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James Boyle speaks at UC Davis: “Intellectual Property and the Future of Technology, Learning from the Software Wars” - February 10, 2011

Posted By Camille Barr, Feb 21, 2011

On Thursday, February 10, 2011, the Center for Science & Innovation Studies at UC-Davis hosted professor James Boyle (Duke Univ. Law School) to speak about the history of IP rights for software, and the benefits and disadvantages of the different protections that have covered software.

Professor Boyle began by summarizing the different goals and protections of copyright and patent law: copyright law is meant to protect original, expressive works, and patent law is meant to protect new, nonobvious, and useful inventions. He noted that the philosophical foundation of copyrights is that original works can stand on their own, thus creating new works should not be dependent on other works. On the other hand patented inventions are expected to build upon other inventions. He pointed out that both copyright and patent monopolies were granted by the Founding Fathers as a spur to innovation. He also noted the different terms of protection given copyrights (life plus 70 years) and patents (20 years).

The introduction of software created a conundrum because while it seemed deserving of some kind of IP protection, it didn’t neatly fit into either copyright or patent law boxes – i.e. it was expressive, but also useful.

Copyrights were the first choice of protection by software engineers. According to Boyle, this could have been disastrous because of the very long monopoly terms and the fundamental necessity of software code to build off of other code, which is contrary to the underpinnings of copyright law.

However, because of some excellent early decisions by judges interpreting copyright law in software contexts, these potential problems were minimized, and copyright law has remained the ideal form of IP protection for software, in Boyle’s opinion. In particular, Boyle noted three key factors that have allowed copyright law to protect investment in software without crippling development of new software: 1. judges determined that copyright infringement of software must involve actual copying, which drastically restricts the potential for infringement when borrowing code ideas for making new code, 2. judges held that “scene à faire” code, or that code which is commonly used by all programmers, is exempt from copyright protection, and 3. judges held that the copying of code that must occur to reverse engineer code (decompiling code to reverse engineer necessarily involves making a copy of the code, which some had argued was impermissible under copyright law) by competitors was fair use, and thus exempt from copyright protection. In addition, Boyle noted that copyright law, while not actively encouraging protection of the public domain, is structured so that organizations like Creative Commons can exist. Creative Commons is a non-profit licensing organization that allows programmers to license their code to others under the sole restriction that users must also make their code freely accessible to others to tinker with and use to create new code. Boyle noted that Creative Commons has been hugely popular with programmers and has been instrumental in the growth of software which necessarily builds on others’s code.

In contrast to copyright, Boyle noted fundamental problems with the rise of patenting of software which became prevalent in the late 1980s and early 1990s. While software was considered unpatentable early on, the Federal Circuit has allowed patents for both software and business methods (which have some similarities) and recent Supreme Court decisions have not prevented this trend. Boyle noted that software patents may not become a big bar to innovation largely because many of the building blocks of software have already fallen to the public domain and can thus not be locked up by patents. He worried, however, about the patenting of new technologies similar to software such as synthetic biology. Because these new areas have not been given to the public domain, basic building blocks (such as gene sequences) may be locked up very early on, preventing their use for the development of the field. He noted the value of groups like Peer to Patent (http://www.peertopatent.org) (a collaboration between NYU law school and the USPTO) which use the public to help discover prior art to render unpatentable pending patent applications.