Software written by software – for real this time
April 16, 2010
In earlier posts on this blog, I have written about who owns software written by software. It is my position that such “Written Code” falls outside the protection of copyright.
This is because the Written Code is generated by Writing Software, without human intervention on the actual choice of code used to express the functionality.
Human intervention is limited to instructing the Writing Software on the details of the functionality (the Specs).
Under copyright, only the actual Written Code could be protectable, not the functionality described in the Specs.
And since the actual Written Code is not written by a human being, and there is no human creativity involved in generating the Written Code, there is no copyright. The fact that there may be creativity involved in providing the instructions to the Writing Software, is irrelevant in respect of the Written Code.
It’s applying the distinction between an idea and its expression.
This week, I was asked by a client to review the licensing model of a software product.
It turned out that the client/provider was also offering a license to a development tool to its end-users. This tool enables the end-user to create additional functionality to an existing product (which must already be licensed from the client/provider).
An end-user challenged the IP ownership of such additional functionality to be created by the tool, and wanted to own the IP (rather than the client/provider, who standard claims IP on any functionality created by the tool, even when such functionality is created by end-users using the tool licensed by them from the client/provider).
However, according to my theory on who owns software written by software, the question is moot from a copyright point of view. Nobody owns copyright in the functionality created by the tool , because there is no copyright. Such functionality is expressed through Written Code, i.e. created by artificial intelligence.
Besides, it would be unreasonable for the end-user to ask for a monopoly on additional functionality, added to a standard product. Copyright does not cover functionality in software, it can cover only the code through which functionality is expressed (if such code is written by a human being).
By analogy, you cannot claim a monopoly (IP rights) on a specific macro you’ve written in Excel – anybody can recreate such macro.
So far, so good (although the end-user may turn out to be unhappy about this).
But what happens when the client/provider starts to use this tool exclusively in the development of a whole new application? Does that mean that such application cannot be licensed under copyright?
Well, yes.
I wonder how many software companies out there are licensing stuff that has no copyright protection?
