Proposal For "Intellectual Property" Reform Version 1.12 by Shaun Case Copyright 1993, Shaun Case. All Rights Reserved. Unauthorized duplication prohibted. I'm not going to spend a lot of time trying to convince you that the United States' intellectual property laws and that the methods for assigning such rights are woefully behind modern technology. Anyone who disagrees should consider the following pieces of evidence: First, I sent a letter of complaint to my representative, Wally Herger, who passed it on to the U.S. Patent and Trademark Office. I have reproduced the letter, below: Representative Wally Herger U.S. House of Representatives Washington, D.C. 20515 The Honorable Wally Herger, I am a student graduating in Computer Engineering this May. During my time in school, I have watched with growing alarm the impact that computer software patents are having on the high tech industries of the U.S.A. The Patent and Trademark Office is issuing patents on many, many "inventions" that are obvious to a skilled practitioner in the field of computer science, or even to myself, an undergraduate engineering student. This trend has grown tremendously since I entered university six years ago, and I am extremely worried about the stifling effect these patents are having NOW. I suggest three remedies: Allow computer scientists to be patent examiners. Reduce the duration of software patents to a maximum of six years. This is 2 or 3 complete product life cycles in the software industry. Perform a one time reexamination of all extant software patents by examiners competent in the art of computer science. I received a reply from Harry F. Manbeck, Jr., Assistant Secretary and Commissioner of Patents and Trademarks. Mr. Manbeck's letter contained the following statements: "First, we wish to note that job applicants from all engineering disciplines are considered for patent exmainer positions that are recruited at the PTO." "Second, we disagree with Mr. Case's conclusion that the PTO is issuing patents on inventions that are ''obvious.'' In fact, section 103 of title 35 of the United States Code precludes the PTO from issuing patents where the differences between the claimed invention and the prior art would be obvious to one of ordinary skill in the area of technology to which the invention pertains. ... Mere scientific principles, mathematical forumulae or algorithms are not patentable subject matter, nor is a mere computer program patentable subject matter." "The Advisory Commission on Patent Law Reform was established in August 1990 by the former Secretary of Commerce. The Commission is the first advisory group of its kind since a presidential commission reviewed the patent laws and system in 1966." Mr. Manbeck enclosed a brochure outlining the duties and qualifications of patent examiners. The PTO accepts applications from applicants with a degree in one or more of several types of engineering or science. Neither "Computer Scientist" nor "Computer Engineer" degrees qualify one to be a patent examiner. Next, consider the following patents(1): 4,449,182 Interface between a pair of processors, such as host and peripheral-controlling processors in data processing systems filed 10/5/81 granted 5,15,84 inventors Barry L. Rubinson, Edward A. Gardner, William A. Grace, Richard F. Lary, and Dale R. Keck assignee Digital Equipment Corporation This patent apparently covers ring buffers. 4,464,650 Apparatus and method for compressing data signals and restoring the compressed data signals inventors Lempel, Ziv, Cohn, Eastman assignees Sperry Corporation and At&T Bell Laboratories filed 8/10/81 granted 8/7/84 owner Sperry Corporation (now Unisys) Invented 1976, published IEEE Trans Info Theory 1978. 4,555,775 Dynamic generation and overlaying of graphic windows for multiple active program storage areas filed 10/7/82 granted 11/26/85 inventor Robert C. Pike owner AT&T Lawsuits of X window vendors threatened, since this covers backing store. AT&T says, "The `backing store' functionality available in the X Windows System is an implementation of this patented invention, therefore, your company/institution needs a license from AT&T for the use of this patent." The MIT AI Lab implemented this three years before the patent application was filed, but the implementor (Richard Stallman) didn't think it was worthwhile enough to publish a paper on. The statement that the patent system and patent laws have not been examined since 1966 speaks for itself. Despite the fact that Mr. Manbeck's letter provided me with information of which I was already aware and did not address my concerns, Representative Herger was apparently satisfied with the results, and I received no more correspondence from either him or Mr. Manbeck. Finally, in an article titled "Electronic Envelopes?" in the February 1993 issue of _Scientific American_, which deals with electronic privacy and authentication, Paul Wallich states, "_The U.S. is the only nation that permits the patenting of mathematical algorithms_, and so programmers in the Netherlands or New Zealand apparently have little to fear."