Good morning FRians! Happy Monday!!! Let’s all thank Stephen for today’s awesome post!!! Have a great day.
For this weeks topic a fair amount of background is in order, both in an explanation of certain industries and a certain amount of uniquely American legal history and the unique and then novel role of government in the conduct of property rights of the individual citizen.
First, a little technical background on the history of the computer industry, of which I’m certain most readers of this article are already well acquainted but which needs to be reminded for the context of that idea which I propose as a solution, or partial solution, to some of the political woes of our republic of late in their connection to technology and communication.
In the early days of miniaturization and personalization of certain computational machines, calculators, faxes, telephones, and computers, the nation and world were hitting their stride from the technical innovations of industrial revolution wherein the very process of technical innovation was moving from the process of manufacturing to the applications of items of personal, individual use.
Throughout the previous two and a half centuries, the efficiencies of the manufacturing and transportation processes had largely driven the economic development of western nations and began filtering out throughout the world in a form of technologic osmosis.
The Founding Fathers and framers of the Constitution, building a government upon enlightenment moral principles and a capitalist economic philosophy built into the very framework of our new nation the projected role of government in its connection to and limitations in respect to the development of technical innovation of this modern era.
Powers of the newly formed federal government, particularly the powers specifically enumerated to Congress included the 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;” Article 1, Section 8, Paragraph 8, US Constitution.
Thus, unlike every other nation in the history of the world, the government was not merely to encourage the development of science and useful arts, but to actually secure and protect the exclusive ownership and use of those ideas, innovations and discoveries.
(It is once again another unfortunate example of the overuse of the poetic language of English and the ambiguity of the word “right” that is employed here to mean ownership of an intellectual property, to be distinguished from a proper meaning of the word.)
The basic concept in more practical terms is that a person who invented or designed a new machine ought to enjoy the exclusive use of that original idea in order for him to build a business of upon that idea or machine so as not to be overwhelmed by a wealthy competitor who would in a more primitive society simply copy the device, and offer it at a significantly lower price so as to run the poor inventor out of business, then effectively steal the rewards for himself.
Likewise, the arts of literature and art, and other forms of entertainments, might be protected for the exclusive benefit of those who created them in this modern era of the printing press where such works could most easily and cheaply be copied, and unlike days of olde in Europe where books were rare, expensive, and only through the patronage of some wealthy aristocrat could such people ever hope to earn a living.
To such end, Congress created the Patent Office to oversee laws created to effect the purpose of this provision of the Constitution through three basic legal ideas we term “patents”, “copyrights”, and “trademarks”.
It is also an important part to note that it was never intended to give to any person or group perpetual or eternal ownership of an invention, discovery, or writing, but only to encourage its creation through a temporary ownership followed by open public use and disclosure of the idea. The price the creator paid in exchange for that exclusivity was the public sharing of that knowledge upon the expiration of a time set by law. It really is designed as a type of public contract, a “social contract”, in the true sense of the concept not the foolish concept it has more recently become.
The legal recognition of trademarks being a rather recent addition to the business law practices of nations, it is not an accident that the oldest legally recognized trademark occurred in America in 1870. For those less familiar, a trademark is designed to brand, or distinguish, a specific product or company. In essence, a trademark is of perpetual duration, as the perpetual duration of the trademark distinction does not interfere with the dissemination and spread of useful knowledge. http://www.schwimmerlegal.com/2002/10/some-of-the-oldest-trademarks-in-the-world.html
The patent is designed for inventions, ideas, and discoveries, essentially new useful technologies and machines. Traditionally, a patent was effective for 17 years from the date of the issuance of the patent. “The patent law change that happened in June of 1995 extended terms from 17 years at the time of issue to 20 years at the time of filing.” https://www.upcounsel.com/patent-length
The concept of the copyright was used to distinguish writings, drawings, and works of artistic endeavor as opposed to inventions and industrial innovations. Up until 1921, “the initial copyrighted term was 28 years from the date of publication, which could be renewed and extended for an additional 28-year period.” After 1920 that time-frame was several times extended further in several legislative acts. https://www.nolo.com/legal-encyclopedia/determining-length-of-copyright-protection-29483.html
The timing is important to understand, because the patent is designed around a reasonable expectation of the establishment of a business or industry upon the use of the new idea. The idea being that 17 to 20 years is more than enough time to build and establish a competitive business.
