Yale grad student discusses changing definition of software

Julianne Hodges

The controversial dispute between Apple and the FBI has been in the news a lot lately. However, technology and the law usually co-develop peacefully.

Technology historian Gerardo Con Diaz spoke about the development of software copyright law last Thursday morning at the UT School of Information.

Con Diaz is a Yale University graduate student who is writing a dissertation that focuses on the history of software patenting. In the discussion at UT, Con Diaz presented themes from his dissertation, called “Intangible Inventions.” One of these themes was the coevolution of legislature and technology.

For example, Con Diaz talked about how the history of software in the ’70s influenced laws for years to come. When programmers first started registering their software, lawmakers were unsure of how to classify it. The National Commission on New Technological Uses, or CONTU, was a 1974 advisory commission tasked with determining how copyright should protect software.

CONTU had to choose between three different ways of thinking about software: as lines of code, as a machine or as a completely new type of intellectual property that combined the properties of a text and a machine, according to Con Diaz.  

“CONTU’s mandate to choose one of them entangled firms, judges, lawyers, programmers and trade associations,” he said. “In the process, the commissioners laid the foundations for the copyright regime that governs software copyright today.”

The commission eventually decided that copyright laws should protect the lines of code that compose software, not necessarily the software’s output. 

Recently, copyright law has resurfaced in a lawsuit between Google and Oracle, the owner of Java. Google’s use of Java on Android phones brought up the issue of fair use, according to Con Diaz. 

He said the history of CONTU can guide current scientists and lawyers on how law and technology influence each other.

“This is actually a story about technology and society,” Con Diaz said. “It’s a story about how, actually, technology and the law are not separate entities that come and clash together every now and then. It’s a story about how technology and the law actually developed together.”