(2) (Emphasis mine.) It is common knowledge that something is dreadfully amiss at the U.S. Patent and Trademark Office, but this knowledge does not seem to have reached those actually working at or running the PTO. The over 200-year-old U.S. patent system (founded by George Washington in 1790) (3), which has not been examined for almost 30 years is in need of an overhaul. Before I describe my proposed solutions, I would like to quickly identify some major problems and areas of concern, and provide a quick introduction or refresher course to those who have not examined U.S. intellectual property law recently (or ever.) There are three main areas of "intellectual property" recognized by U.S. law: patents, copyrights, and trademarks. This essay will only be concerned with the first two. Patents, it turns out, are further subdivided into three categories: "utility patents," which cover functional or utilitarian inventions; "design patents," which cover the ornamental or visible aspect of an object; and "plant patents," which cover biological plants such as flowers, grains, mushrooms, etc. (as opposed to manufacturing plants.) Utility and plant patents last for 17 years; design patents last for 14 years. Utility patents require "maintenence fees" be paid 3, 7, and 11 years after the patent is granted, or the "exclusive right" conferred by the patent will be lost. Patents grant a government-recognized right to exclude others from making, using, or offering for sale items containing the patented technology in return for full public disclosure of the technology. To excercise this exclusive right, the patent holder must file a lawsuit against any infringers in order to collect damages and halt their infringing activity. It is not necessary for the patent holder to actually develop, market, or othewise exploit the patented technology. Copyright provides offensive rights granted on the expression of an idea (but not on the idea itself, as does a patent.) Copyrights last for the life of the author plus 50 years, or, in the case of works for hire, 75 years from publication or 100 years from creation, whichever is shorter. Copyright is "issued" magically to any author who creates a tangible work the instant the expression is tangibly expressed, unlike a patent, which must be filed for. The Copyright Office is a part of the Library of Congress, and is separate from the Patent and Trademark Office. The problems with the the United States' current intellectual property laws affect many individuals, groups, and businesses. I would like to focus on two groups who, due to lack of resources, are usually unable to play the intellectual property game effectively to illustrate some of the shortcomings of the current system. The two groups are: 1) independent software developers and 2) independent musicians. These two groups are similar in several important ways: their members tend to have poor distribution channels for their work; their members tend to work either alone, or in small groups (generally under 8 people); and they tend to have limited resources and thus limited access to legal counsel. They also typically are unable to pursue infringers of their intellectual property, or find that they are unwitting infringers themselves, and without deep pockets or a portfolio of intellectual property of their own to cross-license and defend themselves, find themselves swinging wildly on the slippery scales of justice. Both independent software developers and independent musicians tend to view their creations as "art." Software developers work in a purely digital medium, and almost all musicians spend at least part of their time working in the digital domain when the time comes to release an album. (Any use of samplers, Digital Audio Tape, or any release on Compact Disc means at least some work was done in the digital domain.) Since any work that can be expressed digitally (which includes practically everything except sculpture) can be duplicated cheaply and perfectly, and may be excerpted, manipulated, and included in a derivative work without damage to the original, many interesting questions about art, property, and originality naturally arise. Sean Carruthers, an independent musician and co-ordinating editor of The Quill, the student newspaper at Brandon University in Manitoba, stated the following: Both the form that sheet music and magnetic signals on videotape take are totally incidental to the issue of art. The "art" inherent in a piece of music, or a piece of programming, are not something that you can point at. It's something else entirely, something that's "out there". You can't say that the "Mona Lisa" ceases to be art when a blind person is evaluating it. This passage illustrates the debate that naturally arises in the digital art context: the difference (if any) between substance and form. This debate is eerily parallel to the difference between surface structure and deep structure in linguistics. (Oddly, elements of theoretical linguisitics surface all over the place. There are strong ties between linguistics, and compiler and information theory. Perhaps it is because the way we use language colors the way we think.) The distinction between surface structure ("traditional grammar") and deep structure (phrase-component structure--for example, sentence rewrite rules from compiler theory) is the distinction between an idea and its realization. For instance, surface-wise, the sentences "The demonstration took place on Sunday," "They demonstrated on Sunday," and "They held the demonstration on Sunday" are all different, being composed of different numbers of words, phases, subjects, verbs, etc. Deep structure-wise, they are all semantically equivalent, and the exact expression is incidental. One might even say that the sentences would remain deeply equivalent when translated to other languages.