October 22, 2002  ·  Lessig

Ted Shelton continues to do web logging credit in his careful and fair reply to my reply to … well you get the picture. And more importantly, he does this space credit for his patience in waiting for a reply. I apologize for the delay, but because his last post has helped me understand and frame this a bit better, the conversation continues.

First, let’s get rid of a point on which there is absolutely no disagreement. I had said the ultimate question is what system would create the best incentives to “create and spread knowledge.” Ted adds to this that in his view, there is an important “economic objective” built into that. I absolutely agree. The very best thing that copyright does (in my view) is enable small creators (coders as well as writers) to operate independently of patrons by giving them an economic incentive to create. But for copyright, many of these creators would only create as commissioned. This is one of the great points made by Neil Netanel in a long but wonderful piece in the Yale Law Journal, and it is an important point for those of us perceived to be “anti copyright” to repeat again and again.

I, in fact, would go further than Ted about this. It’s not just, as he says, paraphrasing Churchill, that capitalism is “the worst form of incentive, except for all the rest.” I would say it is positively great — so long as balanced by other sources of creativity, and balanced in the traditional ways. So here, at least, unless Ted wants to go pinko on me, we have complete agreement.

Ted’s second point does require me to state more clearly the kind of regime I imagine. I had said we shouldn’t give “copyright protection” to code unless a copy of the source code was deposited with the copyright office, and that after the term expired, that source code would then be made available to the world. If the coder didn’t like this trade (protection in exchange for the creation after the term expired), then I said the coder could rely upon trade secret law to protect his code. That, I said, was close to the offer patent law makes: In exchange for a limited term monopoly (20 years) the inventor must describe his invention clearly enough so that others could copy it. The difference is that my scheme hides the description for 10 years, while the patent system makes it available 18 months after the patent is applied for. (Thanks to David Makman for correcting my careless mistake).

Ted replies that “without the legal status of property,” however, this is no real option, because the code protected by trade secret law could still be “endlessly copied … with no need for access to the” source code. And hence, even if the source code were protected, there would be no protection for the real value of the program.

Agreed. But we could hammer out a real agreement if we could give up this word “property” for a moment. All “property” is simply a bundle of rights associated with a particular rights holder and a particular object, whether virtual or real. These rights differ radically across “properties,” and it is therefore sometimes misleading to speak of them as if they are the same. Thus, e.g., a patent, like a toy pony, is a form of “property” in the sense that with both, the owner gets to decide under which terms to alienate the property, and if someone invades that property right without the owner’s permission, there is hell to pay. But a patent is obviously a very different kind of “property” from a toy pony because after 20 years, the property is automatically the public’s, but after 20 years, a toy pony is still private.

So, without using the often-misleading-word “property,” here’s how we might restate where I believe there should be agreement. I would still not give “copyright” protection except upon the deposit of the source code. But note, “copyright” protection protects against much more than simple copying, and it is that larger bundle of rights that I would deny a coder unless the source code were deposited.

I would allow the coder the protection of trade secret law, and it may well make sense to supplement that protection with a protection against mechanical reproduction of the digital object — such that the effective protection was against simply duplicating the code and distributing it free of any restriction. That would give the coder a real choice (between copyright and trade secret law) but also give the public something more for the more extensive set of rights that copyright law provides.

This twist to what I said before may mean we should balance the rights a bit differently still. This “mechanical duplication” right need not run long, and should not run as long as the copyright. But these are details for experts with slide rulers, not me.

Ted’s third point I’m not sure we can yet agree upon. He insists there’s a difference in kind between the state giving away the source code for a product, and the state giving away the knowledge necessary to make the product. The second is what happens when a patent expires; Ted insists that’s different from what would happen if the state also gave away the source code.

I still disagree. Though I’ve made a career insisting that the digital is importantly different, I don’t think it’s different here.

Ted nicely illustrates his point with an analogy to the cotton gin. He says, “all of the algorithms needed to create a spreadsheet would be the equivalent of the information needed to build a cotton gin. But the implementation, the source code, IS the cotton gin itself. Requiring the software developer to give away the source code is the equivalent of the government giving away a complete working cotton gin to everyone who wants one once Whitney’s patent expires.”

I guess I don’t see what is supposed to follow from this analogy.

One follow-on might be “and this would be bad because it would destroy the ability of the coder to continue to sell the product at all.” If that’s the point, then the same point could be made about many patents. And anyway, what’s the harm from that? The inventor got his monopoly; the public now gets a free resource which before it had to pay for.

But in any case, I don’t believe this would follow for most code anyway. Sure, giving away the source code enables anyone to simply release the product. But that in turn creates an incentive for everyone to invent a better implementation of the product. And as each “derivative” work would be entitled to its own protection, the incentive to improve would be rewarded as well.

So what, Ted, am I missing here? And are we agreed on points 1 and 2?