What makes software copyrightable anyway?
I have not yet found the time to make this shorter ...
On 5/10/05, Raul Miller <email@example.com> wrote:
> The only reason copyright applies to computer programs in a
> legally significant fashion is through the concept of derivative works.
> Computers operate by transforming the representation of a program
> from one state to another. If you claim that these translations are not
> derivatives of the original,and that no creative work went into the
> translation, then you're claiming that they're not copyrighted works,
> and thus not subject to copyright protections.
It's simpler than that, and a whole lot more complex at the same time.
Copyright does apply to computer programs (even when compiled down
into blobs not intended to be read by humans) in a legally significant
fashion, for a simple human reason. Judges caught in the middle of
shotgun cross-complaints resulting from failed business relationships
couldn't figure out how the heck else a computer program was supposed
to be tradable property under existing statutes. (For once, I'm not
going to cram in links to enough case law to supply the hypothetical
d-l reader who cares with a month's bedtime reading; I'm winging it
When I try to reconcile early case law -- just from the US circuit
courts -- on the copies, derivative works, collections, and dungheaps
made during run-time, and which routine uses are infringing and which
aren't, the little engine in my non-lawyer head threatens to throw a
rod. And that's still how it is thirty years later, because the
people whose job it is to do something about it have run aground.
Instead of a workable Federal statute, parallel to copyright, patent,
and (Federal) trademark -- something that balances public and special
interests to set ground rules for fair trade in this new class of
intangible goods -- we in the US get abortions such as patents on
mathematical laws and business models on one hand and UCITA (a dead
letter outside the DC catchbasin) on the other. And can you really
say that Europe or Latin America or Australasiafrica is doing any
What do we have in place of law? Fun-house-mirror parodies of
contracts called EULAs. The other day, I bought a "digital pen" and a
notepad with a funny dot pattern that it needs to work its magic. Of
course the pen comes with its own EULA, as does each layer of the
associated software stack. I looked through it a second time to see
if there was a EULA for the obscenely marked up paper in there too,
got a headache from the fine print and the mush-mouthed gobbledygook,
and I'm still not quite sure. EULAs aren't a tradable property right,
they're concentrated essence of FUD. Whatever happened to "possession
is nine tenths of the law"?
Copyright alone is not the right answer, even for source code.
Annotated source code, in a condition that humans can access the ideas
and expression it contains, is near the goal-oriented end of the
spectrum of "literary or artistic works". It's sort of like a dress
pattern or an electronics project book -- or indeed an "arrangement of
music". You read it for enlightenment and entertainment, and then you
start monkeying around with it. And when you interpret it to create
your Very Own Project, you can make it look Just Like The Cover
Model's, you can ad lib it and wind up with a Halloween costume, or if
you're the Flying Karamazov Brothers you can knit the electronics
project into the dress and make it play the arranged music when you
juggle. That's some derivative work!
Now, the _perfect_ Little Black Dress isn't made by picking the Right
Pattern; you gotta pick the Right Pattern for You. That's why certain
genius designers, and a lot of mere programmers, like the GPL.
Construed under a legal theory that isn't total crack-smoking lunacy,
it's a superb way to deal with the large and growing corpus of source
code that consists of a few familiar ideas -- hopefully expressed by
now with vigor, style, and a mature perspective on what works and what
doesn't -- floating in the soup of mundane arcana needed to make it
work (even turn heads) on the hardware you happen to have. You're
going to need that collective wisdom, a modicum of technical
expertise, and all your sense of style, and then you start hacking
things away right and left because you're making an LBD, not a gunny
sack to keep the rain off.
But almost no one buys a dress pattern just for the entertainment
value, or to keep their brain's /dev/random stocked with entropy; they
buy it so they can make That Dress. Sure, in some sense That Dress is
a derivative work of the pattern, but who really cares? It's not like
somebody's going to set up a women's (men's too, where I live)
clothiers by ripping off that one pattern. A dressmaking business is
hard work, takes materials and labor and eagle-eyed inventory
management, and reaps economies of scale in design and distribution.