(4) The reason this is relevant is because the sheet music and magnetic signals, both representing the same piece of art, are surface-realizations of the same "deep art." In most cases, artists want to protect their copyright on their "deep art," which would include all the "surface realizations." However, when computers or digitization enter the picture, two difficulties crop up: 1. Artists who desire to manipulate surface structure or the surface realization of other people's "deep art" (or the even just the medium on which it resides), possibly as part of their own art, can do so easily, and can produce large numbers of surface realizations quickly and cheaply. 2. Surface realizations have become modular (or "biteable") to a degree never before possible. Additionally, digital tools are now cheap enough that anyone who really wants to can give "art" (whatever it is) a go. The best way to learn is to practice imitation to hone techniques. It is now suddenly possible to come up with some pretty neat (but highly derivative) art without years of development of either technique or the artwork itself. The upshot of all this is that the two kinds of protection available for publically available works -- patents (for deep structure) and copyrights (for surface structure) are ceasing to function as the definition of art moves to encompass both "deep art" (which is concept-oriented) and new kind of surface art (such as concept-oriented surface structure manipulation.) Where does the line get drawn? What is fair use? How much originality does a work have to exhibit in order to be considered new? 100% doesn't seem to be the correct answer. Neither does 0%. The way things are going, it looks like Island Records' lawyers are going to be the ones who decide. This is unfortunate. A possible alternative is to embed "deep signatures" in a piece. Anything an artist thinks is original or worth protecting would have embedded within it a digital deep signature. If another piece of work that references, or is derivative of, a "signed" work, contains a reconstructable copy of a deep signature then there is a "reference" which requires permission (at the very least,) and possibly that royalties be paid to the original artist. If the signature is not reconstructable, then either 1) the bite has been manipulated beyond being recognizable as the original artist's work, and is therefore "original" or 2) is too small a bite to matter. Unfortunately, the technology to embed robust digital deep signatures in a work without negatively impacting the quality of the signed work is not yet available. At a certain level, music, art, programs, etc, are all the same -- data. The distinction between ideas (which are covered by patents) and particular expressions of an idea (which are covered by copyrights) is disappearing as more and more things (audio, video, databases, etc.) move into the digital domain. The question of what is patentable or copyrightable and what constitutes an infringement becomes ludicrous at some point. Do you measure audio infringement in the time domain? As a number of bytes? What about "look and feel?" What if I take your copyrighted audio data and do something with it in the visual domain? What if I take your copyrighted C source and transform it by running it through a compiler on a machine that you don't support? How is that different? Should "style" be patentable? Why should it be possible for someone to copyright or patent a set of data that come from a natural process (using a heartbeat as a bass track, for example.) The whole issue is a mess because the intellectual property laws that we use now were never designed to handle digital data, or ideas in an industry which goes through a complete development cycle every five years. Copyright and patent laws are in need of serious, serious reform. To illustrate the extremes at which current intellectual property laws provide no assistance, consider my band's song, "My Favorite Food is Salt," which is 1/44100 of a second long, consisting of the 16 bit value $ffd2, or, in the decimal number system more familiar to most readers, 65490. It is a valid digital sequence (16 bits in length) that will, when given to the right decoding system (such as a CD player's CODEC hooked to an amplifier,) always produce the same "sound." Once I wrote this number down, I was "magically" granted a copyright on it, the same way as is someone who writes down a sequence of notes on paper sheet music or a poem on a napkin. However, the value 65490 has been used on countless compact discs and DATs already sold commercially; having a copyright on it it like having a copyright on the letter 'N'. This is obviously ludicrous. This is exactly how software developers feel when someone patents the use of the exclusive-or operation to place a cursor, (see patent 4,197,590) or using hashing to speed up a compression/decompression algorithm (see patents 5,051,745 and 5,049,881) or even to patent whole classes of data compression algorithms (see patent 4,464,650.) There are also other intellectual property problems which are not often discussed. They include, but are not limited to: - Artists, authors, and inventors can sign away all the rights to their inventions for far less than they are worth, and lose all control of their own expression or invention. This is currently legal, but hardly seems fair. - Companies or other organizations can purchase or otherwise aquire patents and press lawsuits against artists, inventors, and authors without ever necessarily producing anything themselves. They can also aquire large numbers of related patents and effectively stifle a technology. This "patent holding company" arrangement is also currently legal, but is defintely not in the best interest of the public. - Patents and copyrights last too long for many technologies. A 17-year monopoly on a software technique is far too long, and the 50-year minimum copyright length is holding back the development of digital libraries and may be indirectly causing some material to be lost forever. In an article about the future of libraries in the February 1993 issue of _Wired_ magazine, John Browning writes, "Joseph Price, the head of technology at the Library of Congress, estimates that each year, 80,000 of the items on its shelves become so brittle that their pages can no longer be turned."