Applying intellectual-property rights to software and other electronic assets is hardly a simple matter. However, the rapid growth of the "information economy" and the ease of copying material over the Internet makes it increasingly important that we untangle this knotty issue.
The problems are varied and subtle. Most obvious are the technical questions of tracking and licensing material electronically. The more difficult questions are ethical and legal. These issues are not easily separable. Determining when copying is permissible requires an understanding of the underlying technology. Conversely, fashioning suitable technology requires an appreciation of the legal and ethical concerns.
The debate over the proper protection for software is an old one, and the various points have been pretty clearly stated. One argument in favor of software patents, for example, holds that patents are necessary to protect the R&D investments of software developers. Without this protection, the theory goes, competitors will be able to copy your work and sell competing products without comparable investments. On the other hand, opponents of software patents argue that software development is incremental, and that excellence is achieved when people can freely borrow and copy good ideas.
One problem with this debate is that people invariably start by assuming only certain existing types of intellectual-property protection. It might make more sense to think carefully about software and the features of software that require protection, and fashion a suitable mechanism from scratch.
This is precisely the approach taken by Randall Davis, Pamela Samuelson, Mitchell Kapor, and Jerome Reichman in "A New View of Intellectual Property and Software" (Communications of the ACM, March 1996). They note: "The problem is fundamental: Intellectual property law gives us three traditional mechanisms, yet the value in software is not well protected by any of them." Their conclusions are equally thought provoking: They recommend a new kind of intellectual-property protection--one geared specifically to the demands of software.
The broader questions of intellectual-property laws in cyberspace are just now being considered by lawmakers. The U.S. Government has published a white paper (http://www.ladas.com) on the National Information Infrastructure, which, among other things, discusses the role of copyright in a networked society. Congress is currently considering legislation based on the NII white paper.
Unfortunately, the originally proposed legislation has some subtle flaws. For example, David M. Ostfeld, in his testimony before Congress (http://www.ieee.org), criticizes the proposed legislation's use of the word "transmission" to specify what types of copies are protected. Web browsers routinely cache documents to allow more rapid navigation; since this cache contains a "transmitted copy," it might be considered a copyright violation under the bill's original wording, even if simply viewing the document is not.
My major concern with the NII white paper is somewhat more fundamental. In attempting to clarify the responsibilities of electronic services, the NII white paper treats all service providers essentially the same. Personally, I see a major difference between a public FTP archive and a network passthrough, even if they're being
handled by the same company on the same hardware. When ISPs are behaving as common carriers, they deserve common-carrier protection, just as AT&T's telephone operations wouldn't suddenly lose their common-carrier privileges if AT&T were to operate a bookstore (which lacks such privileges). Specific protections and liabilities should be associated with specific business activities. The current approach simply tries to blanket all service providers with a single, one-size-fits-none policy.
Tim Kientzle
technical editor