Copyright Protection of Computer Software: Has Look and Feel Crashed?
Let me take the more global question first: Is copyright the appropriate body of law with which to protect computer software? Ten years ago, I would have argued—indeed I did argue—that it was not. If we were beginning today with a completely clean slate on which to write software protection, I would still argue that copyright would be an unfortunate choice of a home for software protection law. But we're not writing on a clean slate. We have not only spent years adjusting copyright to software protection and software protection to copyright, we've also muscled all of our trading partners into adopting copyright protection for software. Some of them accepted the copyright paradigm only reluctantly and we would not be behaving as good world citizens if we suddenly announced, "Whoops, sorry, we were wrong about that; we're giving up on the copyright model." So I think that whether copyright is the most appropriate vehicle for software protection or not, our decision to leave software protection within the copyright statute is a done deal. What we've got to figure out now is how best to assimilate software protection to the copyright model.
Walker, John M., Jr., Jessica D. Litman, Susan G. Braden, Anthony Clapes, Henry Gutman, Rochelle Cooper Dreyfuss, and Marci Hamilton. "Copyright Protection of Computer Software: Has Look and Feel Crashed?" Cardozo Arts & Entertainment Law Journal 11, no. 3 (1992): 721-63. (Professor Litman's contribution appears on pages 735-41. Work published when author not on Michigan Law faculty.)