This paper argues that the current law regarding legal protection of microprograms, whether by ordinary copyrights or through the Semiconductor Chip Protection Act, is uncertain. He concludes that Congress should at least declare that microprograms, no matter how created, are protectable, just as they recently did with “mask works.”

Because of the close tie between a microprocessor’s instruction set and the microprogram which implements it, granting protection to the microprogram may mean de facto protection to the instruction set. Likewise, a microprogam seems to be a program according to the definition found in the Copyright Law; however, it may be sufficiently functional and closely tied to the circuitry, and thus be too functional to qualify for copyright protection.

Much of the paper is devoted to explaining microprogramming and its relation to chip design and instruction sets. The paper is motivated, in large part, by the current dispute between Intel and NEC concerning NEC’s V20 series processors whose instruction set contains the instruction set for Intel’s 8086/8088 processors.