Charles Duan, What is Copyrightable in Software? (on Canvas)
Notes: The previous class was about whether software should be copyrightable at all. But even if it is, there remains a hard question as to which aspects of it are copyrightable. Charles Duan’s article attempts to draw that boundary. Duan (who did his postdoc work at Cornell Tech) was a computer-science major in college and remains an active programmer.
Questions:
What is software, according to Duan? How does his description compare to CONTU’s, Hersey’s, and Stallman’s?
Is Duan’s distinction between the communicative and functional elements of software technically sound?
Is the distinction consistent with the Copyright Act and caselaw interpreting it?
Is the distinction consistent with CONTU’s economic arguments for software copyright?
Additional Resources: There is a vast literature on software copyright, so I can only recommend a few highlights. If you look through the footnotes in Duan’s article, you will find many of the usual suspects. The following are not necessarily the most important pieces, but they are ones that I think are particularly rewarding reads.
Mark A. Lemley and Pamela Samuelson, Interfaces and Interoperability after Google v. Oracle, 100 Texas Law Review 1 (2021). Google v. Oracle could have been a revolution in software copyright, but wasn’t. This article sets it in context.
Joshua Bloch and Pamela Samuelson, Some Misconceptions about Software in the Copyright Literature, Proceedings of the 2022 Symposium on Computer Science and Law (CSLAW’22). Joshua Bloch is a software developer and author of several highly-regarded Java programming textbooks. This one is an especially enjoyable read.