Who Authored the Spec? Evidence for the Line-Drawing Case Thaler Left Open

Draft. An autonomous pipeline reads a GitHub issue, investigates the codebase, writes a fix, and the maintainer merges it. Who authored the fix? Courts and the Copyright Office keep asking who authored the code, and that question is asked one layer too low. Since Apple v. Franklin, object code has been protected as the same literary work as the source it was compiled from, and no one asks whether the compiler authored the binary; the same analysis belongs one layer up, at the specification a coding agent executed. The idea/expression line does the first half of the work. A prompt conveys an idea, which §102(b) excludes; a spec whose selection of constraints was unforced is expression under Feist. What decides the remaining cases, where the input sits between prompt and spec, is evidence rather than a new doctrine: a dated record of the investigation that produced the change, listing each alternative raised, the test that killed it, and the selection that survived. A shallow record shows the problem statement dictated the fix, so its writer is the author and the pipeline is a camera. A deep record shows the selection happened in the investigation, and shows who made it; where the selections were a machine’s own, Thaler’s rule leaves them authorless. One pipeline, the author’s, has published 184 such records. Burrow-Giles decided photography on exactly this kind of record in 1884 and declined to decide anything more. The line-drawing case that Thaler expressly left open will be decided the same way: on a record of who chose what.

1. The Wrong Question

In March 2026 the Supreme Court denied certiorari in Thaler v. Perlmutter, leaving in place the D.C. Circuit’s holding that “the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being.” Read the headlines and AI authorship sounds settled. Read the opinion and almost nothing is. Dr. Thaler listed his machine as the work’s sole author, so the court decided only that a machine cannot be an author. It said so twice, in terms that matter here: the human authorship requirement “does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence,” and “line-drawing disagreements over how much artificial intelligence contributed to a particular human author’s work are neither here nor there in this case.”

The line-drawing case is the one that matters, because it describes most software now being written. An autonomous pipeline reads a GitHub issue, forms hypotheses about the failure, tests them against the codebase, discards the ones the evidence kills, implements the survivor, and opens a pull request. The code passes CI. The maintainer merges. The commentary converges on one question about that scenario. Techdirt argues AI-generated code has no copyright at all; Vorys warns that vibe coding hollows out open-source licensing; Bloomberg Law walks firms through how tricky protection has become. All of it asks who authored the code.

The nearest thing to an answer dates from 1983, for a different machine. In Apple Computer v. Franklin, Franklin argued that copyright protected human-readable source code and stopped at machine-generated object code. The Third Circuit found “no basis in the statute for any such concern” and held that “a computer program, whether in object code or source code, is a ‘literary work’ and is protected from unauthorized copying, whether from its object or source code version.” That is a subject-matter holding, and I will not pretend it decided authorship. What it ratified is a practice with an authorship assumption built in: source and object code are the same work (the opinion approvingly cites a case holding the object code version of registered source code “is the same work and protected”), and one work has one set of authors. I have found no case in the forty years since that asks whether a compiler authored anything. The assumption stays invisible because compilation is deterministic; the binary contains no choice the source did not dictate, so there is no authorship left over to ask about. The expressive act sits upstream, and every analysis goes there without noticing that it moved.

A coding agent executing a specification extends that chain by one link, and the extension is weaker than the original at a specific joint. A compiler produces the same output from the same source, every time; an agent is probabilistic, and two runs on the same spec can produce different code. But how different is a function of the prose. The more the specification determines (the interface typed, the acceptance test written, the approach fixed), the less remains for the machine to choose. Bit-identical reruns are not something today’s inference stacks reliably offer, and the argument does not need them. It needs the split: whatever the spec determined is invariant across runs and traces to the spec’s author, and whatever varies run to run is exactly the residue no spec-writer can claim. In practice the determined set is smaller than spec-writers believe; a spec I thought was tight was corrected twenty times by its implementation, and §6 puts that record on the table. For the determined set, whatever its size, the authorship question lands where Franklin’s practice put it: upstream. Who authored the spec?

