1.  In 1978, it was unclear whether "software" or computer programs would qualify for copyright protection.  In that year the Commission on New Technological Uses of Copyrighted Works, called the "CONTU Commission" for short, issued its Final Report, recommending copyright protection for computer programs.

In a famous dissent, Commissioner John Hersey disagreed with the Commission's recommendation.  He argued that computer programs were just parts of machines and should not be given equal dignity with works of literature and music.  As parts of machines, he argued, computer programs are not designed to communicate with people and therefore are not proper objects of copyright protection.

The majority of the CONTU Commissioners disagreed with Commissioner Hersey and supported the Commission's recommendation.  In 1980, Congress implemented that recommendation by adopting the Software Copyright Amendments of 1980, Pub. L. No. 96-517, § 10, 94 Stat. 3015, 3028-3029 (Dec. 12, 1980), codified at 17 U.S.C. 101, 117.  The amendments made clear that computer programs are proper subjects of copyright protection by, among other things, adding a definition of "computer program" to Section 101 of the Copyright Act of 1976, 17 U.S.C. § 101.  ("A ‘computer program' is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.")

2.  Even before its amendment, the Copyright Act of 1976 suggested that direct communication to people is not a requirement of copyright protection.  The statute defined and still defines "copies" as "material objects . . . in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."  17 U.S.C.  101 (definition of "copies").

The statute's definition of "literary works" also seemed to accommodate software.  It read and still reads as follows:

"‘Literary works' are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied."

17 U.S.C.  101 (definition of "literary works").

Does either of these definitions suggest that copyrighted works must be immediately intelligible to or legible by people?  Do any words in these definitions suggest the contrary?  Does either definition appear to exclude computer programs?

3.  As a result of these and other statutory provisions, plus the 1980 amendments, virtually every court that has addressed the issue has rejected Commissioner Hersey's argument and has held that computer programs are proper objects of copyright protection whether or not they are directly intelligible.  In other words, software need not "speak" to people in order to merit copyright protection.

The Corley decision, however, raises a related but very different question: if software is not just a part of a machine as Commissioner Hersey argued, is it then "speech" eligible for First Amendment protection?  Does the history of copyright protection for software necessarily imply that software is "speech"?


4.  A general answer may be elusive, in part because the word "software" is so expansive.  Some use the term to refer to any digitized information, including digitized text, photos, film, movies and music.  Surely a politician's oration is none the less "speech" although it is converted into and stored in digital form.

Others, however, use the term "software" more restrictively, as meaning "computer programs" and related utilitarian things. Yet even in this more restrictive meaning software can take several forms.  "Source code" is a form of computer programs written in higher-level languages (such as FORTRAN, COBOL, BASIC, C or C++).  It is directly intelligible to trained programmers and indeed is intended to be so.  Yet it can also be "read" by machines using other computer programs, called "compilers" or "interpreters," which convert it into binary form for execution by machines.  Thus "source code" is both human-readable and machine-readable.  A very simple example of source code is the following program, in the BASIC language, which adds two and two and prints out the result:

A = 2
B = 2
C = A + B
PRINT C

Although trained programmers can, in theory, read object or binary code, doing so is a bit like deciphering the Rosetta stone.  (Unless one knows—or until one determines by trial and error—how long the binary "words" or instructions are, one does not even know where to divide the block into separate instructions to begin the translation.)  In addition, there is no one-to-one correspondence between the instructions in binary code and the instructions in source code, because many of the instructions in source code must be broken down into smaller "baby steps" before being translated into machine language.  No one offered a more efficient alternative would ever voluntraily attempt to read binary code by eye.

As the foregoing examples show, source code and binary code look vastly different when printed out.  Source code is immediately intelligible to trained programmers; binary code can be deciphered only with great difficulty and labor, or by the use of machines.  Yet both contain virtually the same information and expression.

Just as Tolstoy's War and Peace may be unintelligible to an American reader in its native Russian, the Russian version contains the same "pattern" of expression as the English translation.  So undecipherable binary code compiled from source code may seem just another side of the same coin.  In other words, if a politician's address is still "speech" when converted into binary form, why not also the source code of a computer program when converted into binary or object code?


