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https://en.wikipedia.org/wiki/Software_copyright#History https://en.wikipedia.org/wiki/Software_copyright#History I wasn't practicing law back then, but my sec

https://en.wikipedia.org/wiki/Software_copyright#History https://en.wikipedia.org/wiki/Software_copyright#History I wasn't practicing law back then, but my secondhand understanding is that while it wasn't clear that copyright would apply to software, or how, savvy players largely expected some kind of protection for written software beyond trade secrecy. There were all kinds of questions, theories, and proposals about whether that would happen under copyright law or perhaps through some software-specific regime. The US answer was clear when "computer program" was written into the scoping definitions of the Copyright Act. We still cite back to the commission that pushed that recommendation, CONTU, when debating loose ends.

skissane 3y ago
CONTU wasn't established until 1974, and the US Copyright Act wasn't amended to explicitly affirm the copyrightability of computer programs until 1980 – but the US Copyright Office was already accepting copyright registrations of computer programs by 1972 [0]. While the Copyright Office's interpretation of copyright law is not always affirmed by the Courts or Congress, more often than not it is – so, it would not have been an unreasonable assumption in 1972 that the answer to "Are computer programs copyrightable under US law?" was likely "Yes". I don't know whether the same answer would have been true 3 years earlier or not, but quite possibly it would have been – it is an interesting historical question, when was the first copyright registration for a computer program which they accepted? I also found a journal article [1] which says (p. 1748, my emphasis): > There was considerable debate in the 1960s, during the gestation of the legislation that became the Copyright Act of 1976, about whether computer programs could, or should, be protected by copyright law. Although no one seriously questioned that source code forms of programs could be copyrighted as written texts, there were two principal concerns about applying copyright to machine-executable forms of programs... So, according to that, the debate was primarily about whether object code was copyrightable, as opposed to source code. At the time, distributing software as source code was extremely common – indeed, configuration files were rare, configuration was commonly hardcoded in the source code, making compilation a necessary part of the installation process – which meant that source code being much more clearly copyrightable than object code would have been less of an obstacle to commercial software distribution than it would have been in later decades, when object code only distribution became much more common. [0] Catalog of Copyright Entries. Third Series: 1972: Title Index. Books: July-Dec. page 3926 which lists "CILA Mark-1 system (casualty insurance logistics automated) source program listing. NETWORK DATA PROCESSING CORP" – https://books.google.com/books?id=4kAhAQAAIAAJ&pg=RA1-PA6 https://books.google.com/books?id=4kAhAQAAIAAJ&pg=RA1-PA6 – note there are many other references to "computer programs" in that index, but it is sometimes unclear whether they are manuals or source code; this particular entry is rather clearly source code. [1] Pamela Samuelson, "The Uneasy Case for Software Copyrights Revisited", George Washington Law Review, vol 79 no 6 (September 2011), pp. 1746-1782. https://www.gwlr.org/wp-content/uploads/2012/07/79-6-Samuelson.pdf https://www.gwlr.org/wp-content/uploads/2012/07/79-6-Samuels...
- kemitchell 3y ago
  > While the Copyright Office's interpretation of copyright law is not always affirmed by the Courts or Congress, more often than not it is I don't think I've seen that asserted before. I certainly wouldn't bank on it these days. As for timing, there were companies speculating well before '72 that copyright would be the game. Archival work found a copyright-based license agreement from IBM from as early as 1969. See https://www.create.ac.uk/blog/2018/11/14/the-first-software-licensing-agreement-and-its-relationship-with-copyright-law/ https://www.create.ac.uk/blog/2018/11/14/the-first-software-.... That's not the same as saying the question was settled. After the Copyright Act amendment, it sure was.
  - skissane 3y ago
    > I don't think I've seen that asserted before. I certainly wouldn't bank on it these days. Let me ask the question historically: in previous decades, how often have the legal interpretations of the Copyright Office ended up being affirmed by the Courts and/or Congress, versus how often have they been overturned by them? Also, the Courts owe a certain degree of deference to regulatory agency statutory interpretations, as established by the Supreme Court cases Skidmore v. Swift & Co. (1943) and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)–the second of which came after the time period we are discussing, but the first came before it. There is no obvious reason why that deference would not also apply to the US Copyright Office's interpretations of copyright law, and indeed there is case law applying those decisions to it. > That's not the same as saying the question was settled. The journal article I cited says that the question was settled all along for source code, and the legal doubts were only about object code.
    - kemitchell 3y ago
      The assertion about the Copyright Office's batting average was yours. If you want to make the assertion, the research question's also yours! As I recall, Skidmore held that what agencies say laws mean gets only the deference it deserves. In other words, the courts will reconsider for themselves how persuasive their arguments are. Chevron starts with the question of whether the administrative agency's decision was made in a way that a statute gives the force of law. The Copyright Act gives the Copyright Office that power in administering some processes, like copyright registration. But last I checked, which was well after Chevron, questions about whether an application followed the registration process got deference, but the more basic question of whether something's copyrightable in the first place remained with the courts. Just because it's called the "Copyright Office" doesn't mean the courts will defer to it about the whole Copyright Act. This difference could very well matter for some going issues, like the Copyright Office's recent rejection of some artwork created with the help of generative AI. I would be very, very surprised to see appeals courts handing that legal question over the Copyright Office.