I write software, not briefs. Every case discussed here is quoted from the primary opinion, and the verification trail is described in the disclosure at the end. The essay’s authority is the doctrine cited and the artifacts linked, and the reader should discount it exactly as much as that warrants.

2. Prompts and Specs

The upstream question splits into two that the current debate blurs, and the first one is easy.

Is the specification itself protectable expression? This requires no AI doctrine at all. A spec is a text a human wrote; it is analyzed as a literary work under principles that predate the transistor. Section 102(b) draws the floor: no protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery.” A prompt sits below that floor. “Make me a website” conveys a desire; so does “fix the crash on save.” The Copyright Office’s January 2025 report on copyrightability says this in one sentence: “Prompts essentially function as instructions that convey unprotectible ideas.”

Feist v. Rural Telephone draws the ceiling, and it is low. Originality requires only independent creation “plus a modicum of creativity,” and that creativity can live entirely in how unprotectable elements are combined: “choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original” for protection. A specification is a selection-and-arrangement work in exactly Feist’s sense. An engineering spec that commits to power-diagram auction scoring, TEE-attested privacy, one-shot billing, and a single-toggle publisher interface combines four elements nothing forced together. Each element alone is an unprotectable idea. The selection is where the author shows up.

So the doctrinal line between “prompt” and “spec” is the line between an instruction that conveys an idea and a text whose arrangement of constraints reflects unforced choices. Courts have drawn that line for two centuries. Nothing about AI moves it.

The second question is the open one: does the agent’s output carry the spec’s authorship into the code? Here the Copyright Office’s report is routinely overread in both directions. Its objection to prompt-based authorship is about control over execution, and it is explicit that the objection is technological rather than conceptual: “While highly detailed prompts could contain the user’s desired expressive elements, at present they do not control how the AI system processes them in generating the output,” and “there may come a time when prompts can sufficiently control expressive elements in AI-generated outputs to reflect human authorship.” The report does not hold that a detailed specification is an idea. It holds that today’s systems execute loosely. That is a claim about compilers, and it is the kind of claim that engineering practice falsifies on a schedule: acceptance tests, typed interfaces, and CI gates exist to force an implementation to match a specification. Two distinct questions then hang downstream, and they should not be blurred into each other. Whether the code is a derivative work of the spec (“a work based upon one or more preexisting works, such as a translation… or any other form in which a work may be recast, transformed, or adapted”) is a permission question: it governs who must license whom, and no court has answered it. Who authored the code is a separate question, and derivative status would not settle it; a screenplay is a derivative work of the novel it adapts, and its author is still the screenwriter. This essay is about the authorship question. It does not predict the answer. It argues where the analysis lives and what evidence will decide it.

3. The Camera

The Supreme Court has faced the machine-authorship question once before, and what it did then is a better guide than anything decided since. In Burrow-Giles v. Sarony (1884), a lithographer who had copied Napoleon Sarony’s photograph of Oscar Wilde argued that a photograph is “the mere mechanical reproduction of the physical features or outlines of some object,” with “no place for novelty, invention, or originality” beyond the manual operation of the device.

The Court’s response repays close reading. It did not declare photography creative. It said of the ordinary photograph: “This may be true in regard to the ordinary production of a photograph, and that in such case a copyright is no protection. On the question as thus stated we decide nothing.” Then it decided the case on the record before it, quoting the trial findings that Sarony produced the picture “entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression.” Those findings, the Court held, “show this photograph to be an original work of art, the product of plaintiff’s intellectual invention.”

Three features of that holding transfer directly to the pipeline scenario. First, authorship attached to the documented choices upstream of the mechanical step, and the mechanical step did not dilute it. Second, the Court refused a categorical rule for the technology and made the outcome turn on the specific work’s record; the “ordinary” photograph was left undecided, a gradient built into the doctrine from its first machine case. Third, the win was evidentiary. Sarony prevailed because findings of fact enumerated his creative decisions one by one. Feist later quoted Burrow-Giles for the standard a claimant must meet: proof of “the existence of… intellectual production, of thought, and conception.” Authorship, in this line of cases, is a thing you prove about a particular work with a record of particular choices.