What capital you do invest is needed to buy a few machines, finance a
lot of receivables, and survive the day you run a batch of a thousand
XXXL instead of P and the summer that sundresses just won't sell.
Generally the amateurs worship the pros at a distance and maybe golf
with them if they get lucky.
Publishing dress patterns on tissue paper isn't a whole lot different
from making and selling dresses. Sure, you've got authors to deal
with, but you hire manuscript readers and copy editors and
hand-holders and there's a process to follow from one year to the
next, and you've still got a few machines and a lot of receivables and
that last print run of XXXL For Dummies (TM Wiley Publishing Inc.) to
remainder or shred. And golf. That's the world that copyright is
tailor-made for, with all its translations and adaptations and
anthologies and agencies so you don't have to deal with Hunter S.
Thompson in person (God rest his soul).
A publisher does need a little help from the law, over and above some
binding statutory codification of the practice in his industry; but
not too much. The "customer" who rips off a hundred dress patterns
seriatim, or runs a few through today's fine home copier technology
and sells the copies through eBay, needs to be given something to
fear. A preliminary injunction is a clumsy club to wield against the
small-time chiseler, but using a tissue-paper-printer-locked-e-book
rapier blindfolded is apt to skewer a more or less innocent bystander.
And it engenders more puzzlement than fear for the law in the kid who
fails to feel lightning strike when his school librarian lectures him
for doing a little desktop republishing of the textbook page he
spilled cherry pop on.
That kid is now your customer, your employee, you. That's part of why
Software is Different. The rest you've heard. Wacked economics.
Wacked personalities. This guy in the basement who wore a dress the
one time you met him gets startup fever and leaves, and all of a
sudden you can't make release builds of your bloody product anymore.
You never know where you stand on license residuals, what kind of
skills to hire this year, or how to identify that one indispensable
guy (hint: he probably looks like RMS and codes like Linus Torvalds)
so that you can fire him before everyone around him becomes incapable
of functioning without him. Your sales are 99.3% gross margin but
Engineering can't predict a deadline to within six months. Your
customers love you and hate you and burn phone support time like it
was Iraqi oil and will steal you blind if you stop to read your
You get to where the only people you can stand talking to are your
house lawyers. They get out of bed with the handsome twins from
Marketing Communications just long enough to tell you they've got a
brilliant scheme to lock up this year's laser-focus target market of
People Who Can't Live Without A New Little Black Dress. So you cross
your fingers, tell QA to quit harassing Engineering about spontaneous
reboots, and send your software out into the world while it's still in
training pants, EULA loaded for bear.
All of a sudden the shreds of tissue paper on my sewing room floor are
a Derivative Work, and my living room is a Copyrightable Collection,
and I'm not buying the pattern at the fabric store any more but
downloading it and clicking through a seventeen-page Limited License
to Make One or Fewer Dresses. My license key comes in the mail with a
hologrammed Certificate of Dress Authenticity that I have to attach to
my right butt-cheek before my dress will let me zip it up. God save
me if I put it on the left. Fetching dress accessories pop up,
suggesting that I invite Big Brother in to answer my questions about
hem measurements and licensing compliance while kneecapping me just in
You don't need this BS when you're dealing in a legally and socially
well understood intangible good and your customers can't kid
themselves or anyone else when they rip you off. Contracts aren't for
retail, they're for B2B relationships and bank loans. So copyright
alone clearly doesn't work for software, or for that matter anything
else whose end-user format is a blob of bits. Too damn easy to steal,
and anything you try to do about that makes it suck more than it
Unless, of course, you give it away. Then you start charging people a
dollar a minute for answers and five dollars a minute for right
answers, unless Mystery Guy's already looked at it in which case it's
a hundred-dollar flat fee (it's going to be a hard one but you'll get
net help out of him). That's based on some kind of rational cost +
profit economics instead of an endless overhang of sunk costs and
residuals. Dumb looks, of course, are still free. This, surprisingly
enough, works even though it makes sense -- ask IBM.
