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Code as Embedded Speech, Machine, and Service

What is code and how should it be governed? This article frames the question by considering the various forms of governance currently applied to code: copyright, patents, embedded speech, and trade secrets. The current governance models imply that code is a service, a document, and a machine. True, physical materials can be arranged to be all of these things, yet there is little legal difficulty in distinguishing which model is appropriately used for which item. Thus the mental models of code and of different types of underlying the legal definitions of code are confused. Thus, we being our work by describing both code and the protection modes which can be used for code (at a high level, of course). Then, in the context of both recent court decisions and private contractual models for code, we work to fit code in the context of the governance frameworks. We conclude with an overarching theory of code which argues for the continuation of all the models of protection, yet offers a manner of distinguishing which models should be applied to which instantiations of code. In short, we conclude that source code should best be governed as a form of speech and object code should be treated as a class of machine. We conclude that customer code sold to one customer treated as a professional service, possibly with requirements for source availability.