer programs are a unique class of copyright-protected work because of their inherent functionality. While program code has been brought within copyright protection for good reason, going beyond code to protect functional aspects of computer programs requires policy justification. This article demonstrates that Professor Miller's arguments neither make the case even as a matter of technical copyright interpretation nor a as a policy justification for ignoring functionality. In short, the Sega court got it right