Hmm, that only matters for stuff that raises questions instead of
answers them by itself. But that, actually, is where the money in
_software_ is (as opposed to software monopolies) -- stuff that lets
you do more, better, so you have new questions to ask. Add a premium
for real originality, too, if it's clear that some kinds of innovation
can't be funded without it. Software patents are anathema around here
and I'm not even going to try to root for them when today's USPTO is
playing goalkeeper; but believe it or not, that would be fixable if
software economics wasn't a pipe dream.
But patents aren't enough; we need a tradable property right in brain
candy. Copyright we already gave up on. Trademark solves a real
problem for businesses with a reputation to protect, but doesn't do a
damn thing to create a tradable property right at the retail level.
Not unless you pull a Red Hat and use it as a hook to hang a EULA on.
Trade secrets aren't tradable, they're torts waiting to happen.
What's a girl to do?
For starters, you recognize that bits on disk aren't really a single
type of good, they're two. No, not 0s and 1s. Not Program and Data
either, that's so 1950. You've got your digital "soft goods" like
recorded music and movies and e-books and video games and other kinds
of e-toys -- consumables that people feed into orifices other than
their mouths. And then you've got the software that runs the world.
Who really gives a rat's ass what the digital world's rules for the
e-toys are? It's not like we can't fall back to vinyl and videotape
and paperbacks and non-3D-graphics-assisted wanking if we can't make
the digital versions work without the Bit Police. Oh yeah, Big
Entertainment is Big Money; they don't follow rules, they make them,
and they like their zero COGS. Fine, let them make the rules -- for
the e-toys. Let them do it the old-fashioned way, by fighting it out
in court while you referee. If you work at it -- and if you don't
play the FSF's "can't link my peanut butter against your chocolate"
mind games -- you can probably find a nice bright line between toys
and important stuff.
That leaves the software that runs the world. You know it when you
see it, though sometimes it sneaks up on you; Emacs and Linux started
as e-toys. Which brings us around full circle back to the
non-crack-smoking GPL; only this time as a matter of public policy
instead of as a model of how genius designers work anyway. I don't
want my 911 dispatcher's computer to be wearing a gunny sack, or for
that matter the sort of LBD that won't zip up unless you remember to
stick a hologram on your butt. Tends to distract from getting the
ambulance there before I bleed out.
So look really hard at the law and figure out what the GPL means. Now
look at public policy and figure out what it should mean. And then
say that's what it means after all, and by the way if anybody wants to
be the couturier to an emergency dispatch system five years from now
they have one and only one option in LBD EULAs, and that's the GPL.
Because it _works_, even though people can't agree on what it means;
and that's a sure sign of good law. And the dog's breakfast of
software license agreements, end-user and otherwise, that we have now
Same for my taxman and for crying out loud my legal system. Same for
the giant industrial combinations that have far more control over the
details of my life than any government in the history of mankind.
Same, even, for Big Entertainment -- although if you look past the
soft-goods aliasing factor, they're already figuring it out for
themselves, probably because porn, gambling, and Make-Money-Fast have
been the economic drivers of the Internet since before the Year
September Never Ended.
Oh yeah, we have all of those Intellectual Property Assets on
corporate America's balance sheet to protect. Well, I've got good
news and bad news. The bad news is that they don't exist; the market
for true "intellectual property" is a labor and services market -- not
retail and certainly not capital. What you're doing is capitalizing
the caput of Mystery Guy and hoping that he stays in the basement.
The good news is that, once you admit that it was all a Wall Street
fantasy, you can relax; Wall Street sustains its fantasies without
need for judicial assistance. And they'll never miss Mystery Guy as
long as you find him and fire him and then buy his services on an
hourly or weekly or project basis like God and RMS intended. Oh, and
if he's really _that_ good, he'll look like Linus Torvalds and code
So yes, U. S. Federal District Court of Indiana, take the GPL away
from us open-source zealots. And put it in the law books where it
(RMS, Linus, if you ever read this I hope you think it is funny and