It stretches the imagination to consider coded computer instructions to computers--software--as the sort of "means of expression" that the Founding Fathers intended to protect by copyrights. But while computer programs are rarely unique enough to qualify for a patent, and typically change too fast to make it worth the time and effort to obtain one, the courts and Congress have gradually extended copyright coverage to specialized programs stored on external devices such as disc packs.

Now a federal appeals court has addressed the question of whether such protection can also be granted to instruction sets that are built right into the computer's circuits--a process that has become increasingly feasible as the price of memory chips has fallen and their computational capacity has increased. Apple Computer Inc. had sued Franklin Computer Corp., a small company that had virtually duplicated one of Apple's most popular models. Franklin argued that Apple's sophisticated operating system wasn't protected because, unlike most operating systems, it was built right into the computer's hardware.

The Philadelphia appeals court, finding this a distinction without much practical difference, ruled for Apple. It is not hard to agree with its decision. If it is important to provide an economic incentive for innovators to produce ever more capable software-- and it is--there is no good reason to discriminate against types of software on the basis of where they make their permanent homes. Good software systems are expensive to produce. Some companies, notably IBM, have encouraged competitors to write software for IBM's machines. But other companies, which see more advantage in building specialized functions into their machines, will be discouraged from making the needed investment if they know that a competitor can knock off a cheap copy.

It is easy, however, to overstate the importance of the court's decision. You can't copyright an idea. Deciding whether a particular computer program is an out-and-out copy of an original form of expression or a legitimate variation or enhancement will, no doubt, keep lawyers and judges busy for years. But does it make sense to continue bending the traditional patents, copyrights and trade secrecy laws to cover the rapidly changing field of high technology? Would not new, more flexible forms of protection be better?