UC Berkeley

Contrary to common perceptions, Baker v. Selden is neither the origin of the idea/expression distinction of U.S. copyright law, nor of the merger doctrine (which holds that if an idea is capable of expression in only one or a small number of ways, the work’s idea and expression will be considered to be “merged,” and copyright protection will be unavailable to merged elements). The idea/expression distinction predated Baker, and a close analysis of the Baker decision and of its progeny reveals that the principal contribution of Baker made to U.S. copyright law has been its exclusion of systems, processes, and other useful arts from the scope of copyright protection.

The article demonstrates that Congress intended for section 102(b) of the Copyright Act of 1976 to codify the Baker exclusion of procedures, processes, systems, and methods of operation as well as the pre-Baker exclusion of high level abstractions such as ideas, concepts, and principles. The article contests the interpretation given to Baker by Professor Melville B. Nimmer in his famous treatise, and shows that the Supreme Court’s decision in Mazer v. Stein is more consistent with the traditional understanding of Baker than with the Nimmer interpretation. Although the initial impetus to codify the Baker exclusion of systems and processes arose from a concern about the possible overprotection of computer programs by copyright, early software copyright caselaw mistakenly followed the Nimmer treatise’s interpretation of section 102(b) as though it codified only the distinction between abstract ideas and expressions. Over time, courts came to perceive that Baker and section 102(b) had broader implications, requiring that functional elements of programs, such as processes or systems embodied in them, should be outside of copyright’s scope.

The final section of the article shows that although courts in some cases, such as those involving parts numbering systems, have managed to reach sound results by invoking other copyright doctrines (such as lack of originality), courts should have engaged in straightforward applications of section 102(b)’s exclusion of systems, as some more recent cases have done. The mistakenly narrow interpretation given to Baker by the Nimmer treatise has also led some courts to misconstrue section 102(b) by protecting coding systems and yoga sequences when these elements should be beyond the scope of copyright protection. The article calls for renewed attention to the eight words of exclusion in section 102(b) and to the policies that underlie those exclusions.