Originally, computer programs were not protected by copyrights because they were not considered fixed, tangible works. Object code was distinguished from source code. (Object code is instructions for machines–source codes are for humans.) Object code was viewed as a utilitarian good, produced from source code rather than as a creative work in and of itself.
The U.S. Copyright Office attempted to classify computer programs by drawing an analogy: the blueprints of a bridge and the resulting bridge compared to the source code of a program and the resulting executable object code:
This analogy caused the Copyright Office to issue copyright certificates under its “Rule of Doubt“.
In 1974, the newly established U.S. Commission on New Technological Uses of Copyrighted Works (CONTU) decided that “computer programs, to the extent that they embody an author’s original creation, are proper subject matter of copyright.”
Then in 1980, the U.S. Congress added the definition of “computer program” to existing copyright laws in order to allow the owner of the program to make another copy or adaptation for use on a computer. This legislation, plus court decisions such as Apple v. Franklin, clarified that the Copyright Act gave computer programs the copyright status of literary works. To simplify: Congress said compiling code is like writing War an Peace.
As a result, software companies began to claim that they did not sell their products but rather “licensed” them to customers. Why? Because this enabled them to avoid the transfer of rights to the end-user via the first-sale doctrine. These software license agreements are now called end-user license agreements (EULAs).
For roughly 1,000 years Western Civilization has expanded property rights to democratize who can own what. In the last 30 years, since software licensing began eating the world, we’ve been screwing it all up.
True ownership is as different from licensing as owning land is to renting a house. Licensing specifically precludes ownership. Licensing is a great model for the kings of the tech industry (Google, Amazon, Apple, Facebook) but it’s less than optimal for us serfs (end-users and developers).
To understand why, one has to look back at the history of property…