Executable Code is Not the Proper Subject of Copyright Law A retrospective criticism of technical and legal naivete in the Apple V Franklin case Matthew M Swann Clark S Turner Ph D Department of Computer Science Cal Poly State University November 18 2004 Abstract Copyright was created by government for a purpose Its purpose was to be an incentive to produce and disseminate new and useful knowledge to society Source code is written to express its underlying ideas and is clearly included as a copyrightable artifact However since Apple v Franklin copyright has been extended to protect an opaque software executable that does not express its underlying ideas Common commercial practice involves keeping the source code secret hiding any innovative ideas expressed there while copyrighting the executable where the underlying ideas are not exposed By examining copyright s historical heritage we can determine whether software copyright for an opaque artifact upholds the bargain between authors and society as intended by our Founding Fathers This paper first describes the origins of copyright the nature of software and the unique problems involved It then determines whether current copyright protection for the opaque executable realizes the economic model underpinning copyright law Having found the current legal interpretation insufficient to protect software without compromising its principles we suggest new legislation which would respect the philosophy on which copyright in this nation was founded Table of Contents INTRODUCTION 1 THE ORIGIN OF COPYRIGHT 1 The Idea is Born 1 A New Beginning 2 The Social Bargain 3 Copyright and the Constitution 4 THE BASICS OF SOFTWARE 5 Software s Dual Nature 5 Source Code Software in Human Readable Form 5 Object Code Software in Machine Readable Form 6 COPYRIGHT PROTECTION FOR SOFTWARE 6 Software s Status Under Copyright 6 Copyright and Source Code 7 Copyright and Object Code 7 Protections Offered by Software Copyright 8 SOFTWARE AND THE SOCIAL BARGAIN 8 The Spirit and the Letter of the Law 8 Source Code 9 Object Code 9 Conclusions 10 NEW DIRECTIONS 11 Protecting Software s Unique Form of Expression 11 Effects 12 Moving Forward 13 About the Author 13 i Introduction Copyright is an artificial legal concept created for the purpose of encouraging innovation in the sciences and the arts impacting not only professionals and scientists but also society as a whole Thanks to the utilitarian nature of copyright as established in the Constitution society benefits from the discoveries of the learned while those on the cutting edge of innovation are allowed to profit from the publication of their research This tradeoff termed the social bargain is the underpinning of the modern interpretation of copyright Traditionally thought only to apply to literature and the arts copyright has in recent years been extended to cover software as well Crucial to this extension of the law is determining whether it continues to respect the bargain forged by our Founding Fathers between society and inventors any new application of copyright should hold true to the spirit in which it was established By examining the context in which copyright in this nation was born we can divine the responsibilities that copyright holders have in holding up their end of the social bargain In the following pages we will examine copyright s origin and development then look at software and analyze the characteristics which set it apart from traditionally copyrighted media Finally we will look at copyright as it applies to software to determine whether the current state of affairs reflects the incentives which copyright was created to provide Having covered this ground we can look critically at how well copyright is doing that job and whether there are other alternatives to be considered The Origin of Copyright The Idea is Born Copyright began in fifteenth century England with the establishment of the Stationers Guild Formed in 1403 by bookbinders scriveners and stationers to protect their trade from outside competition it was granted an official charter in 1557 by Queen Mary Tudor1 This charter gave the Guild a monopoly over the printing and publishing trade new books first had to be licensed by the Crown then entered into the Stationers register the first stationer to enter a book into the register then owned an exclusive but transferable right to its duplication Under this system both the Crown and the Stationers Guild benefited from the monopoly The Crown used its licensing requirement to suppress the publication of books that contained dangerous ideas while the guild enjoyed a virtual monopoly on the book trade England s Long Parliament further strengthened this policy during the mid seventeenth century as new laws were added which threatened fines and imprisonment of authors publishers sellers and buyers of scandalous or libelous materials 2 By the end of the seventeenth century presses outside of London Oxford and Cambridge were banned as Parliament took tighter and tighter control of printed works 1 See also the Star Chamber Decree of 1586 Harry Hillman Chartrand Copyright C P U Creators Proprietors and Users Journal of Arts Management Law Society Vol 30 No 3 Fall 2000 2 1 Copyright in the seventeenth century and before was based on the natural rights model where the right of the author of a work to control its publication and dissemination was taken to be naturally endowed by human nature This is in contrast to the utilitarian model where copyright is a right conferred by law with the purpose of benefiting society as a whole Rather than holding on to their rights however authors were forced to sell their rights to the Stationers Guild for a one time fee upon the initial publication of their work rescinding any rights to subsequent royalties3 The protections afforded by copyright then served only the interest of the Crown and the publishers themselves Furthermore the Guild offered their services without regard to any guiding principle save self preservation Queen Mary incorporated the Stationers Company to set up a mode of regulating the English printing trade that would facilitate the efforts of the Romish clergy to stamp out the Protestant Reformation But the motives of the stationers were of a less exalted kind Thus Elizabeth relying on the stationers self interest confirmed the Charter to turn the stationers to support the English rather than the Romish church and the Stationers Company