My career as a lawyer has involved an ongoing search for simplicity. This is especially so for the application of intellectual property (IP) law to information technology (IT).
I've looked for frameworks that help explain the rationale for existing IP law for IT. The frameworks also help predict future directions in IP for IT. This helps refine legal strategy for clients.
I feel that if as a lawyer I don't try to simplify then I'm not doing my job properly. This post sets out a framework for the evolution of IP law for IT in the 30 years since about 1977. Along the way I link the story to the dialogue in Fox in Socks by Dr Seuss.
Simply stated, to win in the commercialisation of their products, players in IT and content licensing markets must select from a wider range of laws, conventions and practices than ever before, eg:
trade secret law,
trade marks law,
open systems, or
a combination of those regimes, together with the ever-reliable contract law.
Today I was pondering recent developments in patent law. A search for simplicity led me to Fox in Socks. This is a 1965 children's book by Dr. Seuss, the pen name of the American writer Theodore Seuss Geisel (1904-1991) seen in the accompanying US postage stamp.
Fox in Socks has a style which reflects the stylistic simplicity first achieved by Dr Seuss in his 1957 book titled The Cat in the Hat. That book is one of the biggest selling children's books of all time and uses only 236 unique words. The style of both books makes them very engaging and understandable for children as young as two or three.
The characters and story of Fox in Socks can be read as a parable for the evolution of IP for IT over recent decades. I'll first overview the book's tale and then try to support that claim.
In Fox in Socks the character of Fox is the protagonist. He engages another character, Knox, in increasingly complex tongue-twisters. The first of these is "Fox / Socks / Knox / Box". After that Fox's rhymes and sentences get more complex.
Though Knox keeps protesting ("This game makes / my tongue quite lame, sir.") Fox spars on regardless, reaching his opus paragraph which begins with this sentence: "Through three cheese trees / three free fleas flew."
Ultimately Knox fights back with his own tongue-twisters, and wins.
The verbal jousting between Fox and Knox resembles the evolution of IP law for IT. Imagine the following:
Imagine Fox represents the innovations of IT over recent decades. Over the period since about the 1970s IT has cleverly woven a web of wonders. It has grown ever more complex and layered, like Fox's tongue-twisters. Some IT breakthroughs (eg TCP/IP and Java) have brought things back to simplicity, but as in law complexity is an ever-present tendency. In business/IP law and especially in IT if you fail to keep up you become dazed, confused and lost in new jargon and paradigm shifts.
Imagine Knox represents law and IP law's evolving response to IT's innovations in recent decades.
Now with Fox and Knox in mind, here is my snapshot of IP for IT over the last 30 years or so.
30 years of IP for IT (1977-2007)
Because the money was in hardware, nobody cared much about the legal status of software up to the 1970s. However, in the late 1970s the rising importance of software began to be noticed (first in the US) and as revenues increased the legal system lifted an eyelid. At the time there was debate in the US as to the best way to protect software in the context of the legal arena in the US and abroad.
To grant proprietary rights in software the legal options discussed included patent law, a new unique purpose-build law or copyright law.
Patent law was problematic for several reasons. One is that in the US a remarkably low percentage of patents were upheld on appeal in that era. In the US books were written bemoaning that fact.
As to having a purpose-built law there was reticence. One concern here was that unique laws might take a long time to gain international acceptance, unlike existing IP law recognised under various international conventions, some dating back to the 19th century.
Then in the 1980s the US settled on copyright law. The US proceeded to insist (sometimes using the threat of US trade law sanctions) that copyright law become the basis for protection of software in the legal arena. An update on this approach is contained in this BBC opinion piece by Prof. Michael Geist of the University of Ottawa, Faculty of Law - US copyright lobby out-of-touch. Note in particular the reference to section 301 of the US Trade Act of 1974.
The US convinced or arm-wrestled various nations, including those in East Asia, into accepting copyright as a basis for legal protection of software. Copyright laws were changed, including in Australia in the early 1980s, to expressly accommodate software. So the same law as applies to the text and graphics in Fox in Socks came to apply to the hidden 0s and 1s that make up the source code of software. In effect the source code was now legally locked up in Fort Knox.
Then Fox, oops, I mean IT, fought back again with ongoing and rapid innovation. Programmers, popularly known as "hackers" in the game of IT, sought ways to work around the copyright principles applied to software.
Since the early 1980s they and the IT sector have moved ahead at warp speed, supported by venture capital and popularity with users. In those moves IP law trails behind, though many and major changes in legal paradigms have been made to keep up.
The level of innovation and competition has made IP for IT a very complex legal environment with currently no end in sight.
Trying to use copyright, a law not designed with software in mind, to protect software is challenging (Knox would say "tongue-twisting") for lawyers and judges alike, and in several jurisdictions including the US. A law that works brilliantly for the protection of illustrations, story lines, plots, characters and literary themes seems out of place when applied to source code, blocks of code and software algorithms.
While there was legal debate, the decision to use copyright was largely politically-driven in the US and elsewhere. It put software and other IT into an inherited copyright law straightjacket.
That ill-fitting or inappropriate jacket is one reason why there has been such a noticeable shift in recent years to patent law for IT. Software innovators, owners and financiers who seek to commercialise software have joined to collectively vote in favour of patents to protect IT innovation, especially in the US. On our advice a number of our clients have followed suit.
Other IP laws continue to play a role, as does the ever-reliable field of contract law, but patents are the growth area within the field of IP. I noted the damages aspect of this in the post titled Patent infringement damages skyrocket.
Nonetheless there is one reason to regret the development. One of the benefits of copyright law is that provided you don't copy anyone you can expect to face no legal claims. It's an easily applied and simple principle.
In contrast, with patent law if you don't copy you may still be in breach of someone's registered prorietary rights. Therefore, due to patent law it is imperative to conduct patent searches of the relevant field well before product development begins or where feasible even earlier at the product conception and design stages. The need for patent searches, and the development of legal and IP strategy with respect to them, adds to costs. Patent attorneys and legal knowledge and strategy are essential.
IP for IT has been a long strange trip and there's a long way to go yet. Nobody should launch into developing or investing in an IT business if they do not first conduct a thorough patent and general legal audit to check the legal status of the venture and its products.