Full opinion text
KEETON, District Judge. The expression of an idea is copyrightable. The idea itself is not. When applying these two settled rules of law, how can a decisionmaker distinguish between an idea and its expression? Answering this riddle is the first step— but only the first — toward disposition of this case in which the court must decide, among other issues, (1) whether and to what extent plaintiff’s computer spreadsheet program, Lotus 1-2-3, is copyrightable, (2) whether defendants’ YP-Planner was, on undisputable facts, an infringing work containing elements substantially similar to copyrightable elements of 1-2-3, and (3) whether defendants’ proffered jurisdictional and equitable defenses are meritorious. Phase One of this case was tried to the bench. By agreement of the parties, in Phase One, the court shall resolve all legal and factual issues concerning the liability, if any, of defendants ... for the claims of copyright infringement brought by plaintiff ... and all defenses thereto, including but not limited to all factual and legal issues concerning the copyrightability of Lotus’ Works [1-2-3, releases 1.0, 1A, and 2.0], and excluding only: (1) issues of fact, if any, requiring jury determination concerning defendants’ alleged copying of any protected expression from Lotus’ Works in Defendants’ Works [VP-Planner and VP-Planner Plus]; [and] (2) factual issues concerning defendants’ possible copying of the source or object code for Lotus’ Works____ Stipulation and Order Regulating Phased Trial, § 1(A) (Docket No. 246). This Opinion sets forth findings of fact and conclusions of law that are central to deciding this controversy. Fed.R.Civ.P. 52(a). The court adopts, as additional findings, all proposed findings to which no party objected. See Docket Nos. 250, 251. The outcome of this case depends on how this court, and higher courts on appeal, should answer a central question about the scope of copyrightability of computer programs. For the reasons explained in this Opinion, I conclude that this question must be resolved in favor of the plaintiff, Lotus. I. A BACKGROUND STATEMENT ABOUT COMPUTERS, COMPUTER PROGRAMS, AND COPYRIGHT-ABILITY Though their influence in our society is already pervasive, digital computers— along with computer “programs” and “user interfaces” — are relatively new to the market, and newer still to litigation over “works” protected by intellectual property law. Digital computers (hereinafter referred to as “computers”) are machines currently used to perform three types of functions electronically: (1) arithmetic calculations; (2) logical operations (e.g., comparing values to determine whether one is larger); and (3) storage and display of the results. Because computers can perform millions of operations of these types in a single second, they can be used to solve problems too complex, or too repetitious and boring, to be solved manually. Developments to the current state of the art have already transformed many areas of business, educational, and recreational activity, and they support speculations about more striking achievements in the future. A personal computer system consists of hardware and software. The hardware includes the central processing unit (“CPU”), which contains the electronic circuits that control the computer and perform the arithmetic and logical functions, the internal memory of the computer (“random access memory,” or “RAM”), input devices such as a keyboard and mouse, output devices such as a display screen and printer, and storage devices such as hard and floppy disk drives. The software includes one or more computer programs, usually stored magnetically on hard or floppy disks, along with such items as instruction manuals and “templates,” which are pieces of plastic that fit around the function keys on the keyboard, identifying the specific functions or commands that can be invoked by those keys. A personal computer system can also include “firmware,” or “microcode”: Microcode is a set of encoded instructions ... that controls the fine details of the execution of one or more primitive functions of a computer. Microcode serves as a substitute for certain elements of the hardware circuitry that had previously controlled that function. Samuelson, CONTU Revisited: The Case Against Copyright Protection for Computer Programs in Machine-Readable Form, 1984 Duke L.J. 663, 677. Computer programs are, in general, divided into two types: operating system programs and application programs. Operating system programs — such as DOS, XE-NIX, and OS/2 — are programs that control the basic functions of the computer hardware, such as the efficient utilization of memory and the starting and stopping of application programs. Application programs are programs that permit a user to perform some particular task such as word processing, database management, or spreadsheet calculations, or that permit a user to play video games. This case concerns two competing application programs — Lotus 1-2-3 and VP-Planner — which are primarily spreadsheet programs, but which also support other tasks such as limited database management and graphics creation. Programs such as these, because they can perform several different kinds of tasks, are called “integrated” application programs. Congress has defined “computer program” as follows: A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. 17 U.S.C. § 101 (1988). This “set of statements or instructions,” in its literal or written manifestation, may be in the form of object code or source code. It may also be represented, in a partially literal manifestation, by a flowchart. A copyrightable work designed for use on a computer may include, as well, text that appears, for example, in a problem manual or a manual of instructions. These elements of text, however, ordinarily are not referred to in the industry as part of a “computer program” unless they appear on the computer screen and serve a purpose like that of the components of a “help screen” available to a user whenever needed. Elements of this textual type are not at issue in this phase of this case. Computer programs are typically written in some form of computer programming “language.” The “lowest”-level computer programming language is machine language, which is a binary language written in “bits” (5/nary digiJIS). Each bit is equal to one binary decision — that is, to the designation of one of two possible and equally likely values, such as an “on”-“off” or “yes” — “no” choice. These binary decisions, the only kind that a typical computer can understand directly, are commonly represented by 0’s and l’s. A sequence of eight bits (which allows 256 unique combinations of bits) is commonly called a “byte” (“by eight”), and 1024 bytes form a “kilobyte” (commonly referred to as “K,” e.g., sixty-four kilobytes is “64K”). Machine language may also be represented in hexadecimal form, rather than in binary form, by the characters 0-9 and A-F, where “A” represents 10, “B” represents 11, and so on through “F,” which represents “15.” In hexadecimal