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The idea-expression distinction provides the crucial demarcation between the subject of patent law and that of copyright: “In no case does copyright protection […] extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” In the US, that distinction is deemed settled in Baker v. Selden (1879), but has been subsequently challenged by technological developments, like software, involving inventions that look like texts or others, like computer interfaces, that seem to merge software and hardware. As Samuelson and her colleagues put it in 1994, software is “a machine whose medium of construction happens to be text.” I argue that these new technologies do not induce local destabilizations of the idea-expression divide, but rather activate tensions that have been there all along – tensions that are both problematic and unavoidable. Early modern patents and printing privileges involving paper instruments show that the separation between texts and invention was far from stable in the 16th and 17th century. That distinction was eventually theorized only during the 18th century English debates over the nature and justification of copyright, but only through divergent, even contradictory, arguments. A close analysis of those debates shows not only how difficult it was to construct a distinction between the innovations of inventors and that of literary authors but also the conceptual fault lines underneath those differentiations – lines that continue to be reactivated by the products of recent increasingly immaterial and textual technologies like software and diagnostic methods.


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