Saturday, March 15, 2003

View Source and Intellectual Property

For all of the HTML books, classes, and online help web sites, one of the most powerful ways that the knowledge of HTML programming spreads is "View Source." That is, the ability of any visitor -- by definition, anyone who can see the site -- to see how that site was built means that any new technique will quickly spread.

Unfortunately, there's no equivalent to "View Source" for most programs. Sure, there's open source, but I don't want to get into that right now. The point is that copyright law is built on the assumption that people can see the way an idea is put into form; in a book, people can read the words. In lawyer-speak, this is the embodiment of the idea, and you can only copyright embodiments, not ideas.

But for code, you can't really see the embodiment. You can see the results of the embodiment (that is, the executable program), but not what I'd consider to be the true embodiment, the source code. It's clear that copyright law, based as it is on centuries-old legal precedents, didn't really foresee the duality of code and program.

The whole idea of intellectual property law in the United States is that we grant a limited monopoly to the rights-holder in exchange for some public benefit. But without "view source," what's the benefit? A common claim is that people won't create without the guarantee of intellectual property protection, but this seems less useful for code; after all, it is (partly) protected by the compilation process.

With the recent upholding of the Bono Copyright Extension Act, we're stuck with a 95 year corporate copyright term. This is completely overkill for software; it's hard to imagine any software retaining any value after 95 years. (And here's an interesting, if academic question: does a copyright holder have a duty to disclose the copyrighted material after the term expires? Will we have a right to view the source to Windows 3.0 in 2086?)

Intellectual property protection is important, and we need to find a system that protects the rights of holders as well as provides for public benefit. But I don't think that for software, copyright is the right tool. In a later entry, I'll start describing what I think is a better system.