Abstract

Abstract

Most business people dealing with intellectual property in any way know the revolutions going on in this area recently. For example, Lotus' suit for violations of the distinctive “look and feel” of its 1‐2‐3 spreadsheet. And, of course, Lotus was sued on the same basis by the parent company of the firm that developed Visicalc. And note the amendment of the 1976 Copyright Act to include software.At first courts applied this new protection only to source code, but then it was extended to object code, then to the flow diagrams and then to certain “non‐literal” features of the program. And during the same period, courts redefined the status of software in the patent area. Teknowledge received two new software patents.Cable systems won some protections, but lost others. TV‐show owners lost their campaign to stop or charge fees for video‐copying their product.Unfortunately, these highly divergent and conflicting trends have produced a situation that this author thinks cannot stand. First of all, it is contradictory to say that a computer program is a trade secret (no disclosure), or patentable (to make disclosure a fact) or subject to copyright, which assumes even wider public disclosure.Second, the ad hoc approach being used could result in too much protection. For example, if “look and feel” wins, spreadsheets may have to be so different that training costs shoot up whenever a change is made from one to another.Third, utter confusion reigns when the current situation is extended to advanced technology—even to that already in use. For example, a readonly compact disk (CD ROM) may contain a 20‐volume encyclopedia. Can it all be printed? Transferred to another computer? Portions displayed in a classroom? If we end up with a patent on the design of the laser disk, the production process kept a trade secret, the content of the disk copyrighted, the brand name of the disk trademarked, the talent on the disk subject to performance rights, and the work, if transmitted, subject to royalty payments, international competitiveness is threatened or destroyed.The author calls for new approaches. First of all, we should cease trying to kill behavior that the public generally feels is not wrong. They will copy tapes and feel no guilt about it, but they will not use a satellite dish if the same program is available to them in cable (that is, not without a clear guilt feeling).Consequently, owners of intellectual property are coming to realize that cultivating public awareness and sympathy are superior to legal watchdogging.Because sympathy has no role in controlling systematic commercial pirating, a different approach is necessary to stop that activity. Here the author suggests we may want to do what was done in movies. That is, stipulate at the point of production who participated, what shares or payments they deserve when the item is reused, and then collect one fee and have it distributed to the participants. An alternative is to develop a wholly new subset of patent law just for the unique realities of the computer industry. This special structure might well involve teams of technical experts to serve as negotiators.