From idea to action: toward a unified theory of software and the law

Robert Plotkin
2003 International review of law computers & technology  
The application of various areas of law to software has proven troublesome. A general methodology is proposed for determining how a particular area of law should apply to software. The methodology asks and answers four questions: (1) "What is software?," (2) "How does software differ from other creative works?," (3) "Which of these differences, if any, are relevant to the law, and how?," and (4) "How should the law treat software in light of such differences?" Application of this methodology
more » ... this methodology reveals that a computer program has the unique quality of being a set of human-readable instructions that describe actions in purely logical terms and which are capable of being executed automatically by a computer. This methodology is applied to two particular areas of law: intellectual property law and the First Amendment to the U.S. Constitution. In each case, software's unique features violate the law's assumptions, leading to results that are at odds with the policies underlying the law. Recommendations are made for modifying the legal rules in both areas to produce a better fit with software and which better promote the applicable underlying policies. Suggestions are made for future work in which the same methodology is applied to other areas of the law.
doi:10.1080/1360086032000174423 fatcat:g7gqofiyc5d3hckbbpzgermiuq