Software code can indeed be copyrighted. It falls into the category of “literary work,” which the Copyright Act defines as a work expressed in words, numbers, or other verbal or numerical symbols. This was confirmed in the Apple Computer, Inc. v. Franklin Computer Corp. case in 1983, where the defendant was found to have wrongly copied Apple’s binary code for its operating system. It does not matter how simple or complicated the code is, or whether it’s for an OS or an app or any other process—that code is protected.
It is important to note, however, that it is only the raw code itself that is protected by copyright, not the method a programmer uses to instruct a computer via that code. To protect the method, a patent is needed. Copyrights cover the actual “expression” of an idea, but not the idea itself. For example, let’s say I create a simple calculator program that adds up two numbers. I only have a copyright in the specific code I wrote for the program, not the method of adding the two numbers together, nor the method of how I generally instructed the computer to do so. This means that someone else could come along and write a different code that functionally does the same thing, adds together two numbers in the same manner, and they would not be liable for copyright infringement. They would, however, be liable for patent infringement if the functionality was protected, through a patent.
This is not to say that someone who sees your code could then write almost the exact same code, but change a few lines here and there to avoid liability. You would be protected in such a case by the doctrine of nonliteral copying, in the same way that J.K. Rowling would be protected against a person who writes essentially the same story as Harry Potter and the Sorcerer’s Stone while changing the specific language used and the names of characters. No one knows exactly where the line is on nonliteral copying, however. What if someone writes a book about an orphan boy who attends a school where he learns magic, but many things in it occur that are different from the events of Harry Potter and the Sorcerer’s Stone? Depending on the details, you would probably get different answers from different copyright experts. It is similarly hard to say exactly how close one software code’s “architecture” must be to another in order for there to have been copying.
Let’s say some rival programmer does clearly copy your software code, though. What can you do? You would probably like to sue, or at least threaten a lawsuit. Technically, your work is copyrighted the moment you create it and “fix” it into a “tangible medium” (basically, write it down or type it out anywhere). However, this “automatic” copyright has a limited use until you register your work with the Copyright Office. Most importantly, as the Supreme Court held, you can’t actually bring a copyright infringement suit until the copied work is registered! There are other benefits as well. A work must be registered before the infringement by your rival took place in order for you to be eligible to win increased “statutory” damages in court. Registering the work within five years of its creation also creates what is called a presumption of validity, which means that in cases of infringement courts will presume you own a copyright and shift the burden of proving otherwise to the defendant. In other words, lawsuits are easier and more rewarding if your work is registered from the beginning.
So, if you are unable to secure a software patent, the software can still be protected under copyright law. It is therefore well worth registering your work so that you are able to enforce that right.
Zachary Villemez and Stephanie Semler