machine language, only two rather than eight characters are required to allow for 256 unique combinations {e.g., 37 instead of 00110111, each of which represents the 55th of 256 combinations; 7B instead of 01111011, each of which represents the 123rd of 256 combinations; EA instead of 11101010, each of which represents the 234th of 256 combinations). The computer is able to translate these hexadecimal instructions into binary form. Other versions of machine language are represented in decimal (0-9) and octal (0-7) form. An object program, or object code, is a program written in machine language that can be executed directly by the computer’s CPU without need for translation. For example, in the machine language of a certain computer, the instructions to divide the value in “B” by the value in “C” and add that number to the value in “A” may be represented by the following sequence of instructions (in binary form): 0010000000010001; 1000000011010010; 1101000000010000. An “intermediate”-level programming language is assembly language. Rather than in bits, assembly code is written in simple symbolic names, or alphanumeric symbols, more easily understandable by human programmers. For example, the calculation described above may be represented, in the assembly language of a certain computer, as follows: LOAD B; DIY C; ADD A. Because of the primitive nature of assembly language, even relatively simple computations can require long and complex programs. During the early period of computing, “programmers” ordinarily wrote programs exclusively in machine language. Today, object code is rarely written directly by computer programmers. Rather, modern programmers typically write computer programs in a “higher”-level programming language. These programs are called source programs, or source code. Although “source code” has been defined far more broadly in some of the literature in the field, and in some of the expert testimony in this case, more commonly the term “source code” refers to a computer program written in some programming language — such as FORTRAN {FOR mula TbANslation), COBOL {CO mmon business O riented L anguage), Pascal, BASIC, or C — that uses complex symbolic names, along with complex rules of syntax. In a typical higher-level programming language, for example, the above-described computation — that is, (A) + (B/C) — might be represented as follows: A + B/C. Unlike machine language, which is unique to each kind of CPU and which is executed directly by the computer, source code programming languages are universal to almost all computers. As a consequence, source code is executed indirectly. Thus, a program written in source code must be translated into the appropriate object code for execution in one type of computer, and into a different object code for execution in another type of computer. The translation can be effectuated by an “interpreter” program or by a “compiler” program. An “interpreter” program is a simultaneous translator that works in conjunction with the application program every time the application program is run, carrying out the instructions of the program one step at a time. In contrast, a “compiler” program translates the program once and for all nto machine language, after which the translated program can be executed directly by the CPU without the need for any further resort to the compiler. A distinctive “interpreter” or “compiler” program is available for each type of source code programming language and each type of CPU. A partly literal and partly pictorial manifestation of a computer program, still farther removed from direct use with the computer, is the flowchart. A flowchart is a graphic representation of a computer program that is written in symbols, rather than in bits or symbolic names, and with a syntax that is graphic rather than grammatical. See, e.g., Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv.L.Rev. 281, 341 n. 235 (1970) (providing simple flowchart). A flowchart can be thought of as a kind of symbolic outline or schematic representation of a computer program’s logic, which is written by a programmer once he or she has a conceptualization of the goals of the program. Creating a flowchart (at least, an early draft) is thus, typically, an early phase in the development of a software system, which is followed by the translation of the flowchart into source code. See Menell, An Analysis of the Scope of Copyright Protection for Application Programs, 41 Stan.L.Rev. 1045, 1051 (1989) (identifying five stages in the development of most application programs: (1) defining the desired task; (2) flowcharting; (3) encoding; (4) debugging; and (5) preparing documentation). On computers and computer programs in general, see Lewis Affidavit, HU 18-42 (Docket No. 274); Galler Declaration, ¶¶1 8-20 (Docket No. 257); A. Clapes, Software, Copyright & Competition: The “Look and Feel’’ of the Law 47-64 (1989); R. Bradbeer, P. DeBono & P. Laurie, The Beginner’s Guide to Computers (1982); McGraw-Hill Dictionary of Scientific and Technical Terms (3d ed. 1984). The parties agree, as a general proposition, that literal manifestations of a computer program — including both source code and object code — if original, are copyrightable. Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 855 n. 3 (2d Cir.1982) (“written computer programs are copyrightable as literary works”); Williams Electronics Inc. v. Artie International, Inc., 685 F.2d 870, 876-77 (3d Cir.1982) (object code copyrightable); Hubco Data Products, Corp. v. Management Assistance Inc., 219 U.S.P.Q. 450, 454 (D.Id.1983) (same); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1243 (3d Cir.1983) (source and object code copyrightable), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984); GCA Corp. v. Chance, 217 U.S.P.Q. 718, 720 (N.D.Cal.1982) (same); Midway Manufacturing Co. v. Strohon, 564 F.Supp. 741, 750 (N.D.Ill.1983) (same); Digital Communications Associates, Inc. v. Softklone Distributing Corp., 659 F.Supp. 449, 454 (N.D.Ga.1987) (same). Also, it appears that flowcharts, if sufficiently detailed and original, are entitled to copyright protection: Flowcharts ... are works of authorship in which copyright subsists, provided they are the product of sufficient intellectual labor to surpass the “insufficient intellectual labor hurdle”____ National Commission on New Technological Uses of Copyrighted Works, Final Report and Recommendations 43 (1978) (hereinafter “Final Report”), reprinted in 5 Copyright, Congress and Technology: The Public Record (N. Henry, ed.1980), cited with approval in Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1241 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987). See also Synercom Technology, Inc. v. University Computing Co., 462 F.Supp. 1003, 1013 n. 5 (N.D.Tex.1978) (although taking a very narrow view of the scope of copyrightability of nonliteral elements of computer programs, court nevertheless noted in obiter dictum that “it would probably be a violation to take a detailed description of a particular problem solution, such as a