[The Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
-- U.S. Constitution, Article I Section 8
Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum (which, in fact, rather resembles what is being attempted here). We will need to develop an entirely new set of methods as befits this entirely new set of circumstances.
Most of the people who actually create soft property - the programmers, hackers, and Net surfers - already know this. Unfortunately, neither the companies they work for nor the lawyers these companies hire have enough direct experience with nonmaterial goods to understand why they are so problematic. They are proceeding as though the old laws can somehow be made to work, either by grotesque expansion or by force. They are wrong.
-- John Perry Barlow ("The Economy of Ideas", March 1994)
Browsing through a borrowed book, lending a magazine to a friend, copying a news article for your files - all seem innocuous enough. But the Clinton administration plans to make such activities illegal for works distributed via digital networks.
-- Pamela Samuelson ("The Copyright Grab", January 1996)
Initially, respect for copyright protection needs to be highlighted -- intellectual property needs to become a "household word." ... Not only must a curricula be developed and made available for all educational levels, but also a methodology must be established for the continual reinforcement of the importance of intellectual property throughout the lifelong learning of every NII user.... Certain core concepts should be introduced at the elementary school level -- at least during initial instructions on computers or the Internet, but perhaps even before such instruction. ... At the same time that children learn basic civics, such as asking permission to use somebody else's pencil, they should also learn that works on a computer system may also be property that belongs to someone else.
-- White House Information Instruction Task Force ("Intellectual Property and the National Information Infrastructure", September 5, 1995)
Note: Some of the links in the list above connect to the place on this page where each item is described, so that you can see it in context. Follow the link from there to the actual reading.
The laws regarding patents and copyrights are extremely complex and technical. What else would you expect with so many lawyers involved? Here are some resources to help you get oriented:
Computer programs are poorly matched to traditional categories of intellectual property. Are programs inventions, and thus covered by patent law? Are they "original works of authorship," and thus covered by copyright law? Both? Neither? The sections below on the legal cases dealing with software patents and software copyrights illustrate how problematic software can be for intellectual property law. Before delving into those details, however, here are some more general perspectives:
The problems posed by digital media for intellectual property may have first become apparent with software, but the digitization of information, and the resulting ease of duplication and transmission on the Internet, is upsetting the balances struck by intellectual property law. Some people fear that rampant copying on the Internet will make it impossible for authors and publishers to be fairly compensated for their works. Others fear that a tightening of copyright law will destroy the regime of fair use. In addition to the pieces listed here, also look at the material below on the NII White Paper.
National Writers' Union. "Authors in the New Information Age: A Working Paper on Electronic Publishing Issues." September 14, 1995. This paper advocates positions that writers should take in view of the changing relationships between authors, publishers, and distributors made possible by information networks.
Software is particularly troublesome for patent law. On the one hand, machines are patentable, and on the other hand, mathematical algorithms are not. Computer programs are both like machines and like mathematical algorithms, so judges have had to split hairs to distinguish between patentable and non-patentable software elements.
The result of this hair-splitting is highly confusing. It rests on complex and -- to be honest -- technically questionable decisions of the Court of Appeals for the Federal Circuit. If you delve into any of the patent cases described below, you will find them tough going. The following pieces can help get you oriented:
The material on this is extensive, and appears on a page of its own.
U.S. copyright law derives from a bargain, provided for by the Constitution, whose goal is "To promote the Progress of Science and useful Arts," whereby authors are given a limited monopoly on their works. This has evolved into a balance that permits authors to profit from their works, while still allowing the public to have access to them and build upon them. For example, the "first-sale doctrine" provides that if George buys a book that has been copyrighted by Harry, George can later give or sell that book to Liz without asking Harry's permission. "Fair use" provisions allow libraries and educational institutions to do limited copying. More importantly, much of what technically is copyright infringement by private citizens no one really cares about, because there is no way to casually print or distribute large numbers of copies, and making and sharing small numbers of copies generally has no economic consequence.