The issue writer whose spec-grade bug report fully determines the fix is Sarony. The pipeline is the camera. And the two-sentence problem report (“it crashes when I click save”) is the ordinary photograph, the case Burrow-Giles pointedly declined to decide.

When more than one contributor has a plausible claim, that too has standing doctrine, and it points the same direction. Section 101 defines a joint work as one “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,” and Aalmuhammed v. Lee (9th Cir. 2000), the leading case on sorting contributors, took its test straight from Burrow-Giles: an author “superintend[s]” the work, is “the inventive or master mind” who “creates, or gives effect to the idea”; “a creative contribution does not suffice to establish authorship,” and “absence of control is strong evidence of the absence of co-authorship.” Oscar Wilde posed, and, the court noted, “doubtless offered some creative advice”; the photographer was still the author. Run that machinery on the pipeline scenario and it simplifies things. The machine cannot be a joint author; Thaler forecloses it. The issue writer and the pipeline’s operator rarely, if ever, document a shared intent to co-author (no issue tracker I have seen carries a Gilbert-and-Sullivan credit), so the joint-work route closes too. What remains is the Burrow-Giles inquiry, singular and evidentiary: which contributor, if any, superintended the selections. The Copyright Office already speaks this dialect; Zarya of the Dawn asked whether the Midjourney user could “be treated as the ‘master mind’” behind the images, quoting the same standard. Who controlled the selections is a fact. Facts want records.

4. The Counter-Cases

An honest version of this argument has to state the strongest cases against it, because they are strong, and because the property that makes a specification compilable is the very property they target.

Lotus v. Borland (1st Cir. 1995) held the Lotus 1-2-3 menu command hierarchy uncopyrightable as a “method of operation” under §102(b), and it did so over an express finding of creative choice: “The fact that Lotus developers could have designed the Lotus menu command hierarchy differently is immaterial to the question of whether it is a ‘method of operation.’” Expressive choices in naming and arranging the commands “do not magically change the uncopyrightable menu command hierarchy into copyrightable subject matter.” Aim that reasoning at a specification and it bites hard. A spec precise enough for an agent to execute is, on one reading, a method for operating the agent; the tighter it constrains the machine, the more it resembles the thing Lotus excluded, and Lotus has already said that the existence of alternatives does not save it. The holding’s reach is limited (the Supreme Court affirmed by an equally divided Court, so it binds only the First Circuit, and the Federal Circuit in Oracle v. Google declined to follow it, noting that “no other circuit has adopted the First Circuit’s ‘method of operation’ analysis,” a dispute the Supreme Court then resolved on fair use without touching copyrightability). But limited is not overruled. A spec-authorship case filed in Boston meets Lotus at the door.

Computer Associates v. Altai (2d Cir. 1992) supplies the second counter-case. Before comparing two programs, a court must filter out everything unprotectable: elements “dictated by considerations of efficiency,” elements “required by factors external to the program itself” (the court enumerates mechanical specifications, compatibility requirements, manufacturers’ design standards, industry demands, and accepted programming practice), and elements from the public domain. Only then does it ask what remains, and the court’s own phrasing concedes the answer can be nothing: “there may remain a core of protectable expression.” Run a specification through that filter and much of it drains away. The mutex in the bugfix spec is dictated by the concurrency semantics of the platform. The API shape is dictated by compatibility. The acceptance test restates the bug. Altai also carries the merger doctrine within it, citing Baker v. Selden and Morrissey v. Procter & Gamble: “when there is essentially only one way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression.” A spec for a narrow fix, in a codebase whose conventions dictate the form, can merge with the fix itself.

So the counter-cases reduce to this: the more completely a spec determines the implementation, the more it looks like a method of operation, and the more its content was dictated rather than chosen, the thinner the protectable residue after filtration. That is a serious objection, and I decline to wave it away with Feist. What I will point out is what both counter-cases demand to operate. Altai filtration is a per-work factual inquiry into which elements were dictated by external factors and which were free choices. Lotus asks whether a given text functions as the means of operating a machine or as an expressive account of one. Neither inquiry can run without a record of which decisions the problem forced and which the author made among live alternatives. The doctrine that most threatens spec authorship is also the doctrine that most needs the evidence described next.

