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17 Cardozo Arts & Ent. L.J. 691 (1999)
New Lyrics for an Old Melody: The Idea/Expression Dichotomy in the Computer Age

handle is hein.journals/caelj17 and id is 703 raw text is: NEW LYRICS FOR AN OLD MELODY: THE IDEA/ EXPRESSION DICHOTOMY IN THE COMPUTER AGE* HONORABLE JON 0. NEWMAN The computer era has presented new challenges to all seg- ments of society, so it should come as no surprise that these chal- lenges arise in the domain of law in general and copyright in particular. It should also not be surprising that our initial efforts to meet these challenges have not been entirely successful. After all, if the programmers could not anticipate that the year 2000 would not be just one year after 1999 but in another century' - one in which computers would be thinking that 2000 is 1900 - the legal community ought to be forgiven for not immediately adapting its doctrines to the demands of cyberspace. Among the major challenges the computer age poses for copy- right law is how to draw the line with respect to digital materials - mostly software2 - between what is protectable by copyright and what is available to be copied. The instinct of many judges, lawyers, and commentators has been to start with the idea/expression di- chotomy and then struggle to adapt this basic continental divide to digital materials. The effort has thus far led to two deficiencies in our approach - deficiencies that have been recognized insuffi- ciently, if at all. Moreover, unless we begin to notice what has hap- pened and seriously consider whether our approaches are sound, we risk not only a deficient approach to copyright issues concern- ing digital materials, but also an unwise corruption of previously sound approaches to copyright issues concerning non-digital materials. These two deficiencies of decision-making in the copyright * This Article is adapted from the Sixth Annual Herbert Tenzer Distinguished Lecture in Intellectual Property Law, given at the Benjamin N. Cardozo School of Law, October 22, 1998. ** Circuit Judge, United States Court of Appeals for the Second Circuit. 1 Purists would no doubt point out that the year 2000 is the last year of the twentieth century, not the first year of the twenty-first century, just as it is the last year of the second millennium, not the first year of the third millennium. But as others have observed, those who wait until midnight on December 31, 2000, to celebrate the start of the new century and the new millennium will have missed a lot of excitement on December 31, 1999. 2 1 say mostly software because the Is and Os of object code that make source code readable by a computer can be embodied either in software on floppy disks or CD-ROMS, or in the hardware of a computer itself. See Pamela Samuelson et al., A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308, 2319 (1994).

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