I wasn't practicing law back then, but my secondhand understanding is that while it wasn't clear that copyright would apply to software, or how, savvy players largely expected some kind of protection for written software beyond trade secrecy.
There were all kinds of questions, theories, and proposals about whether that would happen under copyright law or perhaps through some software-specific regime. The US answer was clear when "computer program" was written into the scoping definitions of the Copyright Act. We still cite back to the commission that pushed that recommendation, CONTU, when debating loose ends.
CONTU wasn't established until 1974, and the US Copyright Act wasn't amended to explicitly affirm the copyrightability of computer programs until 1980 – but the US Copyright Office was already accepting copyright registrations of computer programs by 1972 [0]. While the Copyright Office's interpretation of copyright law is not always affirmed by the Courts or Congress, more often than not it is – so, it would not have been an unreasonable assumption in 1972 that the answer to "Are computer programs copyrightable under US law?" was likely "Yes". I don't know whether the same answer would have been true 3 years earlier or not, but quite possibly it would have been – it is an interesting historical question, when was the first copyright registration for a computer program which they accepted?
I also found a journal article [1] which says (p. 1748, my emphasis):
> There was considerable debate in the 1960s, during the gestation of the legislation that became the Copyright Act of 1976, about whether computer programs could, or should, be protected by copyright law. Although no one seriously questioned that source code forms of programs could be copyrighted as written texts, there were two principal concerns about applying copyright to machine-executable forms of programs...
So, according to that, the debate was primarily about whether object code was copyrightable, as opposed to source code. At the time, distributing software as source code was extremely common – indeed, configuration files were rare, configuration was commonly hardcoded in the source code, making compilation a necessary part of the installation process – which meant that source code being much more clearly copyrightable than object code would have been less of an obstacle to commercial software distribution than it would have been in later decades, when object code only distribution became much more common.
[0] Catalog of Copyright Entries. Third Series: 1972: Title Index. Books: July-Dec. page 3926 which lists "CILA Mark-1 system (casualty insurance logistics automated) source program listing. NETWORK DATA PROCESSING CORP" – https://books.google.com/books?id=4kAhAQAAIAAJ&pg=RA1-PA6 – note there are many other references to "computer programs" in that index, but it is sometimes unclear whether they are manuals or source code; this particular entry is rather clearly source code.
> While the Copyright Office's interpretation of copyright law is not always affirmed by the Courts or Congress, more often than not it is
I don't think I've seen that asserted before. I certainly wouldn't bank on it these days.
As for timing, there were companies speculating well before '72 that copyright would be the game. Archival work found a copyright-based license agreement from IBM from as early as 1969. See https://www.create.ac.uk/blog/2018/11/14/the-first-software-....
That's not the same as saying the question was settled. After the Copyright Act amendment, it sure was.
> I don't think I've seen that asserted before. I certainly wouldn't bank on it these days.
Let me ask the question historically: in previous decades, how often have the legal interpretations of the Copyright Office ended up being affirmed by the Courts and/or Congress, versus how often have they been overturned by them?
Also, the Courts owe a certain degree of deference to regulatory agency statutory interpretations, as established by the Supreme Court cases Skidmore v. Swift & Co. (1943) and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)–the second of which came after the time period we are discussing, but the first came before it. There is no obvious reason why that deference would not also apply to the US Copyright Office's interpretations of copyright law, and indeed there is case law applying those decisions to it.
> That's not the same as saying the question was settled.
The journal article I cited says that the question was settled all along for source code, and the legal doubts were only about object code.
The assertion about the Copyright Office's batting average was yours. If you want to make the assertion, the research question's also yours!
As I recall, Skidmore held that what agencies say laws mean gets only the deference it deserves. In other words, the courts will reconsider for themselves how persuasive their arguments are.
Chevron starts with the question of whether the administrative agency's decision was made in a way that a statute gives the force of law. The Copyright Act gives the Copyright Office that power in administering some processes, like copyright registration. But last I checked, which was well after Chevron, questions about whether an application followed the registration process got deference, but the more basic question of whether something's copyrightable in the first place remained with the courts. Just because it's called the "Copyright Office" doesn't mean the courts will defer to it about the whole Copyright Act.
This difference could very well matter for some going issues, like the Copyright Office's recent rejection of some artwork created with the help of generative AI. I would be very, very surprised to see appeals courts handing that legal question over the Copyright Office.
> The assertion about the Copyright Office's batting average was yours. If you want to make the assertion, the research question's also yours!
I can't claim to have researched it formally, but my impression from reading a number of cases on the topic is that most of the time, the Courts end up agreeing with the Copyright Office. And more often than not, when they disagree with it, the disagreement gets reversed. For example, in National Broadcasting Co. v. Satellite Broadcast Networks, Inc (940 F.2d 1467 (11th Cir. 1991)), the 11th Circuit concluded that satellite broadcasters were cable systems. After oral argument, but before the decision was handed down, the Copyright Office issued a rule that they were not. The Court decided that the Office's rule was not retroactive, and hence did not apply to the case; they expressed doubts about whether they owed it deference, but avoided deciding that. Subsequently, in Satellite Broadcasting & Communications Ass'n of America v. Oman (17 F.3d 344 (11th Cir. 1994)), a different panel decided the Copyright Office rule was owed Chevron deference, and reversed a District Court decision applying that 1991 decision.
> As I recall, Skidmore held that what agencies say laws mean gets only the deference it deserves. In other words, the courts will reconsider for themselves how persuasive their arguments are.