5. The Record

The record in question is the investigation’s own log, kept as it runs: each candidate explanation of the failure, the test run against it, the evidence that came back, which alternatives died and which survived to become the fix. The pipeline described in §1 commits one such record per investigation, timestamped, alongside the code. One pipeline has published 184 of them. That pipeline is mine, and so is the repository; read the number as an interested party’s proof of concept, and read the standard proposed here with that interest in view. No court has seen such a record either; §8 states how untested the instrument is. What this section argues is a matter of shape: the record answers, item by item, the questions the doctrine already asks.

The record’s depth measures the one quantity every doctrine above turns on: how much selection intervened between the problem statement and the solution.

A shallow record is one candidate explanation, confirmed immediately, fix falling out mechanically. It is a machine-generated finding that the problem statement dictated the solution. Read against Altai, everything in the fix was “required by factors external”: the issue specified the failure, the acceptance criterion, and the approach, and the investigation confirmed; it chose nothing. Authorship of the change, to whatever extent it exists, belongs to the issue writer, whose text did the selecting. The pipeline stands where the camera stood in Burrow-Giles.

A deep record is a fan-out: five candidate explanations, three killed by evidence, one split, the survivor selected between two implementations that both passed the stated criteria, on grounds the issue never mentioned. That record documents unforced selection among live alternatives, which is Feist’s definition of where originality lives. It also documents who selected. When a human directed the investigation, choosing which alternatives to pursue and which implementation to keep, the record is Burrow-Giles’s findings of fact kept contemporaneously: “intellectual production, of thought, and conception,” enumerated and attached to a name. When the pipeline ran autonomously, the same record shows selections no human made, and under Thaler a machine’s unforced choice belongs to no one. A deep autonomous record is evidence against every human claimant in the chain, the issue writer included. An instrument that can return “no author” is the only kind worth building.

This is an evidentiary claim, and it should be measured against how the relevant institutions already reason. The Copyright Office, explaining in Zarya of the Dawn why Midjourney’s user was not the author of its images, wrote that “because of the significant distance between what a user may direct Midjourney to create and the visual material Midjourney actually produces, Midjourney users lack sufficient control over generated images.” The Office’s own test is a distance between direction and output. It had no instrument, so it estimated the distance from the tool’s general behavior. The investigation record is that instrument for a specific work: it does not assert the distance, it exhibits it, decision by decision, with dates. Altai filtration asks which elements were dictated and which were chosen; the record’s killed branches are the dictated elements (the evidence, an external factor if ever there was one, eliminated them) and its surviving selections are the choices. A deep record is filtration computed at development time instead of reconstructed by experts in discovery. And Burrow-Giles shows what such a record is worth: Sarony’s copyright survived because findings of fact enumerated his choices. The record is those findings, kept contemporaneously by the process itself.

6. The Correction

A provenance record is only evidence if it can cut against the person who keeps it. Here is where mine cut against me.

The spec-as-source claim has a demonstration: a blog series specifying an ad exchange (auction math, privacy architecture, billing model, interface) that a coding agent compiled into a working system in a weekend. Greenfield, and the chain from prose to running code held. Then I ran the same method against an existing codebase, and the record shows it failing. The spec could not carry the constraints that decided correctness: type contracts, concurrency guards, dimension safety. Code review found ten bugs the prose never specified against. The architecture survived; the implementation corrected the spec roughly twenty times.

The authorship consequence is direct. For that work, a claim tracing the artifact’s expression to my spec would overclaim, and my own record proves it: twenty selection events happened downstream of the text I wrote. Whoever, or whatever, made those corrections did creative work my spec cannot absorb. The record attributes them where they occurred instead of where I would prefer them.