flowchart ... and program such a description in computer language”) (Higginbotham, J.); Data Cash Systems, Inc. v. JS & A Group, Inc., 480 F.Supp. 1063, 1067 n. 4 (N.D.Ill.1979) (holding that copyright protection extends “to computer programs in their flow chart, source and assembly phases but not in their object phase,” court concluded that computer program written in object code was not copyrightable), affd on other grounds, 628 F.2d 1038 (7th Cir.1980) (program at issue not copyrightable because publication without notice forfeited any copyright protection); Williams v. Arndt, 626 F.Supp. 571, 578 (D.Mass.1985) (violation to take detailed prose description and program such description in source code). Defendants vigorously dispute, however, the copyrightability of any nonliteral elements of computer programs. That is, defendants assert that only literal manifestations of computer programs are copyrightable. Plaintiff, on the other hand, maintains that copyright protection extends to all elements of computer programs that embody original expression, whether literal or non-literal, including any original expression embodied in a program’s “user interface.” One difficulty with plaintiff’s argument is the amorphous nature of “nonliteral” elements of computer programs. Unlike the written code of a program or a flowchart that can be printed on paper, nonliteral elements — including such elements as the overall organization of a program, the structure of a program’s command system, and the presentation of information on the screen — may be less tangibly represented. Whether these elements are copyrightable, and if so, how the nonliteral elements that are copyrightable may be identified, are central to deciding this case. II. CONSTITUTIONAL CONSTRAINTS In considering the legal issues relevant to whether nonliteral elements of Lotus 1-2-3 are copyrightable, and if so, to what extent, one may appropriately begin with a provision of the Constitution of the United States: The Congress shall have Power ... To promote the Progress of Science ... by securing for limited Time to Authors ... the exclusive Right to their ... Writings ____ U.S. Const., Art. I, § 8, cl. 8. The copyright law, codified in Title 17 of the United States Code, rests upon this explicit grant of legislative authority. Under this constitutional mandate, Congress has broad though not unlimited authority to grant copyright monopolies as needed to promote progress. If Congress were to determine, for example, that copyright protection is unnecessary to “promote the Progress of” computer programming— because, for example, in Congress’ view the financial incentives alone of developing new computer programs (without the added benefit of copyright) are enough to encourage innovation, or because incremental innovation might be stifled by expansive copyright protection — then Congress could, without offending the Constitution, provide no copyright protection for computer programs. At the other extreme, were Congress to find that strong copyright protection is necessary to promote the progress of computer programming, Congress could provide for expansive copyright protection for all aspects of computer programs, again without having strayed beyond the bounds of the constitutionally permissible. Because the constitutional grant of power authorizes Congress to take either path — or to chart some middle course — this case does not raise constitutional issues. Rather, the issues at stake here are issues of statutory meaning. The central question is not whether Congress could render nonliteral elements such as those of 1-2-3 copyrightable, but whether it has done so. Banks v. Manchester, Ohio, 128 U.S. 244, 252, 9 S.Ct. 36, 39, 32 L.Ed. 425 (1888) (“No authority exists for obtaining a copyright beyond the extent to which Congress has authorized it. A copyright cannot be sustained as a right existing at common law; but, as it exists in the United States, it depends wholly on the legislation of Congress.”). III. CONGRESSIONAL MANDATES AND JUDICIAL INTERPRETATION A. Sources of Guidance 1. Precedent on Determining Statutory Meaning In Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (Powell, J., joined by Rehnquist, C.J., and Brennan, White, Blackmun, O’Connor, and Scalia, JJ.), the Supreme Court explained the various sources of guidance to which a court should look in determining the manifested meaning of a statute and the manifestations of congressional intent: [T]he “starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 [95 S.Ct. 1917, 1935, 44 L.Ed.2d 539] (1975) (Powell, J., concurring). But the text is only the starting point. As Justice O’Connor explained last Term, “ ‘ “In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” ’ ” Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 221 [106 S.Ct. 2485, 2493, 91 L.Ed.2d 174] (1986) (quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285 [76 S.Ct. 349, 359, 100 L.Ed. 309] (1956) (in turn quoting United States v. Heirs of Boisdore, 8 How. [49 U.S.] 113, 122 [12 L.Ed. 1009] (1850))). Id. at 43, 107 S.Ct. at 358. Accordingly, to determine whether Congress has extended copyright protection to nonliteral elements of computer programs, and if so, to what extent, a court must examine, first, the relevant language of the copyright statutes, second, “the provisions of the whole law,” and third, “its object and policy.” Id. Examination of these sources exposes mandates inconsistent with the principal argument advanced by defendants — that copyright protection extends only to literal manifestations of computer programs and not to any nonliteral elements. Close examination also discloses that Congress has not explicitly addressed some of the questions that must be decided in this case. In these circumstances, it is appropriate to consider legislative history as well as statutory text. 2. The Statutory Language and the History of Amendments a. Pre-1976 Legislation The First Congress extended copyright protection to “any map, chart, book or books already printed.” Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124 (repealed 1831). Congress quickly expanded this limited scope of copyright protection, adding designs, prints, etchings and engravings in 1802, “musical composition” in 1831, “dramatic composition” in 1856, “photographs and the negatives thereof” in 1865, and “statuary” and “models or designs intended to be perfected as works of the fine arts” in 1870. Act of Apr. 29, 1802, ch. 36, § 2, 2 Stat. 171, 171, repealed by Act of Feb. 3, 1831, ch. 16, §§ 1, 14, 4 Stat. 436, 436, 439, amended by Act of Aug. 18,1856, ch. 169, 11 Stat. 138, 139, amended by Act of Mar. 3, 1865, ch. 126, §§ 1, 2, 13 Stat. 540, 540, repealed by Act of July 8, 1870, ch. 180, § 86, 16 Stat. 198, 212 (repealed 1909). In 1909, Congress abandoned the effort to list exhaustively all works in which copyright may subsist, instead adopting a more generalized approach to copyrightability: The works for which copyright may be secured under this title shall include all the writings of an author. Act of Mar. 4, 1909, ch. 320, § 4, 35 Stat. 1075, 1076 (emphasis added) (previously codified at 17 U.S.C. § 4, reprinted in 17 U.S.C.A. App. § 4 (West Supp.1990); recodified 1947; repealed 1976). To clarify the meaning of “all the writings of an author,” Congress also provided a non-exclusive list of examples. Id. at § 5 (listing the various kinds of works previously entitled to explicit copyright protection). Even this generalized statement of the scope of copyright-ability along with the explanatory list proved inadequate. In 1912, Congress added “motion pictures” as a further example of “all the writings of an author,” Act of Aug. 24, 1912, ch. 356, § 5(l)-(m), 37 Stat. 488, 488 (previously codified at 17 U.S.C. § 5(l)-(m), reprinted in 17 U.S.C.A. App. § 5(l)-(m); recodified 1947; repealed 1976), and in 1972, Congress added “sound recordings” to the list, Act of Oct. 15, 1971, Pub.L. 92-140, § 1(b), 85 Stat. 391, 391 (previously codified at 17 U.S.C. § 5(n), reprinted in 17 U.S.C.A. App. § 5(n); repealed 1976). In 1955, Congress began to consider another major revision of the copyright law. After twenty years of hearings, study, debate, and redrafting, that revision was signed into law in 1976. Act of Oct. 19, 1976, Pub.L. 94-553, 90 Stat. 2541 (codified at 17 U.S.C. §§ 101 et seq.). That law — the Copyright Act of 1976 — and the 1980 amendments to the Act provide the relevant statutory mandates for this case. b. The Copyright Act of 1976 Like the Copyright Act of 1909, the Copyright Act of 1976 eschews the prescription of an exclusive list of the kinds of works that are copyrightable: Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 17 U.S.C. § 102(a) (1988) (emphasis added). It is axiomatic that the designation “original” is not intended to be limited to works that are novel or unique. Rather, the word “original,” which was “purposely left undefined” by Congress, refers to works that have been “independently created by an author,” regardless of their literary or aesthetic merit, or ingenuity, or qualitative value. H.R.Rep. No. 1476, 94th Cong., 2d Sess. 51, reprinted at 1976 U.S. Code Cong. & Admin. News 5659, 5664 (hereinafter “House Report”); Hutchinson Telephone Co. v. Fronteer Directory Co., 770 F.2d 128, 131 (8th Cir.1985); Puddu v. Buonamici Statuary, Inc., 450 F.2d 401, 402 (2d Cir.1971) (“originality has been considered to mean ‘only that the work owes its origin to the author’ ”) (emphasis added; quoting Nimmer, Copyright § 10 at 32 (1971 ed.)). See also Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251, 23 S.Ct. 298, 300, 47 L.Ed. 460 (1903) (Holmes, J.) (“It would be a dangerous undertaking for persons trained only in the law to constitute themselves final judges of the worth of” a work.). Also, the designation “works of authorship” is not meant to be limited to traditional works of authorship such as novels or plays. Rather, Congress used this phrase to extend copyright to new methods of expression as they evolve: The history of copyright law has been one of gradual expansion in the types of works accorded protection, and the subject matter affected has fallen into two general categories. In the first, scientific discoveries and technological developments have made possible new forms of creative expression that never existed before. In some of these cases the new expressive forms — electronic music, filmstrips, and computer programs, for example — could be regarded as an extension of copyrightable subject matter Congress had already intended to protect, and were thus considered copyrightable from the outset without need of new legislation. In other cases, such as photographs, sound recordings, and motion pictures, statutory enactment was deemed necessary to give them full recognition as copyrightable works. Authors are continually finding new ways of expressing themselves, but it is impossible to foresee the forms that these new expressive methods will take. The bill does not intend either to freeze the scope of copyrightable subject matter at the present stage of communications technology or to allow unlimited expansion into areas outside the present congressional intent. House Report at 51, reprinted at 5664 (emphasis added). To help illumine the meaning of “works of authorship,” Congress, as it had done in the 1909 Act, again provided a statutory list of examples of those kinds of works that, if original, merit copyright protection: Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; and (7) sound recordings. 17 U.S.C. § 102(a) (1988). This listing was intended to be “ ‘illustrative and not limitative,’ and ... the seven categories do not necessarily exhaust the scope of ‘original works of authorship’ that the bill is intended to protect.” House Report at 53, reprinted at 5666. Consequently, in addition to these explicitly-listed items, courts have extended copyright protection to such works as artistic features of masquerade costumes, National Theme Productions, Inc. v. Jerry B. Beck, Inc., 696 F.Supp. 1348, 1354 (S.D.Cal.1988); the arrangement of public-domain legal decisions in reporters, West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir.1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987); telephone books, Southern Bell Telephone & Telegraph Co. v. Associated Telephone Directory Publishers, 756 F.2d 801 (11th Cir.1985); televised news reports, Pacific and Southern Co. v. Duncan, 744 F.2d 1490, 1494, reh’g denied, 749 F.2d 733 (11th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985); blank answer sheets for use with student achievement and intelligence tests that are designed to be corrected by optical scanning machines, Harcourt, Brace & World, Inc. v. Graphic Controls Corp., 329 F.Supp. 517 (S.D.N.Y.1971) (applying the 1909 Act); maps, C.S. Hammond & Co. v. International College Globe, Inc., 210 F.Supp. 206, 216 (S.D.N.Y. 1962) (applying the 1909 Act); and a code book for cable correspondence consisting of 6,325 coined, otherwise meaningless, words of five letters each, Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y.1921) (L. Hand, J.) (applying the 1909 Act). Although Congress did not include “computer programs” in this list of examples of “works of authorship,” computer programs fall squarely within the statutory definition of literary works: “Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. 