You could always do that with copyright programs. The only thing that changed was the cost. The only example of somebody doing this was with the BIOS of the original IBM PC, but it was always possible and since nothing was copied it is legal. Somebody else did all the hard work.

Patents are the only protection that should exist for this type of thing. (though finding an algorithm worth patenting is hard - most are either a small variation easy to work around, or so old that prior art exists from 50 years ago).

Yep. I've seen it happen and there's basically no recourse against it currently. And EFF is saying that it's fine… honestly not what I was expecting to read.