I think you have missunderstood what the judges meant.
The fact the computer programs are functional doesn't take away their copyrightabillity. But copyright only protects the creative expression and then the form of these expressisions are dictated by external factors such as in the courts words "compatibility requirements and industry demands" they are not creative expression and thus not copyrightable.
It almost sounded to me as if they were saying that it was purely functional. But then again I didn't read it really carefully. The correct representation is that they are creative but then yield a function. The creative part (the source code) should be copyrightable, but the actual functionality should not be, and it should be perfectly legal to duplicate the functionality of a piece of code so long as you do not actually verbatim copy the copyrighted source code.
Exactly.
Protecting the functionality would be an issue for patents and not copyrights. And with the exception of things like the RSA patent, software patents for the most part have not been working. Of course, IIRC the RSA patent is not actually a software patent but a patent on a hardware implementation of the algorithm.
Note quite, patents do not protect functiality, they protect a specific way to achieve a certain functionality. For example, you could, providing software patents are valid, patent a specific algoritm that sorts list, but you can't patent all algoritms that have the same functionallity, is this cases that sorts list.
Patents are for promoting progress by finding new and better way of achieving some specific functionality.
The functionallity (end result) is itself it an idea and not protectable.
Not that fact that the court said "functional" and not "is not a creative expression" is AFAICS largely irrelevant.
But I think I can see what you are after, I you have an "optimal" compiler every computer program that are functionally equivivalent will be reduced to the same binary form. However that doesn't rob the source code from copyright, just the binary form.
Binaries should only be copyrightable in the sense that doing a verbatim copy (e.g. copy file.exe newfile.exe) should be protected,
Careful, we definitely don't want copyright law to mean that. There have been some strange cases involving whether the representation of the program in memory is a copy. While running an application obviously falls under fair use, such a view might be unfortunate since it like the DMCA will lead to logical contradictions which will enable scrupelus persons to use the confusion in legal arguments.
IMHO the only sane definition of copy in the meaning of copyright is something is a copy (or a potential copy) if it is made with the intent to distribute. With potential copy I mean for example offering a protected work for download on a website or on Napster or where ever. All other defintion will lead to logical contradictions AFAICS.
For example, if I look at protected work, have a copy been made in my eyes? If I have a camera attached to say my glasses that broadcast everything I see on a website will I be a copyright infringer if I look at a protected work. Without having intent as condition you can nail anybody for copyright infringement.
but if the compiler happens to generate an exact copy, then so be it.
Yes, but two works that are the same or similar by coincidence have never been considered copyright infringment.
What I meant is that if the representation is optimal it will be purely functional and thus not protectable at all since copyright doesn't protected that.
However since optimal compilers doesn't exist, this distinction is rather meaningless, the binary will always retain some of protected creative expression and thus be protectable as a whole.