From Idea to Action : Toward a Unified Theory of Software and the Law

A methodology is proposed for determining how particular areas 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) "How are such differences legally relevant?," and (4) "How should the law treat software in light of such differences?" Application of the first half of this methodology reveals that computer programs have the unique quality of being human-readable and computer-executable instructions that describe actions in purely logical terms. Application of the second half of this methodology to patent law and the First Amendment to the U.S. Constitution reveals that software's unique features violate the law's assumptions, leading to results that are at odds with the underlying public policies in each case. Recommendations are made for modifying the legal rules in both areas, and in the law more generally, to resolve these problems