I’m not sure that they have the right of it (a sewing pattern is, in many ways, a program, especially as it is expressed as instructions for an electronic sewing machine), but it’s good news for makers anyway that a court has found the opposite, that a pattern is data, not programming. According to 27B Stroke 6,
Under copyright’s first sale doctrine nobody can stop you from reselling or renting out copyrighted material, like books and movies, that you’ve legally acquired. But with the 1990 Computer Software Rental Amendments Act, Congress carved out an exception for computer programs, prohibiting anyone from renting, leasing or lending them without permission of the copyright holder.
So the case turned on whether Action Tapes’ electronically-stored embroidery designs are computer programs or not. It’s an interesting question. The statute defines a program as “a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result.”
The Action Tapes cartridges contain code that tells computerized sewing machines how to stitch the embroidery pattern. “In essence,” the plaintiff wrote in an appellate brief, “the memory card ‘tells the machine what to do.'”
Of course, the disks I rent from the video store tell my DVD player (certainly as much a computer as a sewing machine) what to do — at the very least, what to display on my TV. Data doesn’t become a program just because a computer interprets it and takes action based on what it reads. I say if it’s not written in a language that’s Turing-complete, it’s not a program.
The judge who heard the Action Tapes case applied her own analysis and concluded that real computer programs are interactive. She dismissed Action Tapes’ complaint. Today the U.S. 8th Circuit Court of Appeals upheld the decision (.pdf), though on different grounds: it seems Action Tapes couldn’t prove it properly registered the embroidery code as software with the U.S. Copyright Office.
It’s an interesting debate — whether a pattern for making a thing is a program — but perhaps more interesting in the short term is what this brouhaha tells us about the way that real and virtual are increasingly on a collision course. Up until now, most “intellectual property” issues have been about stuff that politely stays intangible. But as we get into building more and more programs that make stuff, intellectual property discussions are going to enter more and more aspects of our lives. Let’s hope that the eager lawyers and judges follow the Lessig doctrine, and show restraint in creating new laws until technology and society have time to adjust.