6.  There are many difficulties with the conclusion that binary program code is equivalent to translated or digitized text.  Among other things, digitized text is a direct character-by-character translation of individual letters and punctuation into their numerical equivalents, which translation is easily reversible.  (For example, the capital letter "B" is represented in computers as the decimal number "66," the equivalent hexadecimal number "42," or the equivalent binary number "1000010.")  In constrast, translating source code into binary code requires a complex process of: (1) distilling the conceptual mathematical or storage operations represented symbolically by source code into "baby steps" that can be expressed in lower-level languages; (2) writing the commands to execute those "baby steps" in the lower-level languages; and (3) translating the resulting lower-level commands into their binary equivalents.  The process is far more complex than character-by-character translation.  Furthermore, it is prone to error and generally irreversible (because attempts to reverse the process do not necessary produce the same source code, but rather different source code with equivalent mathematical effect).  For a more detailed description of the process of converting source to binary program code and its practical effects and consequences, see Jay Dratler, Jr., Cyberlaw: Intellectual Property in the Digital Millennium § 2.10[3][b][i] (Law Journal Press 2000, updated semiannually).

Another difficulty with the conclusion that binary program code is just like digitized speech is that, unlike digitized speech, binary program code is virtually never intended to communicate with humans.  Rather, it is intended to operate machines directly.  Most computer software vendors market computer programs only in the form of binary executable code precisely because they are difficult to understand and modify in that form.  Several courts have suggested that the difficulty of "reverse engineering" binary executable code is sufficient to provide a measure of trade-secret protection for algorithms and programming techniques buried in the code.  Moreover, if hackers like Corley use binary code to distribute their decryption tools, they probably do so partly in order to make it more difficult for the authorities and the vendors of encryption devices to decipher the operation of their computer programs and thereby defeat them or trace their origins.  In other words, people most often distribute binary program code, as distinguished from source code, precisely because they do not wish to communicate.  How should these considerations affect the First-Amendment protection given binary executable code?

7.  For copyright purposes, focusing on the medium or form of recording expression is perilous, because Congress wrote the Copyright Act of 1976 to make copyright protection independent of the media and technologies used.  This "technology-independent" approach was one of the chief advantages of the 1976 Act over previous versions of copyright law.  The statute implements this approach by referring repeatedly to media and recording techniques "now known or later developed" in many of the statutory definitions.  See, e.g., 17 U.S.C. § 101 (definitions of "copies" and "phonorecords"), 17 U.S.C. § 102(a) (fundamental provision for copyright protection).

Congress did not want to have to amend the copyright statute every time a new recording technology emerged.  If it had, over nine new copyright statutes would have been necessary during the twentieth century for music alone, for there were at least nine generations of music recording technology (wax cylinders, plastic disks, wire, tape reels, tape cassettes, magnetic disks, CDs, RW-CD-ROMs and MP3 files).

Thus, copyright protection does not depend upon the mode or medium or recording, i.e., upon whether the "software" is recorded as source or object code.  

8.  But does it follow that all recorded expression, including all "software," merits equal protection as "speech" under the First Amendment?  All of the following might be categorized as "software," but do all deserve the same level of First Amendment protection?

a.   A digitized database contained the freezing and boiling points, in degrees centigrade, of all known compounds of the element calcium.

b.  A digitized audiovisual clip of The Reverend Martin Luther King's "I Have a Dream" speech.

c.   The "public key" for an encryption code, i.e., a long binary number, published on the Web, that can be used with a corresponding "private key" to decrypt encrypted matter using a particular computer program.

d.   The "private key" corresponding to the "public key" in point (c) above.

e.   A computer operating system, i.e., a basic computer program that moves data between a computer's central processing unit (usually a microprocessor) and "peripheral" devices like the keyboard, disk drive, display screen, loudspeakers, etc.

f.   A computer program that seeks to "break" encryption codes without using the published or private keys.

g.   A computer program that analyzes explosions of nuclear weapons in order to determine how to design and maintain them.

Should regulation of software be subject to the same kind of "strict scrutiny" that applies to political speech?  Should the answer depend upon the form of the software, i.e., whether it constitutes readable source code or undecipherable (except with great difficulty) binary program code intended to operate machines?  Or should some regulation of software be treated as a "time, place and manner" restriction that does not impact expressive content?  Should software be viewed as just another variety of "commercial speech," which some believe deserves less protection than political speech, or should it be viewed as sui generis?


12.  Are computer programs, properly defined, technology or speech?  Does that depend upon their form, i.e., as source or binary code?  Was the Second Circuit too solicitous of the alleged expressive aspects of computer programs, even in the form of binary program code intended for no purpose other than to operate machines?  Or is the court's fastidious analysis necessary to protect our fundamental rights in the digital age?  Is object code or binary program code a communications medium or a functional part of machines?