September 13, 2002 · Lessig
Ted Shelton has some very thoughtful and balanced criticisms of my criticisms of “opaque creativity.” He writes that I am wrong:
that IP creation in the past was always transparent and that today we have a new problem of obscuring production or presentation. Coca-cola, for example, has never disclosed their recipe for Coke — Would Lessig compel them to disclose this recipe? Is this the kind of transparency he is looking for?
It’s a great example, but I think it cuts the other way.
Coke has a trade secret protecting “Coca Cola.” Trade secrets are forever — or until someone reverse engineers them. Patents and copyrights were devised to get us something more than secrets: their purpose was to induce the inventor to put the invention into the public domain. As the Supreme Court said (unanimously) in 1989, “ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.”
How? By giving him a limited monopoly over the invention, afterwards the ideas become free for anyone to take.
Patent law is (or was) all about this. To get a patent, you have to describe the invention in a manner that anyone trained in the field can copy. The patent itself was a “here’s how to copy my invention” document. (Patent lawyers over the past two hundred years have nicely perverted this — it’s now practically impossible to go from the patent back to the actual invention. But that was the original purpose.) It was a device designed to eliminate “opaque creativity” by buying off the inventor with a “limited time” monopoly.
My proposal is a compromise between these two extremes. The law has got to be generous enough to get inventors to opt away from secrets if the law is to induce inventors to reveal their stuff to the public domain. But it has also got to be balanced enough to assure that the invention does actually get to the public domain. There’s no reason for the state to be handing out monopolies unless the state gets something more than what it would get if people used secrets (and “more” here means more than simply more code).
So I say: give the inventor of code a relatively “opaque” monopoly for a truly limited time — 5 or 7 year terms, renewable to 10 or 14 years if the inventor wants. But as part of that bargain, require that the inventor escrow the code, so that at the end of the monopoly, the public gets something useful contributed to the public domain.
I’ve heard useful arguments against this. Some say object code is transparent enough. I think not, or at least, not for us mortals. Some say the public gets its due with the program itself. No doubt, the public gets alot. But the whole purpose of the clause in the Constitution that says that Congress’s power is to “promote the Progress of Science” is to induce a spread of new learning. If the government is going to be handing out monopolies to authors and inventors, and expending significant state resources to enforce their monopolies, then a bit of learning, 7 or 14 years later, is not a terrible price to pay.