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by working in isolation [
8
]. We see this today in the software development industry
among communities of programmers, where software code is commonly shared and
reused.
Current intellectual property law attempts to find a balance between the com-
peting goals of innovation, commercial interest and public welfare. Whether they
succeed is a matter of much debate and hyperbole. Some argue that the protections
afforded commercial interests in innovation outweigh concerns for public welfare
and that there is a need to reform the law. The other side of the argument is that
the digital age has made it all too easy for people to “steal” intellectual property and
the laws need to be reformed to better protect innovators.
Our aim in this chapter is to look at the impact of intellectual property law on
current and future software development practices. As software engineers, we have
a particular interest in ensuring that as much source code as possible be available for
remix, reuse, consultation, or examination. Our goal is not to evaluate current law
per se, but to consider the impact of current law on future software development.
Our presentation of issues centers on thought experiments, because they are one
of the few feasible ways to critique common law. In this legal tradition, present in
English-speaking countries around the world including the United States, law is not
fully interpreted until a case appears before a judge and is decided. Therefore, it is
difficult to know anything for certain without a court case, so instead we use thought
experiments as the basis for hypothetical discussion.
We present four thought experiments on different types of source code remix-
ing and reuse: copy and paste programming, reusing components, reusing a user
interface idiom, and undisclosed software development. The specific scenarios in
the thought experiments are based in data that we collected in a previous empirical
study on how software developers search the web (see Chap.
3
in this volume). We
use these scenarios to explain various legal concepts, such as copyright, patents, and
licensing, and to explore how they might affect source code reuse and remix in the
future.
Finally, it is important to note that nothing in this article is legal advice. We are
not lawyers and we are not your lawyers. This discussion is meant to encourage
analysis of the legal issues surrounding code retrieval on the web.
16.2 Background: Common Law
The thought experiments in this chapter will be based on U.S. intellectual property
law. We are using this set of laws for two reasons. IP law is a live issue before
legislative and judicial bodies, thus providing a means to take the pulse of current
thinking and opinion on the topic. The U.S. has a strong influence on IP law else-
where in the world through the World Trade Organization, because membership is
achieved in part by meeting minimum standards in a variety of areas, one of them
being IP protection.
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