"Copyright law already recognizes that code, both source and
object, may be copyrighted as a literary work or an original work
of authorship. 17 U.S.C. 102(a)(1). It does not take a leap of
faith to say that a copyrightable literary work is a work entitled
to full First Amendment protections, regardless of its
"The law does not allow for the copyright of abstract ideas,
procedures, processes, methods of operation, facts, or even "sweat
of the brow" compilations of facts. ... Stated otherwise, copyright
is proper only for particular expressions of ideas, including ideas
expressed in "literary works."
"The fact that computer code is copyrightable means that it
is protected by the First Amendment. Copyright law, of which DMCA
is a part, confirms the point:
In view of the First Amendment protections already
embodied in the Copyright Act's distinction between copyrightable
expression and uncopyrightable facts and ideas, and the latitude
for scholarship and comment traditionally afforded by fair use, we
see no warrant for expanding the doctrine of fair use ...."
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