Copyright Nonsense

In my Copyright Law class, I’m teaching a fairly well-known (in copyright circles) trilogy of cases from the 9th Circuit on the permissible scope of copying of computer software (MAI v. Peak Computer, 991 F.2d 511 (1993), Triad Sys. v. Southeastern Express 64 F.3d 1330, (1995), and Wall Data, v. Los Angeles County Sheriff’s Dep’t, 447 F.3d 769 (2006).  I came across this in the Wall Data opinion; here’s the entire first paragraph at the very start of the “Analysis” section of the opinion [447 F3d 776-7]:

“The 1976 Copyright Act defines a ‘computer program’ as ‘a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.’  We have long held that a computer program is copyrightable as a ‘tangible medium of expression.’  Apple Computer, Inc. v. Formula Int’l, Inc., 725 F.2d 521, 524-25 (9th Cir. 1984).”

That second sentence is really egregious; nobody who knows the first thing about copyright law would write a sentence like that, and nobody who knows the first thing about copyright law would leave it in a document they were writing.  “A computer program is copyrightable as a ‘tangible medium of expression.”  It’s gibberish; I would deduct points from a 1L exam for a sentence like that one.  To anyone who knows the first thing about copyright law, it’s like fingernails on the blackboard.

What the court meant to say was something like:  We have long held that a computer program is a copyrightable work of authorship that receives protection as soon as it is embodied in ‘a tangible medium of expression.’  Not ‘as a tangible medium,’ but ’embodied in a tangible medium.’

It’s not too big a deal for the case itself – the defendant was not really disputing that the plaintiff’s computer programs were protected by copyright, so nothing much really turns on it.  But it’s not trivial, either – the relationship between the “copyrightable work” (in this case, the computer program) and the “tangible medium of expression” (the statutory phrase describing the material object in which the work is embodied, like a hard disk or CD), is quite fundamental to understanding the way that copyright law works.

But really – in 2006, on the 9th Circuit, in a case that involved some pretty complicated copyright issues that somebody had to be studying (a clerk?  at least one of the judges??), nobody noticed that the sentence at the very start of the substantive portion of the opinion was complete and utter nonsense?  (Pregerson, Schroeder, and Trott were the judges).  And nobody has taken the trouble to correct the error by amending the opinion?  Here’s the syllogism:

If you know anything about copyright law, you fix this sentence because it makes no sense.

The court did not fix the sentence.

It doesn’t know anything about copyright law.

As consumers of judicial opinions, aren’t we entitled to ignore everything the court says later in the opinion about copyright law, since they obviously don’t know what they’re talking about?

And shouldn’t there be a public repository where opinions like this are shown to contain utter nonsense so that the rest of us can ignore them?


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