Exclusive Ownership of Software

-- By LinusKatzenbach - 25 Oct 2024

Introduction

Software is the defining feature of technological progress and skyrocketing productivity in today’s Internet Society. Therefore, the question is not if software should be subject to legal regulation but rather how these rules and standards are best designed. Although this being a normative question as legal regulation is rarely a question of right or wrong but of morals and ideology, due to the technological nature of software, these circumstances have to be considered as well.

When thinking about “Software Law”, I would expect the reader to first have a variety of specific pieces of regulation come to mind (to give a rather recent example, the approaches by the European Union to hold platform provider accountable for misconduct by their users through the Digital Services Act) that only became necessary because of certain issues (or characteristics as a more neutral description) that software poses to our modern society requiring legal solutions that haven’t been developed before.

But the advent of software also challenges as to re-think well delevoped and thought-out legal concepts that have stood for centuries and might not be able to properly grasp the individualities of software as subject of legal regulation. Hence, it proves difficult to assess wherever these concepts and rules need to be modified for they would be impractical when used in the realm of software.

This essay aims to address this question having at hand what may be the most fundamental of these old concepts (at least in the field of private law, here understood as the law governing the legal relationship between natural or legal persons as private entities): property. It is not a characteristic of American Law but inherent to all (at least Western, to not need to argue about the capitalistic-centered works view this writer may or may not have) legal systems, to possess rules attributing rights to a person being in possession of an object allowing him to do it or do not do with that object what he pleases, including, only consequentially, excluding others from their access to this very object, may it be altogether or depending on their willingness of adhering to certain demands, such as the payment of money.

While this exclusion proves itself practical when applied to material objects, the introduction of the legal concepts of patents and copyrights became necessary to continue using this property-focused structure in regards to immaterial, or “intellectual” property like logos and trademarks. While these concepts are practically closer to being able to be applied to software, these structural similarities don’t provide justification to do exactly that.

Admittedly, software shares with with traditional patents and copyrights the characteristic that it is built upon public accessible information. Whereas, example given, a logo is made up of lines, colors and geometric shapes, software consists of code in some programming language that is no one’s property but available for anyone to use. There can also be brought forward the argument that both are the product of some creative or thought-and-time-consuming process, which may justify protection by certain rights of property. On the other hand, software is never the end product. Unlike a logo or a song that is made to be looked at or to be listened to, in any way consumed, software is merely, or maybe more so, a tool for others, To bolster others productivity, to allow for their own creative process, or just to ease everyday life by enabling communication, navigation, or food delivery.

These arguments point out that the question at hand is not an easy one. Software is a phenomenon of its own and does not fit into previously existing categories. Therefore, it is time to examine the points that can be made in favor and against property-like protection of software.

Arguments against such a protection

First, software thrives on collective knowledge and shared expertise. No program is perfect or ever-finished, and open-source software, which allows multiple contributors to collaborate and improve upon existing projects, has demonstrated the power of shared effort. The treatment of software as property can create barriers to such a collaboration and sharing amongst developers and, therefore, may stand in the way of technological progress and the creation of robust and adaptable software solutions.

Second, given the vital role of software in almost every realm of modern life, limited access to technology can severely impact one’s personal and professional development. If essential software is too expensive and therefore inaccessible to certain individuals or communities, the following lack of access to educational opportunities, job prospects, and overall participation in the digital economy, can increase existing inequalities. Instead, open access to software could level the playing field, allowing each and every individual to benefit from technological progress.

Arguments in favor of such a protection

It was already laid out that software is never perfect, and that with ongoing use, ongoing patchwork is necessary in order to maintain a high quality of user experience. Exclusive ownership attributes the program’s responsibility to the owner. Free software, on the other hand, might be copied at any stage of development, or modified in any way, without the user being aware posing a threat to the security of his private information or the integrity of his hardware.

Furthermore, developing software is a costly process that might only be worth pursuing if there is an incentive to do so. While with open access there is no money to be earned, the model of exclusive ownership provides clear rewards that make the investment of time, effort, and resources worth it. Exclusive ownership, therefore, is fundamental for encouraging innovation within the software industry.

Conclusion

In summary, exclusive ownership of software can be credited with incentivizing innovation and ensure quality maintenance, while also limiting productive collaboration, and equal and broad access. Balancing these factors is essential for fostering a thriving technological landscape.