Following is my essay I am submitting for a fellowship for the Intellectual Property Colloquium. It must be less than two pages, hence its brevity. Doubt it's of interest, but just in case:
Practically every area of IP law from gene patenting to music licensing to catching hackers influences every person in our global community in some capacity. One area that is particularly influential is software and its development. Today, and in the future, software is king; our cars, phones, TVs and refrigerators all operate on software of some kind. In this area, the one issue that IP law is just being presented with, even though it is far from a new concept, is open-source software. The concept that source code is by its very nature collaborative and should be freely distributed is by no means new; there are, and will continue to be, battles in the courts over the process of software development and access to information against issues of copyrightability, patentability and profitability.
Software development, by its very nature, is a collaborative and derivative effort. Every programmer when they are first starting learns the value of stealing code. Stealing code in the programmer’s world means looking at other’s code to learn how a program works. Take for example someone wishing to learn to program in HTML. The person wishing to learn to program in this language, before buying a book on How-To Program in HTML, before even looking at a website on How-To Program in HTML, would probably open a web browser, go to a website, right-click and choose ‘view source’. This person would then copy-and-paste and rearrange bits and pieces of code to see what happened. This act alone would, strictly speaking, make the person liable for copyright infringement. Of course, he probably could claim ‘fair use’, but why should the issue even be raised in the first place? All software development uses, in some form, this method of derivative creation.
More importantly, source code embodies the essence of idea and expression. When a programmer sets out to write a particular bit of software, ideally the end-result is the most efficient and practical method possible of achieving this goal. In copyright terms when a programmer has an idea, the very goal of the software is to be the simplest expression of that idea. Computer Associates Int’l v. Altai, Inc., the seminal case in this area, upheld the merger doctrine as it is applied to source code; while doing so, that court recognized that the copyright for software protects little more than the literal code itself from infringement. They found, rightly, that virtually every form of expression embodied in software-development is either a merger of idea or some method central to the nature of development (i.e., scenes-a-faire or public domain). In the language of other copyrights, it appeared that a software copyright was extremely thin.
However, through the practical operation of the thin copyright and its attendant End-User Licensing Agreements (“EULA”) and compiled nature, the idea ends up being copyrighted as well. If programmers wish to build upon the idea embodied in a piece of software, they are prohibited from doing so unless they re-develop the entire work from scratch only to add a tiny modification. EULAs often prevent reverse engineering software, and the compiled nature of the code makes de-compiling difficult and, often, unreliable rendering access to the idea impossible.
In many respects, protecting software is much closer to patent than copyright; it is inherently functional and highly technical. The benefits of moving software into the patent world would eliminate many of the issues found in copyright. This is not to say that patenting software would not cause problems as well; it certainly has its own albatross’. However, the primary benefit of a move to patent protection would be the elimination of the public harm while providing the same incentive to create (protection of the literal code).
Perhaps a move not quite so drastic would work, but a change is needed; the public harms of the copyright paradigm far outweigh the private benefits. As consumers and users of software, we should not be controlled in the pursuit of our own education. To developers, the primary source of creation, the work upon which to derive another useful work, is removed from their grasp. The Electronic Frontier Foundation (EFF) and the Free Software Foundation (GNU Project) are just two of the organizations that are helping to solve these important issues. While they have made some strides, these issues are far from settled and are only starting to be recognized by our courts.