Poetry in motion

Copyright and software are on a collision course. But perhaps in a way that is different from the current debates of piracy and fair use.

Copyright is an old notion. It goes back to the US constitution (1787) and the Statute of Anne (1709) and earlier, according to wikipedia.

Copyright makes the fundamental assumption of a fixed work. The US constitution limited copyright protection to books, maps, and charts. (Later acts extended copyright protection to phonograph recordings, painting, photographs, and software.)

In engineering, Statics is the study of non-moving things (such as buildings) and Dynamics is the study of moving objects (such as wheels on a car). Both are important. We want buildings to stand in place and cars to move.

In short, copyright law (and the mindset of copyright) is Statics, but software (and soon music, movies, videos, and e-books) is Dynamics.

The strict division between "fixed" and "moving" fails for software. Software doesn't move in the Newtonian sense -- it doesn't fly through the air or roll down inclines -- but it is not fixed in the same way a book is a fixed work. Once the ink is on the page and the pages bound, the book is a finished work. The same holds for maps, charts, phonograph recordings, photographs, and paintings.

Software is more fluid. Programs are never "finished"; there is always a change remaining, some defect to fix or feature to add.

Software changes. Suppliers issue updates. Microsoft issues monthly updates to Windows and its other products. Linux distros send out updates weekly. (To be fair, the updates are usually for a small fraction of the thousands of programs in a typical distro.)

Software is not a fixed work. If we assign a copyright term from the work's inception, when do we start counting for software? When does the copyright for Windows XP start (and by extension, when does it end)? We could pick an arbitrary date in early 2001 when Windows XP was initially released, but then what about Windows XP SP1? Should that receive its own copyright term?

We need some form of protection for software, some form of recognition of ownership and ownership rights. But the idea of copyright of a fixed work is a poor match for software. Instead of the firm block of stone we have a slushy pile of changing code.