Re: Abandoning property (Was: Copyright Extension Bill Passes Congress)

Responding to Dan Burk, is it really your view that copyright in computer program source code should last only one or two years? I know that serious arguments for a very limited term of protection for user interfaces have been advanced, by Pam Samuelson and others, but I haven't heard anyone other than the Free Software folks take this position on code, if it is your position, for a very long time. There would appear to be so many assumptions in your point of view that I disagree with -- for example, the implicit premise that including a copy of someone else's code is necessary in order to create a new or improved work, or that users would necessarily benefit if multiple vendors could sell competing variants of the same code base -- that I'm not sure any discussion we might have on this subject could find enough common ground to be fruitful.

We read Sega very differently, for example. The intermediate copying that occurred there was for purposes of decompilation. The entire program was copied, but because the purpose was to study the program sufficiently to be able to extract the unprotected elements for inclusion in the defendant's work, the intermediate copying was excused as a fair use. The only thing that Sega suggests couldn't be done by the defendant was to include a copy of the first program's protected elements in the defendant's commercial products. That doesn't seem like an insuperable hardship to me, but it seems to be precisely what you think should be allowed.

Consider me dense if you like, but your reference to the first sale doctrine in the context of the Y2K problem completely eludes me. The lesson I take away from the scope of the problem is the extent to which code that no one imagined would be used thirty or more years after it was written remains, in fact, critical to the functioning of so many large systems. Old code never dies, it just gets embedded in more code and keeps on chugging. I can't see how one could argue that the useful life of software code is one or two years in the face of this massive, irrefutable empirical demonstration to the contrary.

And as for packaged software, we agree that the marketing life of any particular version of a product (i.e., "Widget-Maker Version 3.0") is less than the useful life of the product's underlying code, but draw very different conclusions from that. My view is that this makes it fallacious to base an argument about the useful life of software code upon the shelf-life of particular product versions, which are merely artificial, marketing-driven designations in most cases. When a software developer decides to invest the resources necessary to create a new software product, it will consider from the onset of its development effort the potential for future revenue in the form of upgrades -- which are often little more than slightly revised versions that add a few new features, but do not involve significant development efforts and almost never are rewritten from scratch. You seem to assume that the investment decisions are all one-shots, or at least that there would be no loss to consumers if software developers were forced to consider all such decisions on a one-shot basis. No one can be sure what the effect of that would be, of course, but my hunch, based on the way the software business has evolved in the last fifteen years, is that this would decrease the amount of resources that a company would find it prudent to invest in new products, resulting in fewer and less ambitious development efforts, and increase the prices that consumers would have to pay for the first version of something new -- assuming there would still be any new first versions!

I hope we could agree that even standard commercial software can require millions of lines of complex code , which is difficult and expensive to write. I think that suggests that the person who invests the time and money necessary to create that code ought to be able to recoup their investment over a long period. You seem to think it suggests that others should be able to use the fruits of that effort for free, at least after the first version has been marketed. My view is that would kill innovation and competition in the software business. For example, it took Lotus many years to grow the market for Notes, years in which it incurred substantial operating losses on the product but continued to invest in its further development. Even Microsoft has been unable to match some of Notes' original features, relating mostly to replication. If others had been able to copy the code of the first version back in 1990, I doubt Lotus could have justified its long-run investment in the product -- and all we'd have today is some kludgy Microsoft knock-off of the first version, refined only to make it work better with Windows!

If your real concern is over-protection of user interfaces or "non-literal elements," that battle ended a while ago. There really isn't any significant controversy going on right now that I'm aware of about the scope of protection for such elements. The extent to which developers now rely upon common design and programming conventions, advances in UI design and design tools, the increased sophistication of the user base, many factors may help to explain why this is so even if you think that the legal battle is unresolved. Personally, I think the software community doesn't care if it's ever resolved with any greater certainty, possibly because they need to move faster than the legal system can ordinarily accommodate and because they realized at some point that out-and-out cloning is both unnecessary and bad for business. There used to be a saying that the hardest program to learn was your second, because you had to unlearn the first. Well, everyone who moved on to Windows has learned their second, third, or tenth program by now, and new users think they're all the same anyway (because, under Windows, they largely are), so the UI issue is essentially moot IMHO.

Maybe I started this by picking on something you meant merely as a rhetorical aside, and I've been on this list long enough to have learned that you almost never back down from anything you've said, even if it wasn't essential to your point. But I'm having trouble believing that this is a fully considered view on your part, and if it is, I want to express my strong disagreement with it.

Kerry L. Konrad
<k_konrad[_at_]stblaw.com> Received on Mon Nov 23 1998 - 17:34:29 GMT