The Internet upsets this balance, because it trivializes the task of copying digital information and making it available worldwide. This issue first became apparent in the 1980s with "software piracy", since software was the first kind of information to become generally available in digital form. Consequently, what was once viewed as simple software "sharing" is now widely considered reprehensible, even criminal behavior. As the Internet expands, the same issues apply to all kinds of information. Finding a new balance will require making difficult political choices.
These tensions surfaced in September 1995 with the publication of "Intellectual Property and the National Information Infrastructure", a report by the White House Working Group on Intellectual Property Rights, part the of Secretary of Commerce's Information Infrastructure Task Force, chaired by chaired by Bruce Lehman, Commissioner of Patents and Trademarks. The NII task force was frankly worried that content providers will not place anything of value on the Internet, for fear of massive copyright infringement.
The report characterized its recommendations as "no more than minor clarification and limited amendment" to the copyright statute. But there are several significant changes proposed. One would give copyright owners exclusive rights over "transmission" of information, not just copying. Another would eliminate the first-sale doctrine for digital works. Another would criminalize any tampering with copyright protection mechanisms, or with copyright identification information. Several bills have been introduced in Congress to implement the White paper's recommendations, but none have been passed yet.
The White Paper was roundly criticized by the academic and library communities as a sell-out by the Administration to large publishing (and especially motion picture) interests, and a significant erosion of fair use. Some of the critiques have gone on to examine the appropriate role of copyright in the Internet era.
"Intellectual Property and the National Information Infrastructure." The report of the Working Group on Intellectual Property Rights. September 5, 1995 This is a massive document (250 pages plus appendices and over 500 footnotes), but it is worth at least skimming, because it gives a comprehensive (critics say biased) overview of copyright, patent, trademark, and trade secret law, with special emphasis on the implications of networks and digital technology.
In December 1996, 96 nations participated in treaty negotiations in Geneva under the auspices of the World Intellectual Property Organization (WIPO). "WIPO Copyright Treaty." and "WIPO Performances and Phonograms Treaty." Diplomatic Conference On Certain Copyright And Neighboring Rights Questions. Geneva, December 1996.
These were the first substantial revision of international copyright law in 20 years (since the Berne Convention). The U.S. signed the treaties in April, 1997. Implementing the treaties in the U.S. currently awaits enabling legislation.
A major motivating factor in negotiating the treaties was "the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works." The treaties clarify that copyright protection extends to computer programs, and they require signatory nations to provide legal remedies against any person who removes or alters electronic copyright information.
Implementing the enabling legislation has proved contentious, with several competing bills now before the House and the Senate. In July, legislation was introduced at the request of the Department of Commerce (H.R. 2281 and S. 1181) which critics say goes much farther than the treaties require in imposing strict copyright enforcement. Competing legislation seeks to clarify the liability risks of internet service providers and other issues, such as that search engines, links, and browsers are not infringing devices. Much of this activity is being tracked by the Digital Future Coalition, a coalition of nonprofit educational groups and commercial trade organizations representing computer and telecommunications industries.
The path set out by the NII White Paper represents one kind of response to the challenges the Internet poses for the copyright regime. But there are other views. For example, the the papers by Barlow and Dyson described above argue that copyright will simply become less important in the information economy.
Yet another view looks to digital rights management technologies as a way to salvage copyright. The idea here is that if the basic issue is that copying is so hard to control on the Internet, then we should implement technologies that make copying difficult. This can be accomplished using encryption techniques, which assure that information can be accessed only by intended (licensed) recipients, and trusted systems that will not perform unauthorized copying. A second class of technologies include digital watermarking, which "indelibly" mark information so that unauthorized copying can be detected.
As you might expect, there are both utopian and dystopian predictions about this technology. Some people view this as engendering an outpouring of creativity and productivity in the information economy, while while others fear that fine-grained, strong control of copying will kill fair use totally.
1994-forever?: The Church of Scientology vs. The Net. This interminable series of copyright lawsuits and other antics is notable in demonstrating the lengths to which people can go if they are determined to push intellectual property law to its fullest extent in order to restrict the distribution of information on the Net. I stopped following this case in 1995, but even a short summary of the events up to that point deserved a page of its own.
The Electronic Frontier Foundation archives has a section on intellectual property which is worth browsing for articles and source material.