Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010
ISSUES IN SOFTWARE LICENSING AND COPYRIGHT
Some Differences Between Standard Literary Works and Computer Programs
Standard works say something
Provide information, a public good, through copies. Information is nonrival (for any given level of production, the marginal cost of providing it to an additional person is zero) and nonexclusive (additional people cannot be excluded from consuming it).
Provide entertainment through copies
Initial copy provides full value to possessor. No need for additional copies in order for possessor to obtain full value.
No need for license of any of exclusive rights of copyright owner (CO)
Prior to electronic age, non-negligible marginal cost for additional copy.
Copy necessary to obtain full value, so number of copies some measure of value obtained
Computer programs do something in a machine. “Software is a machine whose medium of construction happens to be text.” (R. Davis, 1992)
Not a public good. Some informational value, but not in executable form.
No value obtained by possessor from initial copy unless additional copy or
So need license of CO’s exclusive reproduction right unless provided by statute
Product of electronic age. Easy to make additional copies and thereby get full value for others
Additional copies not always necessary to obtain full value, so number of copies not necessarily a measure of value obtained
Much copyright law relating to computer software reflects this mismatch between
traditional purpose of copyright law and purpose of computer software (despite software’s important role in promoting “the Progress of Science” under U.S. Const., Art. I, § 8, cl. 8)