17 U.S.C. § 101 (1988). See also House Report at 54, reprinted at 5667 (“[t]he term ‘literary works’ ... includes ... computer programs”) id. at 51, reprinted at 5664 (“computer programs ... were ... considered copyrightable from the outset”); id. at 116, reprinted at 5731 (1976 Act governs “copyright-ability [sic] of computer programs”). Like all other works of authorship, however, computer programs, even if certain elements of them are copyrightable, are not entitled to an unlimited scope of copyright protection. Most relevant to this case is the following limitation: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 17 U.S.C. § 102(b) (1988) (emphasis added). Noting that this section applies to computer programs, the House Report declares: “Section 102(b) is intended, among other things, to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law.” House Report at 57, reprinted at 5670 (emphasis added);, see also id. at 54, reprinted at 5667 (computer programs are copyrightable only “to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves”) (emphasis added). c. CONTU and the 1980 Amendments Most contemporaneous observers expected that the bill that eventually became the Copyright Act of 1976 would apply to computer programs. Toward the end of the twenty-year process of reconsidering the copyright law, however, Congress recognized that certain problems raised by computer and other new technologies were not adequately addressed in the pending bill. See House Report at 116, reprinted at 5731. Accordingly, in 1974, Congress created the National Commission on New Technological Uses of Copyrighted Works (“CONTU”). Congress gave the Commission the following mandate: (b) The purpose of the Commission is to study and compile data on: (1) the reproduction and use of copyrighted works of authorship— (A) in ‘ conjunction with automatic systems capable of storing, processing, retrieving, and transferring information .... (c) The Commission shall make recommendations as to such changes in copyright law or procedures that may be necessary to assure for such purposes access to copyrighted works, and to provide recognition of the rights of copyright owners. Act of Dec. 31, 1974, Pub.L. 93-573, § 201(b)-(c), 88 Stat. 1873, 1873-74 (1974). It took seven months after enactment of the bill to constitute the Commission and appoint the Commissioners. Because of this delay, CONTU did not begin its deliberations until October 1975, and did not release its report and recommendations until July 1978, almost two years after the passage of the 1976 Act. CONTU observed a need for copyright protection of creative expression embodied in computer programs: The cost of developing computer programs is far greater than the cost of their duplication. Consequently, computer programs ... are likely to be disseminated only if ... [t]he creator can spread its costs over multiple copies of the work with some form of protection against unauthorized duplication of the work____ The Commission is, therefore satisfied that some form of protection is necessary to encourage the creation and broad distribution of computer programs in a competitive market, ... [and] that the continued availability of copyright protection for computer programs is desirable. CONTU, Final Report at 20-21. Concluding, however, that the Act of 1976 already provided adequate protection, CONTU did not propose any statutory changes with respect to copyrightability of computer programs. On the other hand, CONTU did propose two amendments with respect to permissible copying of computer programs. These proposed amendments were subsequently adopted by Congress with only minor modifications and with little additional legislative history. First, tracking verbatim CONTU’s recommendation, Congress amended section 101 to include the following definition: A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. Act of Dec. 12, 1980, Pub.L. 96-517, 94 Stat. 3015, 3028 (codified at 17 U.S.C. § 101). Second, Congress also followed CONTU’s recommendation by amending section 117 to allow the owner of a computer program to make additional copies or adaptations of the program: Notwithstanding the provisions of section 106 [which grants the copyright owner the exclusive rights to reproduce the copyrighted work], it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner. Id. (codified at 17 U.S.C. § 117). Finally, although the Commission did not address explicitly the central issue of the present case — whether copyright protection extends to the nonliteral elements of computer programs at issue here — CONTU did re-emphasize, for purposes of copyright-ability of computer programs, the fundamental distinction between copyrightable expression on the one hand, and noncopyrightable methods, processes and ideas on the other. Id. at 37-46. Indeed, although his personal views are entitled to very little if any weight in the context of the court’s determination of the statutory mandates, Whelan, 797 F.2d at 1241, n. 37, it is interesting to note that Melville Nimmer, Vice-Chairperson of CONTU, testified about the Commission’s intent, in Evergreen Consulting v. NCR Comten, Inc., No. 82-5946-KN (C.D.Cal. filed 1982). According to Nimmer, CONTU understood that the proposed repeal of former section 117 would extend copyright protection to nonliteral elements of computer programs: CONTU had no views, and made no recommendations which would negate the availability of copyright protection for the detailed design, structure and flow of a [computer] program under the copyright principles that make copyright protection available, in appropriate circumstances, for the structure and flow of a novel, a play or a motion picture. Nimmer Deck in Evergreen Consulting, ¶ 28, reprinted in Note, Idea, Process, or Protected Expression?: Determining the Scope of Copyright Protection of the Structure of Computer Programs, 88 Mich.L.Rev. 866, 889 (1990). But cf. conflicting views of Commissioner Arthur Miller and Executive Director Arthur Levine, discussed in id. at 888-90. 3. Relevant Aspects of the Whole Law of Copyright a. “Nonliteral” Expression With respect to such things as musical, dramatic, and motion picture works, and works of “literature” (as contrasted with “literary” works in the broader statutory sense, see Samuelson, Reflections on the State of American Software Copyright Law and the Perils of Teaching It, 13 Colum.-VLA J.L. & Arts 61, 65 n. 15 (1988)), it is crystal clear that, to the extent original, the literal manifestations of such works are protected by copyright. Thus, during a period of copyright protection, one cannot copy an author’s book, score, or script without authorization in law or in fact. It is also well settled that a copyright in a musical, dramatic, or motion picture work, or a work of literature, may be infringed even if the infringer has not copied the literal aspects of the work. That is, even if an infringer does not copy the words or dialogue of a book or play, or the score of a musical work, infringement may be found if there is copying of the work’s expression of setting, characters, or plot with a resulting substantial similarity. Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930) (L. Hand, J.) (“the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations”), cert. denied, 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1931); Sheldon v. Metro-Goldwyn Pictures Corp., 81 ,F.2d 49, 55 (2d Cir.) (L. Hand, J.) (“a play may be pirated without using the dialogue”), cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936); Detective Comics, Inc., v. Bruns Publications, Inc., 111 F.2d 432, 433 (2d Cir.1940) (defendant’s comic book “Wonderman” adjudged to infringe plaintiff’s copyright in the comic book series “Superman” where both comic books’ central characters have miraculous strength and speed; conceal their strength, along with their skin-tight acrobatic costumes, beneath ordinary clothing; are termed champions of the oppressed; crush guns; stop bullets; and leap over or from buildings); Bradbury v. Columbia Broadcasting System, Inc., 287 F.2d 478, 482-84 (9th Cir.) (twenty-two nonliteral similarities between plaintiff’s Fahrenheit 451 and The Fireman and defendants’ television production), cert. dismissed, 368 U.S. 801, 82 S.Ct. 19, 7 L.Ed.2d 15 (1961); Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir.1970) (substantial similarity between nonliteral expressive elements embodied in defendant’s cards and plaintiff’s cards); Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir.1977) (defendant’s television commercial substantially similar in locale, characters, and plot to plaintiff’s children’s television series); Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327 (9th Cir.1983) (thirteen alleged similarities between plaintiff’s motion picture, Star Wars, and defendant’s motion picture and derivative television series, Battlestar: Gallactica — including totality of setting, characters and their relationships, and elements of plot — were sufficient to create genuine dispute of material fact to defeat defendant’s motion for summary judgment); Horgan v. Macmillan, Inc., 789 F.2d 157, 162 (2d Cir.1986) (copyright in choreography for The Nutcracker ballet may be infringed by a book of photographs of the ballet if the series of photographs is substantially similar to the ballet). See also Stewart v. Abend, — U.S. -, 110 S.Ct. 1750, 1759, 109 L.Ed.2d 184 (1990) (noting that a motion, picture may infringe a book by using “the story’s unique setting, characters, plot, and sequence of events”). This type of copying of nonliteral expression, if sufficiently extensive, has never been upheld as permissible copying; rather, it has always been viewed as copying of elements of an expression of creative originality. b. “Useful Articles” A “useful article” is defined by the Copyright Act as an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article.” 17 U.S.C. § 101 (1988). Such articles — or more- accurately, the utilitarian aspects of such articles — are not works of authorship in which copyright can subsist. House Report at 55, reprinted at 5668. However: [T]he design of a useful article ... shall be considered a pictorial, graphic, or sculptural work [which is copyrightable] ... if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable pf existing independently of, the utilitarian aspects of the article. 17 U.S.C. § 101 (1988) (defining “pictorial, graphic, and sculptural works”). Put more broadly, the point is that .those elements of a useful article that can exist independently of the utilitarian aspects of the article are potentially copyrightable because those elements are elements of expression that can be distinguished from the utilitarian functions of the article. See Whelan, 797 F.2d at 1236 (“the purpose or function of a utilitarian work [is] the work’s idea, and everything that is not necessary-to that purpose or function [is] part of the expression of the idea”); Williams Electronics, Inc. v. Bally Manufacturing Corp., 568 F.Supp. 1274, 1279-80 (N.D.Ill.1983) (Congress intended to exclude from copyright protection functional elements of work, leaving only those aspects of work separable from utilitarian aspects copyrightable). 4. The Objects and Policies of Copyright Law The court’s final task in divining the statutory mandates is to look to the “object and policy” of the copyright law. Kelly, 479 U.S. at 43, 107 S.Ct. at 358. This inquiry has received heightened attention in this case {see Part VII, infra) because defendants contend that extending copyright protection to nonliteral elements of computer programs is contrary to the objects and policies of copyright law as expressed in the copyright statute and in precedents. Although, of course, disputing defendants’ conclusion, plaintiff does not contest the premise of this contention— that in construing the manifested meaning of the Copyright Act, the court is directed to look to the “object and policy” of the copyright law. Copyright monopolies are not granted for the purpose of rewarding authors. Rather, Congress has granted copyright monopolies to serve the public welfare by encouraging authors (broadly defined) to generate new ideas and disclose them to the public, being free to do so in any uniquely expressed way they may choose. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546, 105 S.Ct. 2218, 2223, 85 L.Ed.2d 588 (1985). As the Supreme Court has concluded, “encouragement of individual effort by personal gain is the best way to advance public welfare through talents of authors and inventors in ‘Science and useful Arts.’ ” Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 reh’g denied, 347 U.S. 949, 74 S.Ct. 637, 98 L.Ed. 1096 (1954). See also Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 432, 104 S.Ct. 774, 783, 78 L.Ed.2d 574 (1984) (“ ‘The immediate effect of our .copyright law is to secure a fair return for an “author’s” creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.’ ”) (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2043, 45 L.Ed.2d 84 (1975)). In construing the relevant statutory mandates, the court must be faithful to the statutory language and mindful of both the ultimate goal of copyright law — the advancement of public welfare — and Congress’ chosen method of achieving this goal — private reward to the individual author. Courts should not draw the line between copyrightable and non-copyrightable elements of computer programs in such a way as to harm the public welfare, nor should courts ignore the accommodation struck by Congress in choosing to advance the public welfare by rewarding authors. These mandates leave courts with a delicate task: Drawing the line too liberally in favor of copyright protection would bestow strong monopolies over specific applications upon the first to write programs performing those applications and would thereby inhibit other creators from developing improved products. Drawing the line too conservatively would allow programmer’s efforts to be copied easily, thus discouraging the creation of all but modest incremental advances. Menell, Scope of Copyright Protection for Programs, 41 Stan.L.Rev. at 1047-48. See also Note, Scope of Copyright Protection of Computer Program Structure, 88 Mich. L.Rev. at 895; Note, Defining the Scope of Copyright Protection for Computer Software, 38 Stan.L.Rev. 497, 498 (1986). Rather than itself drawing the boundary line between copyrightable and non-copyrightable elements of computer programs, Congress has mandated that courts use an evaluative standard in determining this boundary line — that is, a standard that distinguishes idea from expression and requires that a court, in applying this distinction, be sensitive to the object and policy of copyright law as manifested by Congress. When statutes establish evaluative standards for