The IP Illusion in Software M&A

This paper examines a structural problem in software M&A that the emergence of AI coding tools has made impossible to ignore: the absence of copyright protection in large portions of the code that transactions purport to transfer. The paper argues that the problem predates vibe coding. The image of a programmer manually authoring every line of code was fiction well before generative AI arrived. Frameworks, libraries, code generators, and open-source assembly already led to code being compiled rather than authored - calling into question the creative character required for copyright protection under EU and Polish law, which demands that a work constitute the author's own intellectual creation. The paper applies the civilian principles of nemo plus iuris and iusta causa to the standard software development contract and identifies a chain of consequences affecting not only the validity of copyright transfers but the enforceability of the underlying agreements themselves. The paper further examines the regulatory asymmetry between the United States, where patent protection remains available as a fallback, and the European Union and Poland, where it does not. The paper concludes with practical guidance for transaction lawyers and proposes trade secret protection as the operative alternative to copyright in an era of AI-generated code.