Who benefits from the technology boom? To a great extent, this question is addressed by laws governing intellectual property. The essential motivation for such laws, "to promote the progress of science and useful arts," is stated in Article I, section 8, of the U.S. Constitution. The simplicity of that basic policy and the uncanny foresight of fiction writers and futurists could lead us to believe that our technological progress has been part of a carefully scripted master plan. The details of intellectual property policies, however, are not so simple, and developments in this area of the law over the past two decades have failed to keep pace with our expanding technology.
Patents and copyrights are two well established forms of intellectual property. Traditionally, patents have been used to protect inventions of physical devices and processes, while copyrights cover artistic works. The basic issue of which form-- patent or copyright or perhaps some new hybrid-- is most appropriate for computer software has yet to be resolved [3]. Questions about whether copyrights on software cover source code, object code, or the "look and feel" of the user interface have been settled in favor of allowing copyright protection, but software patents continue to be controversial. The debate over business model patents has been particularly contentious. In 1998 the U.S. Federal Circuit Court of Appeals decision in the case of State Street Bank & Trust Co. v. Signature Financial Group, Inc. specifically overruled the business model exception to patentable subject matter [4]. Following this decision, the Patent Office removed the references to the business model exception in its patent examination guidelines, and a flood of applications, most for methods of doing business on the Internet, has followed. Typical of the negative commentary on business model patents is that they not only call into question the traditional standards of patentability, but also raise policy questions about who should reap the benefits of the Internet as a vehicle for commerce [5]. There has even been legislation introduced that would change the procedures for patenting business methods [6].
The Internet and accompanying technology have not only focused attention on the protection of software, but also on the viability of copyright law for protecting more traditional copyrighted works such as sound recordings and motion pictures. The ease with which such works may be copied and published on the Internet has raised considerable friction between copyright owners and users. In many ways, the suit against Napster [7] is emblematic of this conflict. Napster is an Internet-based business that enables individual users to copy compressed music files directly from each other's computers. Although Napster itself has not been accused of copying, it has allegedly engaged in contributory copyright infringement because it enables others to illegally copy protected works. One commentator has suggested that the inevitability of advances in technology has become an excuse for users to ignore the rights of owners [8]. More practical is the observation that, right or wrong, owners will doubtless be forced to adapt to new ways of doing business [9].
Even with all the controversy surrounding these questions, few in the media or the legal and information technology professions have recognized a broad fundamental issue. A law professor who frequently writes on legal and social theory, James Boyle argues, "[I]ntellectual property... provides the key to the distribution of wealth, power and access in the information society." [10] Clearly, the policies in this area can have profound effects on both the monetary rewards for individual efforts and the continued growth of the software industry. Students entering a computer science program might have an interest in intellectual property not only because of its importance in their profession but for other reasons as well. A personal relationship with someone who has gotten a patent might be a perfect example of one such experience. Whatever the motivation, an introductory course in intellectual property could have a positive impact on students by encouraging them to think about how policies affect everyone in society, not just themselves. With the rapid growth of the technology field, it is increasingly important for computer science majors to understand the impact of legislation on the computer industry. Issues such as copyright infringements of computer software, data mining, and file sharing are important topics. The future of many businesses depends on the legislation that is passed to handle these issues and should be paid attention to by people looking to enter the job market in the coming years. With this in mind, we describe here our experience with an undergraduate course in intellectual property for computer science students.
The esoteric nature of patent law is also manifested in decisions by the Supreme Court. Looking at patent cases over the past 50 years, Donald S. Chisum, a professor and author of several books on patent law, has analyzed Supreme Court decisions on two levels. Regardless of its partiality or hostility toward patents in general, Chisum concludes that the standards spelled out by the court for judging patentability have not been helpful, and he suggests that one reason for the poor quality of decisions may be that the quality of scholarly writing on patents is much less than in other areas of the law [13].
Chisum focuses most of his criticism on the clarity of the Supreme Court decisions rather than their pro- or anti-patent stance. This analysis makes sense; the task of deciding policy issues-- whether to favor intellectual property owners or users-- belongs to the legislature and not the courts. It would certainly be cause for alarm if patent attorneys, who have a vested interest in encouraging the filing of patent applications, were able to dictate such policies.
A somewhat different view of the ongoing conflict over intellectual property policy than as one between owners and users of protected works is suggested by Yochai Benkler, another law professor. Noting a trend in legislation and court decisions that favors the owners of large collections of protected works, Benkler contends that the real battle is between traditional "industrial" producers of information products and Internet-based peer producers. Large software vendors, for example, make extensive use of mass-market licenses for off-the-shelf software products. Such licenses are often called "shrink wrap licenses" because they state that the end user indicates acceptance of their terms by opening the sealed package in which the software disks are sold. Major legislation in this area includes the Uniform Computer Information Transactions Act (UCITA), a uniform state law that purports to validate such licenses. Federal legislation cited by Benkler includes the recently enacted Digital Millenium Copyright Act, which attempts to regulate access to encrypted copyrighted works, and a proposed bill that would extend copyright-like protection to information in databases [16].