deciding cases, courts — by necessity — must locate boundaries in unchartered terrain, using the markers that Congress has placed. At some places a boundary may run straight as a surveyor’s sight-line between markers; at others, it may meander like a stream, moving toward resolution of clashing objects and policies the markers identify. No marker Congress has placed may be disregarded or relocated by courts. Even in those instances where text and context make clear that literal description of a marker is contrary to manifested meaning (as where “not” must be inserted or deleted to make sense of the statutory language) what the court is doing is aptly described as “locating,” not “relocating,” the marker Congress mandated. The fewer the markers Congress has placed, the more critical it becomes that courts assure that no marker escapes notice. B. The Idea-Expression and Useful-Expressive Distinctions Although the statutory mandates are ambiguous in some critical respects, one point on which they are clear (one marker of the boundary line) is this: at least some, but clearly not all, aspects of computer programs, if original, are “works of authorship” in which copyright can subsist. 17 U.S.C. § 102(a)(1); House Report at 54, reprinted at 5667; CONTU, Final Report at 21. How can a court determine which aspects are copyrightable? The interplay between sections 102(a) and 102(b), illumined by the related legislative history, manifests that the statute extends copyright protection to expressive elements of computer programs, but not to the ideas, processes, and methods embodied in computer programs. House Report at 54, 57, reprinted at 5667, 5670. This dichotomy — which is often referred to as the “idea-expression distinction,” and which embraces also the process-expression, method-expression, and useful-expressive distinctions, see Note, Determining the Scope of Copyright Protection of Computer Program Structure, 88 Mich.L. Rev. at 866-67 — has long been a fundamental part of our copyright law. Baker v. Selden, 101 U.S. 99, 25 L.Ed. 841 (1879). In that seminal case, the Court held that the text of a book describing a special method of double-entry accounting on paper spreadsheets — the now almost universal T-accounts system — was copyrightable expression, but that the method itself, which embodied the idea of this particular kind of double-entry bookkeeping, was not. The Court thus concluded that Baker did not infringe Selden’s copyright when Baker wrote his own treatise, in his own words, describing the special double-entry method of bookkeeping. CONTU, too, concluded that the idea-expression distinction should be used to determine which aspects of computer programs are copyrightable. CONTU, Final Report at 37-46. The Commission recognized, though, that “[i]t is difficult, either as a matter of legal interpretation or technological determination, to draw the line between the copyrightable element of style and expression in a computer program and the process which underlies it.” Id. at 44. CONTU, of course, was not an official voice of Congress, and its views are not, without more, attributable to Congress. Thus, courts must not treat the CONTU report as legislative history, in the ordinary sense, much less as an authoritative statement about manifested legislative intent. Whelan, 797 F.2d at 1241-42. The privately held views of Vice-Chairperson Nimmer and Commissioner Miller, and especially the privately held views of Executive Director Levine, see declarations in Evergreen Consulting, without some manifestation of congressional endorsement, are even less relevant to the determination of manifested congressional intent. Id. at 1241 n. 37. Congress, however, did not ignore CON-TU. Indeed, as already noted, Congress adopted practically verbatim the Commission’s proposed statutory changes with respect to computer programs. Thus, the expressed views of the Commission, to the extent not repudiated by Congress, may help to explain the context in which Congress acted, which in turn may support inferences about the meaning of any otherwise ambiguous passages in what Congress declared. I conclude that, with the Copyright Act of 1976 and the 1980 amendments to that Act, Congress manifested an intention to use the idea-expression distinction as part of the test of copyrightability for computer programs. That is, rather than adopting some other test of copyrightability that made the idea-expression dichotomy irrelevant (such as defendants’ proposed literalnonliteral distinction), Congress chose to extend copyright protection to original expression embodied in computer programs, but not to any idea, method, or process described by that expression. 17 U.S.C. §§ 102(a), 102(b); House Report at 54, 57, reprinted at 5667, 5670. That conclusion is consistent with the treatment of other kinds of intellectual works — specifically, with the treatment of nonliteral elements of expression in musical, dramatic, and motion picture works, and works of literature. It is also consistent with the treatment of useful articles. That is, as explained more fully in Part IV(A), infra, I conclude that the user interface and some other nonliteral aspects of computer programs are not merely articles “having an intrinsic utilitarian function.” 17 U.S.C. § 101 (defining “useful article”). When computer programs include elements — both literal and nonliteral — “that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article,” id. (defining “pictorial, graphic, and sculptural works”), they are potentially copyrightable. Finally, this conclusion is also consistent with the objects and policies of copyright— to encourage the creation and dissemination of new ideas by protecting, for limited times, the specific way that an author has expressed those ideas. IV. THE LEGAL TEST FOR COPYRIGHTABILITY APPLICABLE TO THIS CASE A. Functionality, Useful Articles, and ■ the Useful-Expressive Distinction Defendants suggest that the user interface of Lotus 1-2-3 is a useful, “function[al]” object like the functional layout of gears in an “H” pattern on a standard transmission, the functional assignment of letters to keys on a standard QWERTY keyboard, and the functional configuration of controls on a musical instrument {e.g., keys of a piano). Lewis Affdvt. 1111 52-54. These “functional” “useful articles,” defendants contend, are not entitled to copyright protection. A similar analogy was made in Synercom where the court concluded that a sequence of data inputs for a statistical analysis program was like the “figure-H” pattern of a standard transmission. 