Sonali Maitra (Stanford Law School) has posted Code Without Copyright on SSRN. Here is the abstract:
Congress should remove computer programs from copyrightable subject matter. Code entered the statute in 1980 on a flawed justification, and four decades of case law have hollowed the protection to a residue courts can barely administer. AI code generation finishes the job: a dominant share of new code now has no author and no copyright, and it’s very hard to tell which lines those are. This Article makes the affirmative case for withdrawal — a prospective statute with a wind-down that converts legacy copyrights from a property rule to a liability rule, and for a temporary period only. This design has precedent; software development’s incentives never ran through copyright’s exclusive rights anyway; open source survives (and is better served); Congress has the power; and the takings objection fails on copyright’s own history.
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