Does the US Intellectual Property Policy Work for Software?

  • James Boyle: A natural experiment Imagine a process of reviewing prescription drugs which goes like this: representatives from the drug company come to the regulators and argue that their drug works well and should be approved. They have no evidence of this beyond a few anecdotes about people who want to take it and perhaps some very simple models of how the drug might affect the human body. The drug is approved. No trials, no empirical evidence of any kind, no follow-up. Or imagine a process of making environmental regulations in which there were no data, and no attempts to gather data, about the effects of the particular pollutants being studied. Even the harshest critics of drug regulation or environmental regulation would admit we generally do better than this. But this is often the way we make intellectual property policy.
  • US IP policies do not seem to be working in the way intended for software. Huge companies, such as Microsoft, have patented many aspects of software, and have the financial backing to use their patents to bully competitors. Developing countries, such as China, have a huge problem with illegal copying of software. P2P and music swapping is unlikely to die anytime soon, even with the lawsuits against end users. Open source seems to be thriving, but has its own set of problems. The IP system may limit the true aspects of innovation which it hopes to protect, so what is the answer for fixing it? Should patents for all types of uses be treated the same? Is a movie the same as software which is the same as a part for an automobile? The digital revolution has blurred the lines, and I believe the system will need to continue to evolve to protect who it should while still feeding the innovation this country thrives on.

  • WIRED: File Sharing Growing Like a Weed While the music industry attempts to shutter peer-to-peer services in court and in Congress, one company is using P2P networks to promote and pay artists. Shared Media Licensing, based in Seattle, offers Weed, a software program that allows interested music fans to download a song and play it three times for free. They are prompted to pay for the “Weed file” the fourth time. Songs cost about a dollar and can be burned to an unlimited number of CDs, passed around on file-sharing networks and posted to web pages.
  • Maybe a policy based upon this type of system could work? It certainly would be nice to sample software before you have to pay for it. You would be more likely to be loyal to the software companies you did buy from.

    Another possibility is the Creative Commons copyright, which allows you decide how to share your content and how it can be used by others.