Software source code should have different copyright to other works. – Mac Nguyen
2 Mar 2021

Software source code is the building block in software design. It is the language used by software engineers to determine the function, as well as creative identity, of their final products. Like most written works, source code is subject to copyright laws, as this is one of the fundamental ways to protect the creator’s prosperity, thus giving him or her incentive to further create. However, we have to examine how similar software source code actually is to other written works; in essence, questioning how appropriate the current copyright laws actually are on source code.

The main purpose of copyright is to prevent others from duplicating the particular form of expression one uses to express a certain idea – not the actual idea itself. For example, a written description of a certain film may not be duplicated by other people – however, nothing prevents one from writing their own description, synopsis or review of the film. By writing one’s own critique of the film, they are producing an original creation. The same principles apply to software source code: to duplicate another’s copyrighted source code would be unlawful, but to create an original piece of source code which may or may not perform similar operations is not.
Another fundamental purpose of copyright is to give the creator a monetary incentive to create. With respect to software source code, there is a greater incentive to build upon, expand and improve current code than it is to create from scratch, due to the complex nature of source code. Therefore, it would be more practical to provide a monetary incentive for authors to share their work, since this particular area is much more dependent on “tinkering” with established knowledge bases. In other words, the incentive to create in software engineering comes from the ability to access previously created material, rather than profit, and this cannot exist in the presence of copyright, or at least not until copyright expires and the material enters the public domain.

At the moment, software source code, due to its written form, is treated as a ‘literary work’ and is therefore subject to the same copyright laws as other works such as literature, sheet music and dance choreography. This means that the duration in which the source code will be held under copyright lasts for the life of the author plus 70 years. The problem with this is that software engineering is almost entirely based on the development and improvement of previous versions. Other literary works have more artistic inclinations, as opposed to source code which is more technologically inclined. The necessity for access (access being use and publication) to previously published work is much more crucial for source code than it is for other written works since code cannot be changed substantially and still function in the desired way, unlike regular literary works which don’t actually need to “function”. The technological development and expansion of computing is at a rate which makes the duration of current copyright on source code far longer than necessary, and therefore a different copyright proposal befitting to this type of written work would be more appropriate in order to preserve the existence of future collaborative development.

One proposal would be to simply abolish copyright altogether and form a new system, whereby certain licences allow software source code to be available to everyone. This movement, initiated by Richard Stallman, actually exists, and it is known as the free software or open-source software movement. Free software, according to Free Software Foundation, is software which users have “the freedom to run, copy, distribute, study, change and improve the software”. Many have argued in favour of free/open-source software for its potential as a learning platform and also as a means of improved productivity. This is shown in Lawrence Lessig’s Free Culture, in which Lessig quotes John Seely Brown, chief scientist of the Xerox Corporation:

This opportunity creates a “completely new kind of learning platform,” as Brown describes. “As soon as you start doing that, you…unleash a free collage on the community, so that other people can start looking at your code, tinkering with it, trying it out, seeing if they can improve it.” Each effort is a kind of apprenticeship. “Open source becomes a major apprenticeship platform.”

(2004, p. 47)

Along with the educational benefits of providing open-source software, there is also the efficiency in the development of software. In the essay The Cathedral and the Bazaar, author Eric Raymond emphasises the point that open-source software allows for contribution from a greater community of software developers, who can then spot and fix problems quickly and efficiently. This is neatly summarised by the line “given enough eyeballs, all bugs are shallow” – the quote now known as Linus’s Law, named after Linus Torvalds, founder of Linux.

Major proprietary software companies such as Microsoft withhold source code. In addition to the mass piracy of their products, this has allowed Microsoft to thrive on consumer dependency on their products, empowering them as a corporation en route to becoming a monopoly. Microsoft abused this power and was taken to court, accused of obstructing consumers’ rights to using third party browsers on Windows through modifying application programming interfaces. The effect of having one all-powerful corporation dominating the software market is optimal for the corporation, but not so much for social well-being. Proprietary software companies such as Microsoft block society from accessing their source code, so there is no social input into the development. Open-source software removes this barrier, providing academic and economic benefit to society without feeding corporate greed.

Lessig argues in his book, Code and Other Laws of Cyperspace, that copyright and the idea of intellectual property in general tends to favour large corporations in their profiteering rather than concerning itself with the preservation of knowledge, which proved to be problematic during the Y2K epidemic:

And were the intellectual property system more concerned with capturing and preserving knowledge than with allowing private actors to capture and preserve profit, we might have had a copyright system that required the lodging of source code with the government before the protection of copyright was granted, thus creating an incentive to preserve source code and hence create a resource that does not now exist but that we might have turned to in undoing the consequences of this bad code.

Copyright is therefore not only detrimental in that it diminishes incentive for software engineers to create by barring access to source code, but can also be a hindrance in situations such as Y2K.

Generally speaking, current copyright laws are inapplicable to software source code; however, creators still do need profit as an incentive, as least as capital to cover project funds , in which case a copyright term of shortened and realistic duration – one which provides the author with enough benefits but does not outdate the source code upon copyright expiration – would be more appropriate. The abolition of copyright altogether is another idea that is growing steadily with the emerging popularity of free/open-source software, particularly Linux and GNU operating systems. If Microsoft released their source code into the public domain, it would catalytically improve the possibilities for learning among software engineers and the rate at which software can progress would grow vastly, given Microsoft’s current technological advancement.

The limitations of keeping source code under copyright greatly outweigh any benefits to the author. What use is it going to be after life plus 70 years to the software engineers of that era when it is finally released into the public domain? In an interview with John Lasseter, chief creative executive of Pixar Animations studios, Lasseter points out that Pixar had twelve times the rendering power of Toy Story to create A Bug’s Life, the animation feature released a mere four years after Toy Story. This is just a simple example of the exponential growth of computing technology in short periods of time, as well as highlighting how quickly technology goes out of date and ultimately, the futility of keeping it under copyright for such an extensive period of time. Literature, music and art do not become outdated as quickly, as many works from centuries ago are still greatly respected nowadays. However, the value of software source code and other aspects of technology today will not carry the same kind, if any kind, of value in the public domain centuries from now.


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