October 29, 2002  ·  Lessig

Ted Shelton ends his reply with a nice question: why should the protection for software “be different from copyright property in the first place.” That is the issue on which the only real disagreement lies (the other disagreements are illusory, caused I trust by my own lack of clarity).

Here’s what motivates my thought that copyright gives too much protection to software just now: Think about patents for drugs. There is an active generic market for drugs. Why? Because the patents expire long before the usefulness of the drug does. That means the generics get to free ride off of the invention of the drug companies. But that free riding is a Good Thing. If the patent term is long enough, it has had its effect: it has incented [not really a word but it should be] a new discovery; but after giving the inventor his due (as defined by the term of the patent), the public gets access to the invention “without restraint.” (Story, J.).

Patents for drugs thus strike a balance: the inventor gets a portion of the total value of the patent, and the public gets a portion. And because the public gets the portion equally (meaning there can be competition in the production of the drugs), prices for drugs fall significantly, and competition is enhanced.

My sense is that at 95 years, copyrights for software produce no similar balance. Sure: they produce value to the public to the extent that they induce the creation of new software. And sure: people can reverse engineer software to figure out how it ticks. But both of those “bargains” for the public are much less than the bargain that a drug patent gives the public. (A drug patent too creates a new drug (that may save lives, or reduce pain), AND AS WELL after a period of time, a useable and valuable invention becomes the public. And a drug patent too creates an invention that other people could reverse engineer, but it AS WELL includes instructions (the patent) for how to practice the invention.)

So too is the “bargain” of a software copyright less than the bargain of a copyright for something other than software. For when (or I guess I should say if) an ordinary copyright expires, the text it produced can be copied and actually used. That’s because texts, on their surface, carry all the code necessary to make them run within one natural language. Software is different. When the copyright for Windows 95 expires in 2090, there will be no machine that can run it. It will have zero value then. And indeed, all software written in 1995 will have zero value then, if all that is “free” then is object code. (Sure, there may be emulators that emulate computers of the last century, and they may well be able to run Windows 95, but we don’t need an emulator of the 18th century to read Ben Franklin’s essays. Everything’s a difference of degree, and some differences of degree (like this one) become differences of kind.)

Software copyright thus gives the public less than patents, and less than nonsoftware copyright. That was the motivation for my proposal: software should be “different from copyright property” because the public is not getting the same sort of bargain with software that it is getting with nonsoftware copyright, or with (some) patents.

Thus I proposed two modifications: First, shorten radically the term of protection. I said 10 years, but I’ve no magic in that number. Could be shorter. Could be longer (slightly). The point is the term should be short enough that there is something valuable at the end of the bargain that others can build upon. Second, make sure there’s a translatable text at the end of the bargain so that there’s something others actually could build upon. Thus the escrowed source code. Two changes designed to create more of a bargain in the context of software, so the public could benefit from more public domain code, and others could more easily build upon formerly copyrighted software.

Now one could well say, “but it’s my property. I deserve it for ever. No reason you should force me to give it to the public after 10, or 95 years. I created it. I get it forever.” But then you would have to say the same thing about drug patents. And you would also have to amend the constitution. For again (and this is why I insist it is just confusing to use the word “property” here):not all “property” is alike (even if all “property” gives what Ted calls “ownership”). While the constitution says that if the state takes your property, it must give you “just compensation” (Amendment 5), the same constitution says that if the state gives you (what we call) intellectual property, it MUST take it after a “limited time” without compensation. So you may well be against limited times, and the bargain with the public implicit in that. But my argument is grounded in the view that the monopolies (“exclusive Rights” is the constitutional text) the government grants in the name “promot[ing] Progress” should be balanced in the way patents are, and copyrights used to be.

Two other nits on Ted’s response.

(1) We’ve converged on a description of the kinds of protection the law might grant software under the proposal I’ve outlined: (1) the modified form of copyright (shorter terms, escrowed source), (2) if not (1), then some protection against simple mechanical copying of object code, (3) if not (1) or (2), then trade-secret. This structure says: the state gives you more protection the more you give the public after a limited time. Whatever the details, that’s got to be the form.

(2) We’re nowhere close to an agreement about the mystical difference between atoms and bits, but I don’t think it matters to the argument above at all. I will just note this: Ted makes lots of the idea of the government holding the source, and then giving it away after the term expires. But there is nothing new or special in this. Until Hollywood got a nice exemption from this, the government required, e.g., deposits of films that were copyrighted for the sole purpose of assuring that after the copyright expired, there would be a source for others to come and copy. Obviously, the cost of copying is greater, but here’s the point about economics that we are just not connecting about: so long as all competitors face the same cost, why does it matter that the cost is $1 or $100. The product will be sold at the marginal cost. This is what the competitive system is all about. Or put differently: would the complaint go away if the government charged everyone wanting a copy $100? Or put differently again: I understand there is a difference between atoms and bits: the question I am asking, and not yet seeing an answer, is why does it matter to the economics. Some inventions are easy to copy after the patent expires (the Cotton Gin); some inventions are hard (drugs). Some copyrighted work is easy to copy after the copyright expires (a novel); some copyrighted work is hard to copy (a 1930 film). But whether easy or hard, the economics is the same.