- 35 -
construed broadly. Their conclusion may also be based (it is not
clear) on the fact that Norwest did not possess the right to
distribute, sell, lease, or license the software it purchased
(the "copyright rights").
A. Attack on the Intrinsic Value Test
The Norwest majority attacks this Court's implicit
conclusion in Ronnen that computer programs were different from
the seismic data at issue in Texas Instruments, Inc. v. United
States, 551 F.2d 599 (5th Cir. 1977), and that the inextricable
connection which existed between the seismic data and tapes in
Texas Instruments was not present between the software and disks
in Ronnen. Norwest Corp. v. Commissioner, supra at __ (slip op.
at 20). I disagree with the Court's conclusion that there is no
fundamental difference between seismic data and a computer
program.
The distinction made in Ronnen v. Commissioner, supra, was
appropriate and warranted by the facts. The seismic data
consisted of the recording of a natural phenomenon. Although a
recording of a natural phenomenon is the result of human
exertion, it is neither the expression of an idea nor an un-
obvious improvement of prior technology or art. Accordingly,
copyright or patent protection is not available for it.1
Software, which is the result of human creativity (not mere
1 Although a recording of music is a recording of a natural
phenomenon which can be copyrighted, it is the creative element
that is copyrightable. See infra.
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