The Source Code Ain't It

Ernie the Attorney writes:
In the patent world, you get a patent in exchange for revealing the process and describing it in legally sufficient detail.  For most copyrighted material (i.e. songs, writings, paintings) it's pretty much the same.  But with software copyrights, if the person seeking the copyright wants to they can copyright the stuff and not provide the source code.  That is unusual as far as I know.

It's not unusual at all. What Ernie (and Lessig) both seem to be missing is a correct analogy, which is why it seems unusual to them. They seem to be under the mistaken impression that because source code isn't revealed, a copyright allows the software application that is protected to somehow disclose less information about the work than, say, a piece of music, artwork, or written prose.

If their point is taken to a more appropriate analogy, what they are saying is equivalent to saying that musicians who copyright a song must disclose all of the instruments used in creating the music, the fingering techniques they used, the members of the backup band, and all of the other minutia that went into creating the song. Or in the case of a written work, it would be like asking the writer to disclose info on the typewriter used, whether they hunt and peck or touch type, what kind of ribbon produced the manuscript, whether they had a drink before they wrote the final chapter, is the character named "Smith" autobiographical, etc.

Clearly musicians and authors are under no compunction to disclose this sort information in order to obtain a copyright for their work product. Yes, they have to provide the Copyright Office with a representative sample of the work -- music notation, a recording, a printed copy, a book, or whatever medium is most appropriate for preserving a record of the work.

How the work is created is irrelevant for a copyright. Let's not confuse the copyright process with the patent process. The finished product is what the copyright covers. Not the tools, techniques, and materials (i.e., source code) that were used to build the final, binary software application.

Perhaps if Ernie and Larry built software for a living, they'd understand why source code is NOT the finished product and their arguments aren't on target. Whether I choose to use C, C++, Java, or assembly language, whether I used a binary tree, AVL tree, or an unordered list, what my routine names were, variable declarations looked like, or what the comments said is completely irrelevant to the appearance and function of the finished product from the users' perspective.

If the creator of a piece of software chooses not to disclose the tools, techniques, and source code (for obviously good, competitive reasons), then it's their loss when it comes time to litigate. But I don't think Ernie and Dr. Lessig are motivated by altruistic goodwill towards the misguided software authors who choose not to share their source and need fatherly advice on how to protect their IP.

I'm surely not a lawyer, but let's have a little common sense here. The work product and value being created by a piece of copyrighted software doesn't lie in the source code. That's just text on a page and is of no use to the viewer of the work (i.e., the user). The work is the functioning piece of code that creates images, plays music, processes words, or does some other unique thing that no one else has done. That's what's burned on the CD that is on file at the Library of Congress.

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