2. REGER WORD 1/26/2005 8:25 PM 215 LET’S SWAP COPYRIGHT FOR CODE: THE COMPUTER SOFTWARE DISCLOSURE DICHOTOMY Christina M. Reger* I. INTRODUCTION One man’s jumble of 001 0000011110010110 1101 is another man’s object code. Similarly, to the ordinary person unskilled in computer language, “depress file,” “highlight toolbar,” “drop down box,” “move cursor,” “move highlighted box,” “depress print,” “highlight print,” “send message to queue printer,” and “display printer options” sound like elementary printing instructions, while a computer programmer recognizes these as potential commands for printing. Congress classified these creations, object code and source code respectively, as literary works protectable under the 1976 Copyright Act (“the 1976 Act”).1 The 1980 amendments to the 1976 Act (“the 1980 amendments”) incorporated computer programs, comprised of both object code and source code, and classified them as literary works.2 Once something is classified as a literary work, it receives all of the benefits of copyright protection granted upon registration.3Under the 1976 Act, copyright commences the moment a work is “fixed in any tangible medium of expression.”4 However, certain privileges, including the right to sue for infringement,5 come only when a * To my Father for teaching me that anything is possible, and to my Mother for her continued love, friendship, and support. Christina Reger earned her J.D. from Seton Hall University School of Law in 2003 and is currently practicing law with Budd Larner Rosenbaum Greenberg & Sade, P.C. in New Jersey. 1. See Copyright Act of 1976, 17 U.S.C. §§ 101–122 (2000). 2.See Pub. L. No. 96-517, § 10(a), 94 Stat. 3028 (1980) (codified as amended at 17 U.S.C. §§ 101–122 (2000)). Congress incorporated computer programs into this Act. Id. 3. See id. 4.Id. § 102. 5.See id. §§ 411–412 (establishing registration as a prerequisite to an infringement action); see also id. §§ 501–511 (detailing the remedies available, including injunctions, monetary2. REGER WORD 1/26/2005 8:25 PM 2004] LET’S SWAP—COPYRIGHT FOR CODE 216 copyright owner registers the work with the United States Copyright Office and deposits a “complete” copy of the “best edition” with the Library of Congress.6 The deposit requirement provides for disclosure of the information contained in the work.7 In fact, even as early as the 1909 Copyright Act,8 the quid pro quo of federal copyright protection has been disclosure.9 Disclosure stimulates and encourages creativity by enabling other authors to create and develop new works.10 Additionally, disclosure promotes economic efficiency by building upon current works to create better, more efficient creations and processes.11 Society, in return, receives a creative work that stimulates and promotes future works of greater efficiency. However, because the process for obtaining a copyright for computer programs significantly differs from that for all other literary works, the copyright law’s application to computer programs is flawed.12 Federal copyright protection for computer programs, both object and source code, damages, seizure, and destruction of infringing material). 6.See id. §§ 408, 412. The Copyright Act defines “best edition” as “the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.” Id. § 101. One familiar with computer code, and the thousands of pages it produces, may surmise this definition is one of convenience. “Complete” is not defined in the Copyright Act. Webster’s Dictionary defines “complete” as “having all necessary parts, elements, or steps.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY, 235 (10th ed. 1998). One might suggest these two definitions somewhat contradict each other. See also 37 C.F.R. § 202.20(c)(vii)(A)(1)–(2) (2002) (describing deposit requirements). In contrast, patent statutes require complete disclosure of all material relative to patentability to best serve the public interest and provide specific statutory language regarding disclosure of all relevant information. 37 U.S.C. §§ 1.52, 1.56, 1.58 (2002) (“The public is best served, and the . . . patent examination [is most effective] when, . . . the Office is aware of and evaluates the teachings of all information.”). 37 U.S.C. § 1.56 (2002) (emphasis added). In fact, the statutes further require that the files will be open to the public. 37 U.S.C. §§ 1.11, 1.12 (2002). See also the Rules of Practice for filing Trademarks, which require a description of the mark, a drawing, and a specimen. 37 U.S.C. §§ 2.35, 2.51, 2.52, 2.56 (2002). 7.See 37 C.F.R. § 202.20 (describing the general requirement as a complete copy). 8. Copyright Act of 1909, 17 U.S.C. § 13 (1947) (requiring deposit of the best edition). 9. See id. 10.See Stephen M. McJohn, The Paradoxes of Free Software, 9 GEO. MASON L. REV. 25, 38 (2000); see also infra Part V. 11. McJohn, supra note 10, at 38–40 (discussing that all intellectual property law should promote economic efficiency). 12. See generally 17 U.S.C. §§ 101–122 (codifying the process for obtaining copyright protection for computer programs and literary works).2. REGER WORD 1/26/2005 8:25 PM 2004] LET’S SWAP—COPYRIGHT FOR CODE 217 is an anomaly within the provisions for obtaining federal protection.13 In essence, computer code personifies the “golden child” in the field of copyright law because computer code requires limited disclosure, yet receives the same privileges.14Source code is written by highly technical individuals called programmers or developers.15 This code is subsequently converted into object code, which makes up a computer program or software package.16 Since the creation of source code is costly and time consuming, it is extremely valuable. The traditional model for the development of computer programs is referred to as a “closed source model,” in which the source code is held in secret and the program is distributed in its nonsensical object code form, which only the program understands.17An author is not required to submit a complete copy of the source code to register for copyright protection.18 Rather, only a portion of the work, customarily the first and last twenty-five pages (with some variations), must be submitted.19Furthermore, the 1976 Act
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