Courts considering the alleged copying of the structure, rather than literal copying of the text, of a computer program have usually concerned themselves with whether protected expression or an unprotected idea was copied. Courts have seldom suggested that it might be an unprotected process that was copied. However, this Note concludes that the legislative history of the 1976 Act indicates that that legislation's drafters envisioned a far more prominent role for the process-expression dichotomy than it has played to date. The process inquiry is at least as important as the idea inquiry in striking the proper balance between promoting progress in the computer art, by granting incentives to create, and impairing progress, by limiting access to utilitarian innovations. This Note develops and describes complementary techniques for distinguishing both unprotected idea and unprotected process from protected expression within the context of computer program structure.

Part I of this Note briefly introduces fundamental aspects of the computer art10 and relevant ·concepts of copyright law to provide a working background for the analysis that follows. Courts have sometimes appeared not to be fully aware of important elements of the computer art and the nature of progress in. that art; this lack of awareness has sometimes operated to the detriment of the goals of copyright law. Part II discusses the threshold question whether copyright protection of a computer program should ever extend beyond the literal instructions of that program to its structure. To determine the proper scope of protection, this Part examines the relevant case law, legislative history, and policy considerations and concludes that established copyright doctrines support some protection for the structures of computer programs. Part III proposes an approach for determining when the copyright in a computer program has been infringed by the copying of its structure and describes the use of this approach. within a conventional copyright infringement analysis. This approach differs from existing attempts to address the issue in two ways. First, it gives full effect to both the idea-expression and process-expression dichotomies. Second, it adheres more closely to traditional copyright doctrine than existing approaches. This Note's approach seeks properly to balance the goal of promoting progress in the computer art by providing an incentive to create new programs with the fear of impairing progress in that art by allowing monopolization of ideas or processes.