462 F.Supp. at 1013. Synercom, though, was published less than a month after the publication of the CONTU report (which it never cites) and well before the 1980 amendments. Since then, congressional and judicial development of the law of copyright-ability of computer programs has advanced considerably, and Synercom’s central proposition — that the expression of nonliteral sequence and order is inseparable from the idea and accordingly is not copyrightable— has been explicitly rejected by several courts. E.g., Whelan, 797 F.2d at 1240, 1248 (“copyright protection of computer programs may extend beyond the programs’ literal code to their structure, sequence, and organization”); Broderbund Software, Inc. v. Unison World, Inc., 648 F.Supp. 1127, 1133 (N.D.Cal.1986) (“copyright protection is not limited to the literal aspects of a computer program, but rather ... it extends to the overall structure of a program, including its audiovisual displays”). Moreover, even those courts that have not gone as far as Whelan and Broderbund have still gone much farther in protecting computer programs than Synercom. E.g., SAS Institute, Inc. v. S & H Computer Systems, Inc., 605 F.Supp. 816, 830 (M.D.Tenn.1985) (“copying of the organization and structural details” can form basis for infringement); Manufacturers Technologies, Inc. v. CAMS, Inc., 706 F.Supp. 984, 993 (D.Conn.1989) (“screen displays or user interface” copyrightable); Johnson Controls, Inc. v. Phoenix Control Systems, Inc., 886 F.2d 1173, 1175 (9th Cir.1989) (nonliteral aspects such as “strueture, sequence and/or organization of the program, the user interface, and the function, or purpose, of the program,” are copyrightable to the extent that they embody expression rather than idea); Telemarketing Resources v. Symantec Corp., 12 U.S.P.Q.2d 1991, 1993, 1989 WL 200350 (N.D.Cal.1989) (holding that “[cjopyright protection applies to the user interface, or overall structure and organization of a computer program, including its audiovisual displays, or screen ‘look and feel,’ ” but finding no infringement in this case); Q-Co. Industries v. Hoffman, 625 F.Supp. 608, 615-16 (S.D.N.Y.1985) (similarity of “structure and arrangement” can form basis of infringement suit, but here, structural similarities were dictated by functional considerations and hence were non-copyrightable ideas rather than copyrightable expression); Pearl Systems, Inc. v. Competition Electronics, Inc., 8 U.S.P.Q.2d 1520, 1524, 1988 WL 146047 (S.D.Fla.1988) (“Copyright protection of computer software is not limited to the text of the source or object code”). But see Softklone, 659 F.Supp. at 455, 465 (rejecting Broderbund’s conclusion that audiovisual screen displays are copyrightable, although holding that separate copyright on status screen display was infringed where “total concept and feel” was copied); Plains Cotton Cooperative Association v. Goodpasture Computer Service, Inc., 807 F.2d 1256, 1262 (rejecting Whelan’s protection for structure, sequence, and organization, court instead held that sequence and organization, where dictated by market forces, is non-copyrightable idea rather than copyrightable expression), reh’g denied, 813 F.2d 407 (5th Cir.), cert. denied, 484 U.S. 821, 108 S.Ct. 80, 98 L.Ed.2d 42 (1987). In any event, Synercom’s input formats are quite different from, and distinguishable from, the nonliteral aspects of 1-2-3 at issue in this case. Defendant’s proposed analogy is also similar to the analogy drawn by Commissioner Hersey between a computer program and an object that is designated to do work — for example, the cam of a drill. CONTU, Final Report at 58-60 (Hersey, C., dissenting). His view, however, was in dissent, and not a view advanced by CON-TU. Because Congress adopted CONTU’s recommendations practically verbatim, it is reasonable to infer that Congress did not adopt Commissioner Hersey’s view. Moreover, I conclude that defendants’ contentions, to the extent they are similar to Synercom’s central proposition and to Commissioner Hersey’s views in dissent, are inconsistent with the legislative history and statutory mandates explained above. If, in a context such as that of Synercom or of this case, an idea and its expression were taken to be inseparable and the expression therefore not copyrightable, copyright law never would, as a practical matter, provide computer programs with protection as substantial as Congress has mandated — protection designed to extend to original elements' of expression however embodied. I credit the testimony of expert witnesses that the bulk of the creative work is in the conceptualization of a computer program and its user interface, rather than in its encoding, and that creating a suitable user interface is a more difficult intellectual task, requiring greater creativity, originality, and insight, than converting the user interface design into instructions to the machine. See Galler Decl. Ml 37, 39; Emery Decl. Ml 22, 25-28 (Docket No. 265); Reed Decl. MI 26-27 (Docket No. 290). Defendants’ contentions would attribute to the statute a purpose to protect only a narrowly defined segment of the creative development of computer programs, and to preclude from protection even more significant creative elements of the process. Such a result is fundamentally inconsistent with the statutory mandates. Also, defendants’ contention would have the additional consequence that computer programmers would have little, if any, more protection for nonliteral elements of expression embodied in their original works of authorship than is already provided by trade secret law. If the intellectual effort and creativity embodied in a user interface were protectable only by trade secret law, the length of protection for computer programs would be very short — merely the time it takes to examine a program and then duplicate the nonliteral elements in a newly written computer program. This short period of protection is fundamentally inconsistent with the mandates of the copyright law. Defendants have advanced their “useful article” (or “functionality”) argument in many forms. Never, however, have they stated every premise that is a step of the reasoning implicit in the argument. One set of unstated premises is the assumed meanings of “useful,” “article,” and “useful article.” Indeed, different forms of their argument have depended on different assumed meanings for one or more of these three terms. Some illustrations will clarify this point. Suppose, first, the form of the argument is this: A “useful article” is not copyrightable; a “computer program” is an “article,” and a good “computer program” is “useful”; therefore, a good “computer program” is not copyrightable. In this illustration, “useful,” “article,” and “useful article” are assumed to have meanings consistent with ordinary usage (with an exception to be noted below). The proposition that emerges when the words are interpreted in this way is, of course, plainly contrary to congressional mandates. Congress must have had some purpose in defining “computer program” and declaring that an “owner of a copy of a computer program” may make additional copies, in specified circumstances, without violating copyright laws. 17 U.S.C. §§ 101, 117. The clear implication of the 1980 amendments is that in some circumstances, at least, a good computer program is copyrightable. Otherwise, there would have been no need for Congress to enact these two provisions about a “computer program” and additional “copies.” It follows that, for this defense argument to make a