Doghouse – Copyright

Last month I touched briefly on an issue with trademarks, and this month I would like to continue the theme of intellectual property by talking about copyright.

As I normally do, I will go back in time to when computer software could not be copyrighted. In 1969, when I started programming, you would protect your programs (if you wanted to) by using contract law or "trade secrets" (or both).

Much of this was because computers were astronomically expensive by today's standards. Even the smallest of computers might cost more than $50,000 (and that was when $50,000 was a lot of money). Software, if you purchased it, was also expensive, and I remember purchasing a compiler from a company and paying $100,000 for a single copy of that compiler that would be used on a single computer to compile one program at a time. My company spent that money because the compiler would get a 10 percent performance improvement from the programs we compiled for our $2.5 million mainframe (and remember that I am talking about 1975 USD).

My company negotiated for a month to purchase this compiler, and when it arrived it was in source code form on a 12-inch magnetic tape. It also had an engineer from the company arrive with it, and their job was to transfer the compiler code to our mainframe, build the compiler on the mainframe, run the qualification tests, and prove that the compiler worked. When we signed off on the installation, my company's lawyers kept the source code tape in escrow, in case the little software company went out of business. All of this was written into the contract and signed by both parties.

I know that some people will find this hard to believe in today's market, but the number of computers of any architecture and operating system (if they even had an operating system) back in those days was measured in hundreds or thousands, not in millions (or even billions) like today. Contract law was reasonable if you were going to sell expensive software in relatively small quantities.

Not everyone bought commercial software back in those days. Many people wrote software because they needed it for their own job. Physicists, mathematicians, electrical engineers, the military, the government, educators, researchers, and more wrote software because they needed it.

After writing the software for themselves, these "amateur programmers" were not interested in selling the software, because even in those days selling software was difficult and complex, so they might donate it to user groups such as DECUS, SHARE, and others. These user groups would publish catalogs of the software and make it available for the cost of copying and distribution, but once you had the software you could make as many copies as you wished because the software was not protected by copyright.

Then in the early 1980s the game changed. Makers of computer game systems would design a game and build a game system only to have their competitors buy one copy of it, see how the board was built, and then duplicate the ROMs that held the program. Game manufacturers wanted to protect their ROMs and the ones and zeros in the ROM with copyright. Later this was expanded to protecting the source code of these programs and then expanded to cover software of any type.

While copyright law is often slightly different as you go from country to country, eventually the concept of software copyright moved towards standardization, and by the mid-1980s contract law for the protection of software was replaced by copyright and licensing and (as time went on) other concepts such as sub-licensing, which sometimes is so complex that lawyers slug it out in court.

Some people do not believe in copyright and prefer to put their software into the "public domain," but in this day and age you may as well think of "public domain" software as another type of license, because it is very hard to produce software that is truly "public domain" unless licensed that way. In fact, the "restrictive" parts of the GPL would be impossible to enforce if the GPLed code were in the public domain.

Of course it is difficult to talk about copyright without mentioning software piracy. A lot of FOSS people waive their hands about software piracy, but in its most fundamental form software piracy takes away the right of the programmer to say what happens with their software, and devalues the art and work that goes into programming. If a programmer (or artist) wants their software (or art) to be shared or given away, they can write a license to do that.

Next month, I will talk about licensing, how licenses differ, and whether "permissive" is better than "restrictive" in open source licensing.