What is Copywritable in Software?

Authors

• Charles DuanFollow

Comments

For five decades, copyright law has been internally inconsistent. Computer code receives copyright protection—the statute says so. But the statute also excludes methods of operation from copyright. Given that computer code is a method of operating a computer, these two blackletter doctrines contradict each other. To avoid this doctrinal conflict, courts and commentators have for years controversially disregarded or at least bent one of the doctrines. The Supreme Court has twice ducked the issue as too difficult to resolve, most recently in the 2021 Google v. Oracle case, and the circuits continue to be split. Yet there is a simple solution. Computer science concepts, heretofore not explored in the legal literature, show that software contains numerous elements with no effect on a computer’s operation: comments, syntactic alternatives, bound variable names, and ordering of variable declarations and subroutines. These elements instead serve a purely communicative purpose, helping other humans understand computer code. Computer scientists have long valued these communicative elements as vehicles for expression.

Communicative elements in code reconcile the doctrines, fully satisfying the exclusion of methods of operation while nevertheless providing a basis for copyright protection in software. And they are the strongest basis for copyright in computer code. Protection based on these elements is consistent with copyright rationales and doctrines. It offers a solid foundation for answering the trickiest questions in software copyright law, including application programming interfaces and generative artificial intelligence. And it would resolve, after half a century, the internal contradiction in the Copyright Act.

Repository Citation

Charles Duan, What is Copywritable in Software?, 94 GEORGE WASHINGTON L. REV (2025).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/2336