brendan@batserver.cs.uq.oz.au (Brendan Mahony) (08/09/90)
fhapgood@world.std.com (Fred Hapgood) writes: >A number of observers of the programming scene are of the opinion >that the upcoming flood of software patents, taken together with >the recent expansion by the courts of ownership rights in user >interface copyrights, will cripple the development of the >software industry in this country (and therefore the industry >itself). I think it is defintiely time to start seriously thinking about the worth of continuing to apply physical property rights to intellectual property. Some appropriate questions are: 1) What does it mean to "own" an idea? 2) How is it possible to enforce respect for this ownership? 3) What are appropriate ways for others to respect this ownership, i.e. what laws are appropriate for protection of ownership? 4) What rights should ownership entail? Clearly ideas cannot be owned in the sense in which a building may be owned. One cannot know of the existence of an idea without gaining possesion of it. Ideas have no unique existence. They concurretnly be used effectively by many people in many different ways. My use of an idea in no way disrupts anotherrs use of the same idea. At best ownership can be connected with invention or authorship. Is it for the benefit of society that the author of an idea have sole right of use of the idea? This is very reasonable in the case of physical property for at least two important reasons: 1. physical property can solely possessed, and can usually only be used effectively by a sole owner; 2. those in sole possession of physical property have the means to retain sole possession, eg violent defence. Given the 1 and the potentially destabilising influence of 2 it is in society's interest to protect the right to continued sole possession. (Except of course where 2 can be easily overcome :-) ) But neither point holds for intellectual property. There is at least one very good reason for protecting the ownership of an idea. 1. The author has a right to gain some benefit from the authorship. Clearly it is in the best interest of society to reward the author of good ideas, if for no other reason than the hope that more good ideas will follow. But is sole control over the use of an idea an appropriate reward? Especially given the fact that it is an unenforcable reward. Are we in fact only ensuring reward for the powerful? I look forward to some interesting submissions on this theme. -- Brendan Mahony | brendan@batserver.cs.uq.oz Department of Computer Science | heretic: someone who disgrees with you University of Queensland | about something neither of you knows Australia | anything about.
josh@planchet.rutgers.edu (J Storrs Hall) (08/10/90)
In article <4534@uqcspe.cs.uq.oz.au>, brendan@batserver.cs.uq.oz.au (Brendan Mahony) writes: > I think it is defintiely time to start seriously thinking about the > worth of continuing to apply physical property rights to intellectual > property. Brendan's set of questions is certainly one that needs asking, but it needs the application of some understanding of economics in formulating the answer. The major economic theory that is applicable here is the theory of the public good. The basic idea is that something which must be supplied to everyone or not at all (i.e., a public good) will be drastically underproduced (that is, the rewards for producing it will fall far short of the social benefit, and thus people will do other things for more reward producing less social benefit). Property rights in intellectual accomplishments are a mechanism that prevents their being public goods, increasing the amount produced. However, the way those rights are defined must take account of the economic laws they are going to follow. Example: A patent is based on a bright idea, and specifically excludes basic plodding development work that could have been done by any "competent practitioner of the art". The notion of patents is at odds with economic theory: bright ideas are not in short supply, and do not require substantial economic investment for their production. It is the result of the costly labor that should be protected by a property right. Alternate example: A copyright, i.e. of a novel, does protect the result of long hard work, and is thus properly accorded the status of property. Summary: The definition of property rights in intellectual accomplishments must take cognizance of the economic realities it is trying to address. The intuitive concept of what should be protected and what shouldn't be, as in the case of patents, is often completely wrong. --JoSH
jas@ISI.EDU (Jeff Sullivan) (08/10/90)
In article <4534@uqcspe.cs.uq.oz.au> brendan@batserver.cs.uq.oz.au (Brendan Mahony) writes:
I think it is defintiely time to start seriously thinking about the
worth of continuing to apply physical property rights to intellectual
property. Some appropriate questions are:
1) What does it mean to "own" an idea?
2) How is it possible to enforce respect for this ownership?