skissane 3y ago

CONTU wasn't established until 1974, and the US Copyright Act wasn't amended to explicitly affirm the copyrightability of computer programs until 1980 – but the US Copyright Office was already accepting copyright registrations of computer programs by 1972 [0]. While the Copyright Office's interpretation of copyright law is not always affirmed by the Courts or Congress, more often than not it is – so, it would not have been an unreasonable assumption in 1972 that the answer to "Are computer programs copyrightable under US law?" was likely "Yes". I don't know whether the same answer would have been true 3 years earlier or not, but quite possibly it would have been – it is an interesting historical question, when was the first copyright registration for a computer program which they accepted? I also found a journal article [1] which says (p. 1748, my emphasis): > There was considerable debate in the 1960s, during the gestation of the legislation that became the Copyright Act of 1976, about whether computer programs could, or should, be protected by copyright law. Although no one seriously questioned that source code forms of programs could be copyrighted as written texts, there were two principal concerns about applying copyright to machine-executable forms of programs... So, according to that, the debate was primarily about whether object code was copyrightable, as opposed to source code. At the time, distributing software as source code was extremely common – indeed, configuration files were rare, configuration was commonly hardcoded in the source code, making compilation a necessary part of the installation process – which meant that source code being much more clearly copyrightable than object code would have been less of an obstacle to commercial software distribution than it would have been in later decades, when object code only distribution became much more common. [0] Catalog of Copyright Entries. Third Series: 1972: Title Index. Books: July-Dec. page 3926 which lists "CILA Mark-1 system (casualty insurance logistics automated) source program listing. NETWORK DATA PROCESSING CORP" – https://books.google.com/books?id=4kAhAQAAIAAJ&pg=RA1-PA6 https://books.google.com/books?id=4kAhAQAAIAAJ&pg=RA1-PA6 – note there are many other references to "computer programs" in that index, but it is sometimes unclear whether they are manuals or source code; this particular entry is rather clearly source code. [1] Pamela Samuelson, "The Uneasy Case for Software Copyrights Revisited", George Washington Law Review, vol 79 no 6 (September 2011), pp. 1746-1782. https://www.gwlr.org/wp-content/uploads/2012/07/79-6-Samuelson.pdf https://www.gwlr.org/wp-content/uploads/2012/07/79-6-Samuels...

kemitchell 3y ago
> While the Copyright Office's interpretation of copyright law is not always affirmed by the Courts or Congress, more often than not it is I don't think I've seen that asserted before. I certainly wouldn't bank on it these days. As for timing, there were companies speculating well before '72 that copyright would be the game. Archival work found a copyright-based license agreement from IBM from as early as 1969. See https://www.create.ac.uk/blog/2018/11/14/the-first-software-licensing-agreement-and-its-relationship-with-copyright-law/ https://www.create.ac.uk/blog/2018/11/14/the-first-software-.... That's not the same as saying the question was settled. After the Copyright Act amendment, it sure was.
- skissane 3y ago
  > I don't think I've seen that asserted before. I certainly wouldn't bank on it these days. Let me ask the question historically: in previous decades, how often have the legal interpretations of the Copyright Office ended up being affirmed by the Courts and/or Congress, versus how often have they been overturned by them? Also, the Courts owe a certain degree of deference to regulatory agency statutory interpretations, as established by the Supreme Court cases Skidmore v. Swift & Co. (1943) and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984)–the second of which came after the time period we are discussing, but the first came before it. There is no obvious reason why that deference would not also apply to the US Copyright Office's interpretations of copyright law, and indeed there is case law applying those decisions to it. > That's not the same as saying the question was settled. The journal article I cited says that the question was settled all along for source code, and the legal doubts were only about object code.
  - kemitchell 3y ago
    The assertion about the Copyright Office's batting average was yours. If you want to make the assertion, the research question's also yours! As I recall, Skidmore held that what agencies say laws mean gets only the deference it deserves. In other words, the courts will reconsider for themselves how persuasive their arguments are. Chevron starts with the question of whether the administrative agency's decision was made in a way that a statute gives the force of law. The Copyright Act gives the Copyright Office that power in administering some processes, like copyright registration. But last I checked, which was well after Chevron, questions about whether an application followed the registration process got deference, but the more basic question of whether something's copyrightable in the first place remained with the courts. Just because it's called the "Copyright Office" doesn't mean the courts will defer to it about the whole Copyright Act. This difference could very well matter for some going issues, like the Copyright Office's recent rejection of some artwork created with the help of generative AI. I would be very, very surprised to see appeals courts handing that legal question over the Copyright Office.