Whereas the copyright was essentially to protect the artist in his creative works. The idea being that a person writing a popular book should enjoy a the proceeds and control of that work throughout his lifetime, lest his work be publicly popular but he left destitute. (Or worse, his work used in some cheesy commercial. Okay, I added that last one.)
The copyright was extended to cover not merely the artist’s life but likely the lives of his children and grandchildren, a change I personally find unwarranted and distasteful, believing that 56 years is sufficient to keep a work out of the public domain and not the potential of three times that long under the more modern copyrights.
Which brings us to a fallacy of this approach in dealing with modern algorithmic writings, coding inventions, or electronic creations.
A computer has an effective life cycle of five to seven years. Does it make any sense that the software written to issue series of commands created by a software company have a copyright of 95 years? Or a patent for that computer architecture of 17 years? And is a computer program like a website or operating system subject to a patent as an invention or a copyright as a writing in code?
In the early days, Apple decided to protect their computer architecture under the patent laws and now allow other people to copy or “clone” their hardware, while IBM freely let their competitors, for a time, clone their computer design. The result being that IBM architecture became the industry standard and the Apple an unpopular marginal outlier. (They later had certain structures and formats which they tried to keep exclusive and thus lost the primacy as the leading personal computer producer, a mistake which would be copied later by Compaq.)
On the software side, Microsoft would write the operating system for the IBM and all the IBM clones upon which all other software would operate. Seeing the popularity of the Apple operating system’s graphic icon driven interface, Microsoft would simply copy the idea in open defiance of the copyright laws changing the appearance of their operating system to “Windows”.
Later, they would use their exclusive monopoly production of this legally protected operating system to push their own software programs like their knock off version of WordPerfect called simply Word, their knock-off version of Lotus 1-2-3 which they called Excel, and other applications. Having sold the operating system to the computer manufacturers they would include this end user software for “free”, in their competing with the other software venders.
Those other software venders were unable to obtain and enforce their copyrights and patents to protect and build their businesses exclusive of the competition, for one reason or another which is not worth delving into at this time.
One must not omit the example of Stacker, which created a unique data compression software to economize on data storage. Microsoft simply pirated the software and included it for free in their operating system. That is not mere speculation, but it was the decision of the court which awarded Stacker $125 million, but in the fast paced world of programming, the company itself was destroyed. The law may have protected some of their financial interests, but not sufficiently, and is held up as and example of laws failing to keep up with technological changes.
Thus, Microsoft used the copyright laws for Windows to do exactly what the old patent laws were designed to prevent in the manufacturing sector, to leverage their wealth to drive the competition out of business despite their innovative and novel ideas.
Imagine, if you will, an “electronic patent” and “electronic copyright” of say five and three years respectively. That a complete clone of a Windows operating system three years old could be produced and marketed in the public domain, or a Machintosh clone created and manufactured. The increase in market competition would certainly further the stated goals of the law.
The Constitution states that the purpose of such laws is “To promote the Progress of Science and useful Arts” but does not specify the time for the government’s protection.
The current time frames in this field have demonstrated how laws designed for manufacturing industries of a century or two ago are ill suited to this particular industry where the establishment of a business to manufacture of the computer itself does not warrant a two decade protection; nor the protection of the corporate writer/programmer in their creation of unique works of art that are merely algorithmic code, for which there is no interest in protecting their artistry for the rest of their life.
The law must often go back to its roots to examine the real purpose of the legal and political institutions and laws it creates. It is too easy for demagogues to blame the wealthy corporations, while simultaneously taking their campaign contributions, in order to pander to a system of their own creation through legal neglect and incompetence.
