Software Copyright?

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• Readings:
  • Final Report of the Commission on New Technological Uses of Copyrighted Works (1978), pages 3 to 38.
  • Richard M. Stallman, Why Software Should Be Free
• Notes: CONTU’s recommendations were largely adopted by Congress; the present Copyright Act (as amended) reflects its proposal that software should be protected as a literary work. If there is an orthodox statement of how U.S. copyright law thinks about software, this is it. Richard Stallman (but see) was the driving force behind the creation of the free-software movement, and his essay is a rejection of this orthodoxy. He argues that the entire concept of owning software is a mistake.
• Questions:
  1. What is software (“computer programs”), according to CONTU?
  2. Why does CONTU recommend legal protections against the copying of software?
  3. Why does CONTU recommend treating software as a literary work (the same category used for poetry and novels)?
  4. Where does Commisioner Hersey (the author of Hiroshima, among many other books) disagree with the CONTU majority? Does his understanding of software differ from the majority’s?
  5. Where does Stallman disagree with the CONTU majority? Does his understanding of software differ from the majority’s?
  6. Is Stallman’s argument the same as Klemens’s from last time? Do they rhyme?
• Additional Resources:
  • Eben Moglen, Anarchism Triumphant: Free Software and the Death of Copyright, First Monday (Aug. 1999). This is a longer, more detailed, and delightfully sarcastic articulation of the case against software copyright.
  • Samir Chopra and Scott D. Dexter, Decoding Liberation: The Promise of Free and Open Source Software (2007). An extended and more academically rigorous exploration of the philosophical case for free software.
  • Pamela Samuelson, CONTU Revisited: The Case Against Copyright Protection for Computer Programs in Machine-Readable Form, 1984 Duke L.J. 663. Samuelson’s work towers over the field of software copyright, and I could easily have filled the semester’s reading list with her work. This piece was one of the most significant early critiques of CONTU.
  • Pamela Samuelson, Randall Davis, Mitchell D. Kapor, and J.H. Reichman, A Manifesto Concerning the Legal Protection of Computer Programs, 94 Columbia Law Review 2308 (1994). A canonical article on software copyright, combining technical precision with a thoughtful economic analysis. Even decades later, it remains one of the most thorough and careful treatments of the subject.
  • David Stein, Hot Apps: Recalibrating IP to Address Online Software, 2024 Wisconsin Law Review 1014. David Stein was a software engineering manager before going to law school and entering academia. This article argues that the shift from apps that run on users’ computers to apps that run as cloud services fundamentally changes the economic argument for software copyright.