API Economist: Is the reason why intellectual property and software are so challenging due to the sheer lack of case law that's been established?

Mark Radcliffe: I think that's part of it. But I also think you need to go back a little bit and talk about how software came to be covered by copyright. If you go back to the 1980s, there were very respectable intellectual property lawyers who would tell you that software was not copyrightable because it was a functional “work”.  Only certain types of software would be copyrightable. Moreover, when the Copyright Act of 1976 was enacted, Congress deferred the decision about protecting software under copyright until they received a report from a special committee, the National Commission on New Technological Uses of Copyrighted Works (CONTU). Although CONTU recommended protection for software under copyright, one commissioner suggested that copyright not apply to “computer program in the form in which it is capable of being used to control computer operations.”  Now the courts have made it very clear that software is protected by copyright, in fact almost any form of software is copyrightable. But copyright is actually a pretty poor fit for software. It's a poor fit because there's a large degree of functionality in software. Copyright was designed for music and literature and novels, things where you'd have immense scope in the choice of how you create the “work”.