3) What are appropriate ways for others to respect this ownership,
i.e. what laws are appropriate for protection of ownership?
4) What rights should ownership entail?
Clearly ideas cannot be owned in the sense in which a building may be
owned. One cannot know of the existence of an idea without gaining
possesion of it. Ideas have no unique existence. They concurretnly be
used effectively by many people in many different ways. My use of an
idea in no way disrupts anotherrs use of the same idea.
This is faulty reasoning. By the same logic, my occupation of an
other-owned building that is not being used PERSONALLY by the owner
does not interfere with the owner. However, it WOULD interfere with
the owners desires (e.g., to make a profit onthe property by renting
it).
This same holds true of intellectual property. If you use "my" idea
without "renting" it from me, you are interfering with my desire, as
owner, that I amek a profit of some sort from my (intellectual)
property.
At best ownership can be connected with invention or authorship.
Absolutely not. See above.
Is it for the benefit of society that the author of an idea have sole
right of use of the idea? This is very reasonable in the case of
physical property for at least two important reasons:
Don't be ridiculous. It is for the good of society as a whole that 5%
of the world's population possess >75% of the world's resources? Can
you substantiate this claim? The fact of the matter is that those in
power do not wish to relinquish power. Wealth is power.
1. physical property can solely possessed, and can usually only be used
effectively by a sole owner;
If I own an apartment building, it can't be used effectively by more
than myself? Why not?
2. those in sole possession of physical property have the means to retain
sole possession, eg violent defence.
Given the 1 and the potentially destabilising influence of 2 it is in
society's interest to protect the right to continued sole possession.
(Except of course where 2 can be easily overcome :-) )
But neither point holds for intellectual property.
Wrong. 2 holds perfectly well for intellectual property; it's just
harder to find the perpetrators. Extend your physical property
analogy to the case where you own a fleet of cars, spread over the
country, and you have a similar problem.
In either case, you can expend resources to track down and kill all
people in unauthorized possession of your property. It's just harder
when the property is more easily transmitted.
There is at least one very good reason for protecting the ownership of
an idea.
1. The author has a right to gain some benefit from the authorship.
Clearly it is in the best interest of society to reward the author
of good ideas, if for no other reason than the hope that more good ideas
will follow. But is sole control over the use of an idea an appropriate
reward?
Why not? Don't you believe a creator has the right to do what he or
she wishes with his or her creation?
Especially given the fact that it is an unenforcable reward.
Are we in fact only ensuring reward for the powerful?
Murder is an unstoppable crime, in the global sense. Should we do
away with the criminality of murder simply because there's no way to
stop people from doing it, and it is costly to pursue and prosecute
all who do?
--
--------------------------------------------------------------------------
Jeffrey A. Sullivan | Senior Systems Programmer
jas@venera.isi.edu | Information Sciences Institute
jas@isi.edu DELPHI: JSULLIVAN | University of Southern Californiafrancis@giza.cis.ohio-state.edu (RD Francis) (08/10/90)
All right, in this vein, let's look at the legitimacy of the "look and
feel" suits. I'm going to try something, which hopefully won't bomb
miserably; namely, an analogy.
M&M's are reasonably distinctive. For years, they have had the same
package design, the same shape, the same kinds (well, we'll ignore the
"holidays" stuff), and the same colors (and we'll ignore the "red dye"
flap). If another candy company wanted to come out with a candy, call
it W-W's, and put it in a dark brown wrapper the same basic shape and
size as the M&M's wrapper, would that be legal? I would hope not (I'm
not a lawyer, so I can't say for sure on any of this); a strong case
could be made that this other company is attempting to sell their
product by confusing the consumer into purchasing it when they intend
to purchase M&M's.
Now, say that company had distinctly different packaging from the M&M
packaging. However, the candies themselves are the same size, shape,
and selection of colors. Do the M&M people have a case? Well, I know
*I've* seen pseudo-M&M's before; I don't think there's anything to
prevent someone from copying the (ahem) "look and feel" of M&M's.