It should come as no surprise that the commentators who appear most concerned about the trends just described are attorneys in academia, while practicing attorneys write favorably of pro-owner developments. The debate over UCITA provides further insight into the motivations of the parties to the broad discussion on the relative rights of software users and producers. A generally favorable review of Virginia's recently passed version of UCITA is given by Scott Spooner, a practicing attorney. Spooner characterizes UCITA as simply a clarification of the law regarding shrink wrap licenses [17]. By contrast, Barbara Simons, former president of the ACM, points out many of the pro-vendor aspects of UCITA, most notably how it allows software manufacturers to disclaim all liability for damage caused by defects in their products [18].
Although patent attorneys and examiners in the patent office are technically trained, the judges and legislators responsible for formulating our intellectual property policies often are not. By the same token, professional programmers and software engineers who lack legal training are unlikely to offer useful input on who should control the fruits of their labor. One way to insure a more balanced debate on intellectual property issues in the future is to introduce computer science students to intellectual property concepts.
The treatment of intellectual property in undergraduate computer science programs, if it is dealt with at all, is relegated to a single course in ethics and social issues. In many programs, a single credit hour seminar is offered with the apparent goal of satisfying accreditation criteria for oral and written communication skills and social and ethical implications of computing [19, 20]. A somewhat more comprehensive treatment of intellectual property has been suggested in a course proposal on computer law by David Kay [21].
We believe that a more comprehensive study of intellectual property can have an important influence in the career choices of computer science majors, but it should not necessarily be a required part of the curriculum. At the College of Charleston, the development of communication skills and the treatment of ethics and social issues are integrated into the entire program of study, and are particularly emphasized in a capstone course in software engineering. Computer science students who are interested in patents, copyrights, and other types of legal protection for software should be able to learn about them in an elective course. To that end, we have embarked on the development of a course entitled "Intellectual property and information technology." At present, the course is being offered on an independent study basis. It is hoped that the course can be offered as a regular computer science elective in the future, and that it may generate interest among students majoring in math, other sciences, and perhaps business. An excerpt from the original course syllabus follows:
Illustrated below are some of the activities and cases researched by the student as of mid-semester. Examples of materials the student used to prepare preliminary reports and a brief statement of the main concepts learned are included for each summary.
One of the completed activities was a patent novelty search. This required going to the USPTO website and researching patents currently on file. On the site, the classification index [22] was used to find patents that were similar to the invention being researched. As similar classifications were found, specific patents were investigated to look for similarities between the claims made by the researcher and those currently on file.
A second useful application of the USPTO website was the patent boolean search page [23]. By entering different phrases in the various available fields, users can quickly locate specific patents that interest them. This tool was used to find the "one click" business patent owned by Amazon.com. Once found, the wording and structure of the document were studied. This exercise was helpful in understanding what is involved in writing a patent.
Other course activities required looking up court cases pertaining to software intellectual property issues. One of the best websites found for looking up particular cases was GigaLaw.com [24], which has an extensive library of cases available. In the Diamond v. Diehr case [25], Diehr pursued having a rubber curing process patented, which used a computer-stored program in the process. Prior to this 1981 case, software-driven machinery were not considered patentable. This ruling favored Diehr, which set a precedent that allowed patents on processes that include computers.
In the Feist Pubs v. Rural Telephone case, Feist wanted to create a phonebook using telephone numbers that were listed in some of his competitor's phonebooks. The phone company's position was that the phone numbers were protected by copyright and could not be copied and redistributed. The courts ruled in favor of Feist publications, setting a legal standard for the level of originality in copyrights[26]. Feist Pubs v. Rural Telephone is an important case for the information age because reselling public domain data is the backbone of many small businesses.
Apple Computer v. Franklin Computer was a court battle deciding whether operating systems should be allowed copyright protection. Franklin Computers had come out with an Apple computer clone, and it was pre-installing Apple's operating system on those machines. The courts decided in favor of Franklin in the federal district court, but Apple won on appeal [27], establishing copyright as the standard intellectual property form for protecting computer software.
Biography
John P. Kozma is a visiting professor in the Computer Science Department at the College of Charleston and special counsel for the law firm of Barnwell Whaley Patterson and Helms. His research interests are software requirements analysis and natural language analysis. He received a JD from the University of South Carolina and a Ph.D. in computer science from Tulane University. He is a member of the ACM and the IEEE. Contact him at kozma@cs.cofc.edu.
Thomas W. Dion is a Computer Science major at the College of Charleston currently enrolled in an independent study course with Dr. Kozma, Intellectual Property and Information Technology. Contact him at diont@edisto.cofc.edu.