The Uneasy Case for Software Copyrights Revisited

Forty years ago, Justice Stephen Breyer expressed serious doubts about the economic soundness of extending copyright protection to computer programs in his seminal article, The Uneasy Case for Copyright. A decade later, Congress enacted legislation to protect programs through copyright law, notwithstanding Breyer’s cogently expressed doubts. This Article revisits The Uneasy Case to consider whether Breyer’s skepticism about copyright for computer programs was warranted at the time, as well as whether the case for copyrighting computer programs has become easier over time. As to the first question, the answer is yes; Breyer’s skepticism was warranted at the time. As to the second question, the answer is also yes; the case for copyrighting computer programs did become easier over time.
As Breyer observed, the mere fact that computer programs are expensive to develop and cheap to copy does not mean that copyright protection should be available for them. The more important issue is whether program developers are able to recoup the costs of development in a meaningful way; copyright protection may not be necessary to achieve this goal. Breyer was astute in his empirical approach to assessing the state of this industry in considering how it bore on the economic argument for copyright protection. Breyer showed that, in 1970, there were numerous ways that firms recouped investments in software; hence, the state of the industry at that time provided scant support for copyrighting computer programs. Yet Breyer was remarkably prescient in articulating a set of economic indicators that— should they occur (and, in fact, they did)—would strengthen the case for copyright for computer programs.

Pamela Samuelson

The George Washington Law Review

September 2011

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