Other companies are certainly allowed to compete against M&M's (if
not, we've got a trust, essentially, which is against federal law for
anyone but the government :-). As long as their product is clearly
distinguishable from M&M's in the marketplace, there should be no
problem.
Now, let's say that this other company advertises that their candies
are "just like M&M's only {better | cheaper| better and cheaper}."
Anything obviously wrong with this? To the best of my knowledge,
as long as the comparison is provable in some way (taste test, pricing
at local stores, for instance), the M&M's people can't really
complain. I believe there are restrictions on pricing WRT the
production costs (i.e., if the other company were taking a loss on
their candy, in order to drive the M&M's people out of business, that
could be illegal).
So, what effect will this other company's product have on M&M's? Some
effect, in all likelihood. Some people will pick it up because it's
new, and like it well enough to stick with it. Some people will pick
it up because of its claims as far as its quality vs. M&M's, and like
it well anough to stay. However, there may well be a backlash
reaction ("If the best you can do to make me buy your product is
compare yourself to another product, maybe that other product's what I
should be buying"). Certainly, there will be a number of customers
who will *never* believe that *anything* could beat out M&M's
themselves (Well, I don't know anyone who feels that way about M&M's,
but for instance I'm sure we *all* know at least *one* person who
feels that way about, say, Kellogg's Pop-Tarts).
Ultimately, the success or failure of the new product will be
determined by its quality, and how successfully their marketing
strategy convinces people to try it.
Now, let's try to apply this (conceptually, at least) to software.
Should another company be able to come up with a product that fits
into the same niche that an existing product fits into? Certainly.
Should company B (the newcomer) be able to make their product
indistinguishable from company A's (the oldtimer) on the store
shelves? No, packaging should differ.
Should B be able to base the appearance of their product on the
appearance of A's, *inside* the package. I would say yes, based on my
previous discussion.
Should B be able to make their product Identical to A's? No. (going
back to the M&M's, the competition shouldn't be able to put little m's
on the candies, or to steal the recipe for the candies).
Whose product will win in the marketplace? Ultimately, the one that
most successfully balances pricing and quality.
OK, enough for idealism. Now let's get down to the real world.
Generally, software is bought relatively blindly, with only a minimal
opportunity to "test-drive" it. Quality differences aren't
necessarily going to be apparent to the average buyer. Software
purchases tend to be for the long term, more like car purchases than
candy purchases. If the purchaser cannot distinguish between two
packages in any way in a matter of a few minutes, to the purchaser
they are identical in our field.
Also, the appearance of a package, from the layout of items on a
screen to the choices for names for commands can represent a fairly
considerable investment of time and effort for a company. If I came
up with such a nice layout for a program that everyone who wrote that
type of program wanted to adopt it, I'd be annoyed to see it springing
up everywhere.
So what do I think should be done? Well, first it must be proven (or
admitted) that the "look and feel" of a program is based on that of an
existing program. If this is shown to be the case, that look and feel
should be changed *or licensed*. As an example, let's assume that the
ruler in MacWrite was an original idea of Apple's (I don't know
whether it was or not; I do know it's the first place I ever saw
anything like it). It was obviously such a good idea that every word
processor for the Macintosh that I've ever seen uses it. Unless the
originator of the concept has given permission, that doesn't quite
seem fair. By giving the originator of the idea some small payment
per copy of your program sold, plus credit for the layout. ("By
permission of Lotus, Inc. Sutol 10-9-8 uses the layout of Lotus
1-2-3").
Hmm, actually this is all drifting off into utter fuzziness. I really
don't have the slightest idea how to resolve this. The ruler, I
think, is the perfect example of an idea that was so good that
everyone *ought* to use it; it should be the standard for word
processors on graphic computers, unless someone thinks of something
better. It would be bad for the users, and somewhat unfair to other
companies, if that concept couldn't have been used by others; at the
same time, it isn't fair to force the company to turn their great idea
over to the public domain, in essence. Perhaps trademarking would
come in here somewhere?
--
R David Francis francis@cis.ohio-state.edu