If you’ve been following technology news at all (or even just listening to the regular news), you’ve probably heard about Interval Licensing’s lawsuit of AOL, Apple, eBay, Facebook, Google, Netflix, Office Depot, OfficeMax, Staples, and Yahoo for infringing on patents held by Interval Licensing (which the media has seized on reporting as a company belonging to Paul Allen, co-founder of Microsoft, though this has little to do with the suits other than the oft-noted absence of Microsoft among the companies named in the suit). The patents cover a range of technologies, including alerts and notifications for users and browsers for navigating information, and most were filed in the first half of 2000.
I won’t be covering the suit itself in any more depth–after all, media outlets have that handled. Instead, I want to focus on the application of intellectual property laws to the digital age.
Intellectual property laws were developed originally to protect the creators of ideas from having these ideas stolen. The idea of intellectual property claims including copyrights, patents, and trademarks have existed for a while, but the common practice of having the majority of a company’s assets rooted in intellectual property claims was not commonplace until the latter half of the last century–evolving specifically around the same time as digital property and media laws began to emerge.
Of course, the usage of intellectual property laws and other usage laws has changed with the advent of modern digital media. Consider the End-User License Agreement (EULA)–the statement that everyone clicks “I Agree” to when installing software. The idea behind the EULA is that the company has not sold you its software, but instead a license which allows you to use the software–all the while restricting your usage of the software. The concept of the EULA is completely foreign to most other industries–you are never sold a car which has its hood sodded down, disallows you from letting a friend borrow it, and requires you to fill it up with gas from the company that sold it to you–but then again, most industries are not operating on the same unique principles as the software industry. The EULA was conceived to protect the developer–while most physical products are not duplicable, software can be copied, shared, and spread without problem if not for the legality of the EULA (and the enforcement of copy protection techniques such as product keys and online activations).
However, the modern usage of the EULA governs much more than that. They tell us what we can do with the product (e.g. limiting us to educational usages or preventing us from installing it on multiple computers, even if only for one person’s usage). EULAs are everywhere and affect every product (even those in the open-source domain, though in order to be considered open-source the license must follow a set of rules which disallow the same obscene restrictions that exist in most proprietary software from being placed on it)–even programming languages like Java can have an EULA through the JDK and JRE (which has several strange provisions–including one preventing programmers from using Java in nuclear applications).
The result becomes that the EULA exists now not to protect the developer but to restrict the consumer. Returning to the example of the car, now imagine being sold a car where not only are you given restrictions on what you can do and who can use it, but also restrictions on your usage of it–not being allowed to drive it certain places, for example, or having a restriction preventing you from travelling faster than 100 mph, even if it is well within the capability of the car to do so. Why, exactly, must a restriction be placed on Java disallowing it from being used in nuclear power plants? What–other than the extremely specific paranoia of the publishers–justifies this kind of restriction? Modern nuclear power plants, after all, need software–all this forces a developer to do is find another language to build the software in.
The issue arises when we consider just where the boundaries of such restrictions should lie–something that hasn’t yet been defined, legally. Can a developer, for example, restrict the usage of a program based on their own beliefs or morals. Can an EULA specify, for example, that a program is not to be used in an election campaign unless for a candidate of the developer’s preferred political party, or that it cannot be used to develop software that competes with other products made by the developer?
The obvious truth is that these types of provisions corrupt the purpose of the EULA to protect the developers–which returns to the original news story regarding the lawsuit. While many people regard free software and open-source as the war of the small individual-run projects against large companies and conglomerates, this is clearly not the case. Large companies have just as much right to protection as the small companies–and ultimately, no company, organization, individual, or government entity should be able to restrict the developments and advancements of another. The free market thrives on competition–but in the digital world, many seem quick to make attacks based on ideas. The Interval Licensing lawsuit is not the only such example–consider Apple’s lawsuit on Android products using multitouch technology (something Apple holds the patent on but did not develop the technology behind), or SCO’s lawsuit against IBM and Novell regarding code patents being used in Linux.
Imagine where the world would be if this type of intellectual property bickering had hindered all developments. What if the transistor patent had been used to prevent the usage of the transistor in devices other than th’ose made by AT&T Bell Labs? Despite claims to the contrary in AT&T’s 1993 You Will” series of commercials (below), most of the innovations of the last 50 years haven’t been developed at Bell Labs (and nothing shown in the commercials was either). A monopoly on modern technology would exist if the patent had been used in this way–and even so, we still would be further behind in technology.
Modern technical development thrives on competition and innovation. Who has the idea is unimportant and it should remain that way–it is all about developing the idea, showing the applications of it, and allowing your ideas to become something more. Imagine if Motorola was paying royalties to Gene Roddenberry (the creator of Star Trek) for making cell phones. Imagine if Google, the world’s largest search engine, didn’t exist because Yahoo had prevented them from creating another search engine.
Intellectual property law no longer serves to protect the creators of technology. It now corrupts and destroys the creation of technology. Sure, Interval Licensing doesn’t actually make any products, but that doesn’t make it right to be used by companies that have developed the things their patents cover. It allows companies like Amazon to charge others for using the idea One-Click shopping–while Amazon did in fact develop this idea, restricting others from copying it is outrageous. After all, imagine if only one bank offered ATM services, if only one printer manufacturer used color ink, if only one electronics company made color TVs. Competition is not only important in pricing–it forces innovation which IP laws are now actively preventing.
So whereas an EULA restricts the consumer’s usage of the software, an intellectual property claim restricts the company’s usage of the idea. Tactics like these are being used by companies which are afraid to face the fact that the digital age introduces a new type of industry and a new type of resource–information–and that the old techniques of controlling products and services are inapplicable. Instead of arguing over intellectual property in a courtroom, companies need to return to the drawing board and rethink the way they do business. In fact, we need to rethink the way we do business. Innovation is built upon the ideas of others, and it is ultimately inevitable that the future of the computing industry lies in the hands of those building tomorrow’s companies.
