Archive for April, 2007

Software Patents before Diamond v. Diehr?

April 19, 2007

On the wikipedia entry on Software Patents there is a dispute regarding the standard story about software Patents. Most people will tell you that software was not patentable before Diamond v. Diehr (1981). However, some enterprising individuals have found some pre-1981 software patents, including this one for “Computer Data Read-In Control System” Filed in 1964 #3,316,539. The kicker I believe, is that most if not all of these patents include a clear hardware component. On the other hand one could cite Gottschalk v. Benson, 409 U.S. 63 (1972) where the court rejected the patentability of a program that converted a Binary Coded decimal numbers into pure binary numbers. I think rather than being explicitly disallowed, patents for software were simply a non-issue (given the paucity of cases and patent applications on the subject) that was largely unconsidered and therefore unresolved before the Court issued its ruling in Diamond.

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Three Ideologies walk into a Bar…

April 19, 2007

Those involved in IP issues generally come from one of three perspectives: IP Maximalism, IP Pragmatism, and IP Abolitionism.

1) IP Maximalism

In the view of IP Maximalists, Intellectual Property is directly analogous to physical property. Rights in creative works should be perpetual and absolute. In this viewpoint, fair use is an inconvenient notion that was a product of a time with higher enforcement costs, but nowadays can be eliminated through digital rights management technology. IP maximalists are the driving force behind the DMCA, the Sonny Bono Copyright Term Extension Act, and the globalization of the US intellectual property regime. In an IP maximalist world view, intellectual property rights will do for the information revolution what the enclosure movement did for the agricultural revolution: clearly defined property rights will allow for an efficient allocation of capital thus creating economic growth. Piracy, then, is theft and must be minimized, if not eliminated. Major proponents of this view are the largest corporate rights holders (media, software, and pharmaceutical companies) and the IP Bar. Being that these companies have the most resources, are small in number, and have concentrated interests, the logic of collective action tells us that they will have the most success in lobbying for IP law reform in their favor.

2) IP Pragmatism

The Pragmatist view of IP comes straight from the Article 1, Section 8, Clause 8 of the US Constitution: “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.” This embodies the traditional view of IP Laws as solving a public goods problem: because intellectual works can be copied effortlessly and without compensation to the creator, creative works and inventions will be underproduced unless the law requires the public to compensate the artists and inventors in some way. Traditionally, this has been through the grant of a temporary monopoly as in the case of patents and copyrights, but in other circumstances has taken the form of private copying levies or other schemes. Although they are interested in protecting intellectual property rights, IP Pragmatists generally tend to balance enforcement against public interests. In this view, enforcement of IP rights should occur only when piracy has a significant negative effect on the production of new creative works. For example, non-commercial copying of music may be tolerated while piracy of software by small businesses, sale of pirated movies, and importation of infringing pharmaceuticals would be punished harshly. Fair Use then becomes a central issue in the IP Pragmatists view: the Pragmatist wants Fair Use to be broad enough so that otherwise useful applications (such as scholarship and parody) are not suppressed, while at the same time limited enough that a healthy market for protected works is maintained.

This view is the traditional view, and probably the default view of most people who don’t have a horse in this race, though the general public is mostly unaware of how IP laws effect them and thus have no opinion at all. The tech industry has several proponents of this view. Some, like RIM and Hynix (makers of Blackberry) have been burned by patent litigation. Others, like Google and Apple, hope to profit from a broader view of fair use laws. Still others, like Intel and IBM, sell products that are largely unaffected by IP laws and would gain from and increased consumption of technology goods that would result from a more flexible IP regime.

3) IP Abolitionism

Complete opposition to Intellectual Property is a recent product of the Internet Era. This school of thought originated in the early computer research labs of MIT and Berkeley and spread throughout the emerging computer hobbyist culture of the 70’s and 80’s. In these non-commercial utopian environments, unfettered exchange was considered a virtue which allowed the community grow, and people to learn from one another. The explosive growth of the Internet allowed this culture to spread world wide, in the form of Linux and the Open Source Movement. As the Internet started affecting society at large, the powers-that-be started taking an interest in controlling and regulating the Internet. The Communications Decency Act and the Clipper Chip initiative stirred the heretofore unorganized IP Abolition Movement to action. They gained significant credibility among a growing online population by adding the protection of privacy and free speech to their causes. A new generation of internet users raised on Napster and Peer to Peer software has further swelled their ranks. The success of some Open Source Software (particulary Linux, Apache, and Firefox) have won them some friends in the high tech industry. However, despite their numbers they are still a small minority and have been unable to achieve significant changes in public policy.

See: Richard M Stallman, Electronic Frontier Foundation, “Against Intellectual Monopoly” by Boldrin and Levine, Lawrence Lessig

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One major player hasn’t been mentioned here: Where does the Patent Office fall on this scale? My impression is that the Patent Office has its own institutional and administrative interests in mind, first and foremost, but otherwise tends to hew to the Pragmatist line as encoded in much of 35 USC and 37 CFR.

Hello world!

April 18, 2007

Welcome to my blog, “IP, Freely.” This is the blog I went to law school to write. Its focus is on the intersection of Intellectual Property Law, Technology, and Society.