That is the difference between provenance and advocacy. A record that always vindicates its keeper is a press release. This one assigns shallow depth to my contribution when the investigation did the work, and it assigns a well-specified change to the issue writer who never touched the pipeline. Evidence that can convict you is evidence a court can use.

7. The Wait

Doctrine in this area arrives late, narrowly, and after practice has settled, and the pattern is old enough to plan around. Congress protected photographs by statute in 1865; the Supreme Court upheld that protection in 1884, for one photograph, on one record, deciding “nothing” beyond it. Feist repudiated sweat-of-the-brow in 1991, after decades in which lower courts had drifted from the principle. Thaler decided machine-as-sole-author, the narrowest question presented, and the Court declined to hear even that. The line-drawing question is open at every level, and the institution that has said the most about it, the Copyright Office, qualifies its own position as contingent on “current generally available technology” and subject to revision.

That contingency is institutional as well as technical. The Register of Copyrights who issued the report was fired by White House email on May 10, 2025, the day after her office released its pre-publication report on AI training; the D.C. Circuit restored her by injunction, and on June 30, 2026 the Supreme Court declined to disturb it. The nation’s copyright regulator holds office through preliminary relief in a dispute that began the day after she published on this exact subject. Guidance from an office in that position is a weathervane.

None of that is a complaint. It is the operating environment, and it dictates the practical conclusion. When the line-drawing case finally arrives, the court will do what Burrow-Giles did: refuse the categorical question and decide the work in front of it on its record. The parties who win that case, whichever way the line runs, are the ones holding contemporaneous, dated, third-party-verifiable records of who decided what. Chat transcripts are transient, trapped in vendor logs, and silent about which alternatives were considered. An investigation record committed to a public repository is none of those things. Timestamps do not decay while doctrine deliberates; a 2026 commit is still a 2026 commit when the case is argued. The engineering practice worth adopting now costs nothing beyond what a disciplined investigation already produces: keep the record the eventual court will subpoena anyway, in a form it can read.

8. Limits

I am not a lawyer, and nothing here is legal advice. The argument is doctrinal pattern-matching by a practitioner; every quotation was checked against the primary opinion or report, and the disclosure below describes how, but checking quotes is not legal training, and a litigator will see moves here that a court would not permit.

No court has answered either question this essay leaves downstream of the spec: whether agent-compiled code is a derivative work of the specification, and where authorship vests in the compiled change. On the second, §4 describes a live doctrinal path to an answer that cuts against the spec-writer. Lotus remains good law in the First Circuit. Altai filtration may leave a given spec with no protectable residue, and merger will swallow the narrow ones.

Depth is an evidentiary proxy, and proxies invite gaming. An adversary can pad a record with alternatives it never seriously entertained. Dated public commits raise the cost of fabrication and expose padding to cross-examination (a padded branch has no evidence trail behind it), but no court has admitted such a record, weighed one, or seen one. The claim this essay makes for it is that it is the right shape of evidence for the inquiry the doctrine already runs, and that claim is falsifiable in the cheapest possible way: by the first court that looks at one and finds it unhelpful. The instrument also cuts against the essay’s own constituency: run autonomously at depth, it documents machine selection, and the honest reading of Thaler is that those changes have no author to find.

The Copyright Office’s prompt analysis is explicitly technology-contingent, so the prompt/spec line drawn in §2 inherits that contingency. A future system that executes loosely against detailed specs weakens the compiler analogy; a future report could redraw the Office’s line in either direction.

LLM collaboration disclosure

LLMs enter this essay in two roles. Instrument: research agents fetched the primary sources (opinions, dockets, the Copyright Office reports) and extracted the quoted passages; the verification log, mapping each claim to its source and quote, was reviewed by the author, and the extracted source texts were retained. Writing aid: the prose was drafted and revised with Anthropic’s Claude from the author’s five prior essays on this subject and his direction; the argument, the through-line, and the decisions about what to claim and what to concede are the author’s. No LLM decided what to publish.

Funding

This work was conducted independently, with no external, institutional, or commercial funding, and no client relationship with any party named.