(5) - The special quirks of recent technologies, such genetic and biological engineering and related technologies, are not addressed specifically within the current intellectual property framework. Should copyrights or patents be available on found or engineered human DNA? If so, does the original "holder" of the DNA have any right to royalties or a share in the ownership of the property? What about genetically engineered semi-aware organisms? I believe that all of the above issues can be, should be, and must be addressed. I would now like to present an introductory framework for solving the problems and areas of concern listed above. The following framework is based on the following principles: First, "intellectual property" laws have first and foremost as their beneficiaries the general populace. The artist, author, or inventor is next in importance, followed by governments, corporations, and other organizations. Second, protection is granted based on novelty, originality, and non-obviousness. Third, artists, authors, and inventors have an undeniable link to their expression or invention, and should not be deprived of all control and remuneration from their work, even in the case of works for hire. Fourth, algorithms and scientific, physical, social, and related principles are not protectable. Surgical techniques are not protectable. Fifth and finally, the protection on an idea or its expression should expire before the end of the useful life of the idea or its expression in order to spur further development and to give the public a chance to benefit from the discovery once it passes into the public domain. Formally: I Patents Patents grant an exclusive right to develop, sell, and use a novel, original, useful, and non-obvious invention. A modular example of the invention is required on the application, if possible. Algorithms and scientific, physical, social, and similar principles are not patentable. Surgical techniques are not patentable. Styles and "Look and Feel" techniques and inventions are not patentable. Naturally-occuring human genes are not patentable, nor are modified naturally occuring human genes. Completely new human genes are patentable. The invention to be patented will be fully disclosed on the application. The information and directions will be complete enough to allow anyone with the proper tools, materials, technical skill and background to understand and construct the invention. Patents will be granted for inventions which fall within a discipline recognized by the PTO. The types of protection, duration of protection, and requirements of novelty, originality, usefulness, and non-obviousness will vary from discipline to discipline. Initial disciplines will include: (6) Engineering Life Sciences Physical Sciences ----------- ------------- ----------------- Aeronautical Biology Chemistry Agricultural Botany Geology Audio Horticulture Physics Biological Microbiology Ceramic Pharmacology Chemical Other Civil ----- Computer Applied Arts Electrical/Electronic Architecture Engineering Physics Computer Science Genetic Game Design Industrial Graphics Mechanical Industrial Design Medical Miscellaneous Nuclear Metallurgical Petroleum Power Video A procedure for creating and eliminating disciplines shall be established which will take no longer than 6 months to review and issue judgements from the time the procedure is initiated to the time a judgement is issued. Patent inventors always retain at least 5% control over their invention in the case of work for hire, and 15% in other cases. These rights to decision making and royalties, based on gross income demonstrably due to the invention, cannot be signed away or revoked. No inventions arising from partially- or wholly-governmentally sponsored research are patentable. Patents should last 1.5 typical development cycles for the discipline in which they are issued. No patent lasts longer than 15 years. To eliminate patent-holding companies and the stifling of technology, patent holders must exploit their invention or lose their exclusive right to it. After 25% of the life of the patent, the patent holder must either have a product available or be able to demonstrate good faith development toward a product in addition to paying a maintence fee. If, after 50% of the life of the patent the patent holder still has no product available, the patent's life ends and the invention falls into the public domain. Licensing does not count towards this requirement; the patent holder must be actively engaged in progress towards a product. If a product is available at the 50% point, then the holder may cease involvement at the 75% point if products using the invention are available due to licensing of the patent. Special requirements or restrictions may be applied to each discipline. For instance, the genetic engineering discipline may exclude infectious diseases from the set of patentable inventions, or