Con Diaz Answers Hard Questions About Software [Video]

By Alan Wong – Is software text? Machine? Or somehow both? In his ISS Noon Lecture on April 18, 2017, assistant professor of science and technology studies Gerardo Con Díaz delved into the legal debates surrounding this ubiquitous element of modern life.

A historian of technology and business, Con Díaz presented his work on the history of software copyright law. He showed how different cultures of software-making have led to different views on what to consider software.

In the mid-1960s, as people began to think about how they might be able to sell it, questions about software came to the attention of businesses and courts. Concerns about piracy led developers to seek copyrights. However, in order to register copyrights for software, software had to be categorized.

Existing categories like books and pamphlets didn't seem to fully capture what software was. In response to questions surrounding copyrights, software, and computers, the Commission on New Technological Uses of Copyrighted Works (CONTU) was established by congress in 1974 to address these issues. From 1974 to 1978, CONTU worked to represent the interests of publishing companies, users, and the general public at large. The work of CONTU, as well as the Copyright Act of 1976, continues to influence how software and computers are considered in legal contexts today.

Part-text, part-machine

IBM, envisioning a future not unlike today’s reality—in which images, text, and other data could be passed between computers—advocated that software should be viewed as texts. Doing so would lead them to enjoy protections similar to those afforded to books, recordings, and other creative works. Programs, after all, are written in languages designed by humans—even if those programs are directed toward machines, they are arguably textual in nature.

This view was challenged by author John Hersey, among others. Hersey argued that viewing software as texts dangerously blurred what belonged to humans and what belonged to machines. Attributing textual status to software was dehumanizing, he argued, and software was profoundly different in nature from other texts already protected by copyright law. Since software requires machines to run, it at least possesses some sort of hybrid machine-text nature. While words may be present in programs, programs were part- machine in that they needed to be fitted into some machine-readable medium in order to run.

Eventually, CONTU commissioners came to embrace at least the partial textual nature of software. Copyright law currently states: “A ‘computer program’ is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” 

Con Díaz's research addresses important questions about our (human) relationship with technology, which grows more relevant every day as computing becomes increasingly widespread. His research reveals vision and foresight on the part of both lawmakers and technology developers in anticipating the great potential—and accompanying challenges—that come with making software an integral part of our lives.

Watch the full lecture in the video below:

 Learn more about Gerardo Con Díaz.