Computer Software and Copyright
6. Source Code vs. Object Code
Under a strict interpretation of the Constitution, one might think that
only source code can be protected, since only it can be considered a writing.
Object code on the other hand is machine-written and not a direct expression
of the author's work. However, a precedent-setting court case in 1983 established
that object code is protected under copyright law.
Generally, the owner of the source code is also considered the owner
of the object code for purposes of copyright protection. This means that
in cases where only the object code is made available for public use, the
author still retains a copyright over that object code.
7. Applications vs. System Programs
One of the things that underlies copyright law is that the copyrightable
work must be perceivable by human senses. Several courts in early software
cases argued that system programs and background programs, by their very
nature, were not perceptible to human senses and, therefore, were not copyrightable.
However, a programmer can print out the source code of any program,
whether it has a user interface or not, and perceive it. It is this embodiment
of the program that qualifies for copyright protection, not any user output
or display. More recent court cases have established that the distinction
between applications and system programs is illusory for the purposes of
copyright and that system programs are also protected by copyright law.
Microcode, which in this context is a series of transistor activation
instructions to a microprocessor based upon directions from a macroinstruction
set, is also copyrightable under this rationale.
* Written by John E. Wehrli, formerly of the Patent Department, Lawrence Berkeley
National Laboratory. Available as LBL Report No. 38995.
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