game design may exclude inventions based on regular polygonal playing fields. A patent oversight committee shall be established which will hear appeals to patents which it feels may have been granted erroneously. It will also review the patent requirements every five years. It will also have the responsibility of reviewing applications for the creation of new disciplines and the elimination of obsolete ones. The committee shall consist of seven members elected to their post for a period of seven and a half years. The Patent and Trademark Office will make available to the public, in electronic (digital) form, each year, all the patents and trademarks granted during the previous year for the cost of manufacturing and distributing the information. This information will be available over the Internet, via dialup, and on some kind of archival medium such as CD ROM. II Copyrights Copyrights grant an exclusive right to the duplication and distribution of a complete or mostly complete tangible expression of an idea, referred to as a work. This work must be new. Lists which are ordered alphabetically or in some other easily discernable way, with little or no original content, such as lists of names and phone numbers, lists of words without definitions, etc. are not copyrightable. "Sampling" or borrowing from a copyrighted work is permissible. However, the derived work must be substantially different from original work. When the work is registered with the Library of Congress, a complete uncompressed digital copy must be provided at the time of registration. The Library of Congress will have the authority to distribute the digital copy to other libraries anywhere in the world with no royalties or other fees paid to the author, artist, or inventor. Other libraries may sell complete copies of the work at the discretion and pricing of the author or artist. Libraries may provide access to a reasonable amount of the work for free to the general public for purposes of education and research. Sculpture is exempt from this requirement. Different types of copyrights will be granted for works which fall within an area of expression recognized by the PTO. The type of protection, duration of protection, and definition of infrigement, which will be quantified and qualified, will vary from area to area. Initial areas will include: Audio Graphics (motionless) Mixed Media Text Video (moving) A procedure for creating and eliminating areas shall be established which will take no longer than 12 months to review and issue judgements from the time the procedure is initiated to the time a judgement is issued. Original copyright holders always retain at least 5% control over their invention in the case of work for hire, and 15% in other cases. These rights to decision making and royalties, based on gross income, cannot be signed away or revoked. No work arising from partially- or wholly-governmentally sponsored research is copyrightable. No copyright shall last longer than 25 years, starting the moment the expression takes tangible form. There is no requirement for exploitation of a copyrighted work for maintenence of rights. III Discovery/Serendipidous Rights Discovery/serendipidous rights grant non-exclusive rights to the individuals or countries who are the "owners" of genetic material within their geographical domain that is discovered to be commercially viable. This is to prevent exploitation of the resources of lesser-developed countries, and to reduce the number of species that become extinct. If a biological material is found in a non-human organism and is used by extraction, 40% of the gross revenue from that material shall be paid to the "home" country (country of discovery) of that organism, and 1% to the individual discoverers. Country payments are made in perpetuity, and individual payments last for 25 years. Provisions will be established for equitable payments when countries split into two or more new countries. If the material is later produced in another organism via genetic engineering, 7% of the gross revenue goes to the home country, 0.5% to the United Nations, and 1% to the original discoverers. Country payments are made in perpetuity, and individual payments last for 25 years. Provisions will be established for equitable payments when countries split into two or more new countries. Naturally-occuring human genes are not protectable, nor are modified naturally occuring human genes. Completely new human genes are protectable. This is a living document. Send comments, additions, questions, and corrections to atman@ecst.csuchico.edu. 1. Excerpted from "patent-list" maintained by Michael Ernst, 2. "Electronic Envelopes? The uncertainty of keeping e-mail private." Wallich, Paul. _Scientific American_, February 1993, p. 30 3. "United States Patent and Trademark Office" brochure, published by the U.S. Department of Commerce. 4. Examples taken from "Introduction to Theoretical Linguistics" by John Lyons, Cambridge University Press, London, Englad, 1968. 5. "Libraries Without Walls for Books Without Pages." Browning, John. _Wired_, February 1993, Volume 1, Issue 1. p. 64 6. Based on information in "United States Patent and Trademark Office" brochure, published by the U.S. Department of Commerce. p. 5 ------------------------------------------------------------------------------ Author's note: An earlier version of this essay was published by Automatism Press in the softcover book Lend the Eye A Terrible Aspect. Information about this book is available at http://www.charnel.com/automatism/lend.html