You make Skidmore sound weaker than it actually is – in Skidmore, SCOTUS reversed the District Court and the 5th Circuit for failing to give sufficient deference to the statutory interpretations issued by the Department of Labor. Skidmore instructs Courts to evaluate an agency's "rulings, interpretations, and opinions", in light of "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade". In other words, if a Court wants to reject an agency's interpretation, it has to present a persuasive argument that it is flawed on one of those grounds, or else the rejection has significant odds of being overturned on appeal.
> But last I checked, which was well after Chevron, questions about whether an application followed the registration process got deference, but the more basic question of whether something's copyrightable in the first place remained with the courts
In Varsity Brands, Inc. v. Star Athletica, LLC (799 F.3d 468 (6th Cir. 2015)), the Court of Appeals ruled that copyright registration decisions were owed Skidmore deference, and overturned the District Court for failing to extend that deference – in a dispute about copyrightability. It said that (in the 6th Circuit at least) when the Copyright Office judges a work to be copyrightable, as expressed through its decision to register the work, there is a rebuttable presumption that the Copyright Office's judgement is correct. That decision was upheld by the Supreme Court on appeal, but all three of majority, concurrence and dissent dodged the issue of deference entirely.
Star Athletica's holding turned on just the kind of "force of law" question I mentioned. The answer there was "no", so the relevant rule was Skidmore, not Chevron. Of course Skimore's still law. But what does it say?
Looking back at the Athletica opinion, the 6th followed the Supreme Court in referring to Skidmore as "the power to persuade", as distinct from "the power to control". There's an abstract rubric for courts to use in assessing agency interpretations that don't have the force of law. But the door is very much left open for courts to adopt interpretations they find more thorough, better reasoned, more consistent, &c. You could squint and see an outline of how appeals courts review all decisions there.
With "presumption", I think you may be confusing terms. There's a statutory presumption you get in your favor once you successfully register copyright with the Copyright Office. That's a presumption for a party challenging the validity of a copyright to overcome---say, a defendant in a copyright infringement suit. Judges and courts don't bear "burdens" under "presumptions". They follow the rules that put them on litigants, or review the decisions of lower courts that should have.
Consider the opposite case where the Copyright Office refuses registration because it says the subject matter's not copyrightable. Perhaps because the artist created the artwork by prompting Midjourney. There's an appeal process for refusal to register within the Copyright Office, under its regulations. If you appeal twice and lose twice there, that's "final agency action" courts can look at.
If the issue ends up in court, the statutory presumption of 410(c), by its terms, doesn't apply. No issued registration, no presumption of validity. But there is still Skidmore. In the Sixth Circuit that's clear now. The court couldn't ignore the Copyright Office's reasons. But if it weren't persuaded, it could rule otherwise. It would have to read the Copyright Office and grapple with it, but not agree with it. Especially if it heard a better argument in briefing.
> With "presumption", I think you may be confusing terms. There's a statutory presumption you get in your favor once you successfully register copyright with the Copyright Office. That's a presumption for a party challenging the validity of a copyright to overcome---say, a defendant in a copyright infringement suit.
There are two different rebuttable presumptions here – one is the statutory rebuttable presumption under the Copyright Act; the other is that Skidmore deference is itself a rebuttable presumption. They are distinct, but in copyright cases, is there a clearcut boundary between them? If you read the 6th Circuit's decision, you will find that they deal with both the statutory presumption issue and the Skidmore/Chevron deference issue in the same section, and treat them as closely related as opposed to clearly separable. Maybe, if you think I'm confusing the two, you might think the Sixth Circuit panel was too?
> Judges and courts don't bear "burdens" under "presumptions".
I think we are using "burden" here in different senses. You are using it in a narrow, technical legal sense, and I agree with you that in that sense, the parties bear "burdens", not the Court.
However, in a broader sense of the term "burden" – in the sense of (informal) logic, philosophy, discourse analysis, etc – lower courts do bear a persuasive burden, of convincing the appellate courts to uphold rather than overturn their decisions, and rebuttable presumptions can work to shape, even increase, that burden.
> The court couldn't ignore the Copyright Office's reasons. But if it weren't persuaded, it could rule otherwise. It would have to read the Copyright Office and grapple with it, but not agree with it. Especially if it heard a better argument in briefing.
The District Court erred by simply engaging in a cursory dismissal of the Copyright Office's interpretive position, as opposed to engaging in a detailed analysis of that position against the Skidmore factors. If it had done that, the 6th Circuit would have found it harder to reverse the District Court's decision, even if it had ultimately arrived at the same result. Of course, if the 6th Circuit really wanted to overturn the decision, it could have (especially given de novo review)–but the District Court could have made the 6th Circuit's work cut out for it, as opposed to giving it easy grounds for a reversal.
You could say the lower court both failed to meet its persuasive burden with respect to the appellate court, and simultaneously failed to impose a greater persuasive burden on the appellate court (in reversing) than it could have. But for both, these are added persuasive burdens which only exist because the rebuttable presumption of Skidmore created them.
I wasn't practicing law back then, but my secondhand understanding is that while it wasn't clear that copyright would apply to software, or how, savvy players largely expected some kind of protection for written software beyond trade secrecy.
There were all kinds of questions, theories, and proposals about whether that would happen under copyright law or perhaps through some software-specific regime. The US answer was clear when "computer program" was written into the scoping definitions of the Copyright Act. We still cite back to the commission that pushed that recommendation, CONTU, when debating loose ends.