Jefferson vs. the Patent Trolls

A Populist Vision of Intellectual Property Rights

Jeffrey H. Matsuura

• Publisher: University of Virginia Press
• Year: 2012
• eBook ISBN: 9780813930398
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

Of all the founding fathers, Thomas Jefferson had the most substantial direct experience with the issues surrounding intellectual property rights and their impact on creativity, invention, and innovation. In our own digital age, in which IP has again become the object of intense debate, his voice remains one of the most vital in American history on this crucial subject.

Jefferson lived in a time of immense change, when inventions and other creative works impacted the world profoundly. In this atmosphere it became clear that the developers of creative works and the users of those works often have competing interests. Jefferson appreciated as well as anyone that the originators of ideas needed legal protection. He also knew that innovation was crucial for a nation's economic prosperity as well as its political health, and that rights should not become barriers.

Jefferson was in a unique position to understand the issues of intellectual property rights. His pronouncements on these issues were those not of a scholar but, rather, of a practitioner. As a scientist, author, and inventor, he was a prolific creator. He was also a tireless consumer of others' works. As America's first patent commissioner, he decided which ideas merited protection and effectively created the patent review process. Jeffrey Matsuura profiles Jefferson's diverse and substantial experience with these issues and discusses the lessons Jefferson's efforts offer us today, as we grapple with many of the same challenges of balancing IP rights against an effort to foster creativity and innovation. Without inserting Jefferson anachronistically into the current debate, Matsuura does not shy away from positing where in the spectrum of opinion Jefferson's ideas lie. For lawyers, legal and technology historians, and entrepreneurs, Matsuura offers a fresh, historically informed perspective on a current issue of major importance.

ONE

INTELLECTUAL PROPERTY RIGHTS TODAY A CHAOTIC ENVIRONMENT

Intellectual property rights—legal rights associated with patents, trademarks, copyrights, and trade secrets—are much in the news today. Since these laws form the foundation for technological innovation and associated economic growth, the United States and many other countries around the world currently struggle to enforce intellectual property laws and to modify those rules as necessary to accommodate rapid and dramatic technological advances. The situation is chaotic and unsettled. In this chapter we will review some of the current challenges confronting intellectual property rights management. This chapter places those challenges in historical context, connecting them with similar issues addressed during Jefferson's time. Although the state of our scientific knowledge and the scope of our technology have changed dramatically in the ensuing years, many of the challenges the Founding Fathers faced as they tried to manage the processes of creation, invention, and innovation for the public good remain with us today. For this reason, the practical experience of Jefferson and his colleagues with respect to intellectual property rights management remains highly relevant.

Intellectual property rights provide the legal basis for enabling the creators of original and inventive work to control access to, and use of, those materials. Patent rights are associated with an incredibly wide range of machines, materials, processes, and designs. They provide government-supported monopoly rights to inventors, enabling them to control the manufacture, distribution, and use of their inventions. Copyright protection is provided to original works of authorship, including literary works, music and video recordings, and computer software programs, once those works have been fixed in some tangible form. It controls the duplication, distribution, and exhibition of creative works that have been tangibly expressed. Trademark rights are applied to commercial marks and identifiers that have come to represent and identify, in the eyes of consumers, specific products provided by specific businesses. Trade secret rights are associated with information and knowledge that have commercial value and are protected as proprietary materials by the parties who developed them.

A major part of the challenge of effectively managing intellectual property rights is the fact that the material they govern is often intangible. Although tangible representations of the material exist, the foundation for those tangible assets consists of intangible ideas and insights. Thus, for example, although copyright law protects only the tangible expression of ideas, not the underlying ideas (e.g., the written novel, not the plotline it is based on), those underlying ideas are intangible and highly mobile. Additionally, with today's technology, the tangible asset itself can be converted to electronic form, transmitted, then converted back to tangible form (e.g., online distribution of sound and video recordings). These intricate connections between the tangible and intangible manifestations of intellectual property make it difficult to establish and enforce rational and fair intellectual property rights regimes.

The intangible component of intellectual property connects it to the world of ideas and interpersonal communications. A key aspect of the continuing challenge of effective intellectual property rights management involves the effort to ensure the freedom and accessibility of knowledge and ideas necessary to fuel creativity, while at the same time providing enough proprietary control over the products of the knowledge and ideas to provide economic incentives to encourage transformation of the intangibles into tangible applications.

Today there are important policy challenges with respect to such issues as the extent to which information and knowledge can be proprietary. The complex challenge of determining the extent to which it is appropriate to limit the communication of information and ideas for the sake of protecting proprietary rights associated with intellectual property remains unresolved. There are open questions associated with the extent to which methods of conducting business and other operations (operational practices) should be protected as proprietary intellectual property.

Collectively, intellectual property rights have a profound impact on the creation of original and innovative works. They establish the legal rights available to both the originators and the users of those works. They substantially affect the ability of creators to derive commercial gain from their work. They control the ability of the public to make use of those works. Intellectual property laws provide the legal framework that creates incentives for creation of original works. They also set the terms under which the public can obtain access to those original works. Intellectual property rights set the framework within which creative work is developed and applied.

Today, a great deal of attention is directed to intellectual property rights. Individuals, businesses, research institutions, and governments around the globe are keenly aware of the potential economic value of those rights. Those rights are actively pursued and enforced. Conflicts between owners and users of those rights seem to proliferate daily. Creative works are viewed as important commercial assets. In today's world, they make up a substantial portion of the total value of the global economy, and their share of the world's assets continues to increase at a rapid rate. They are recognized as the materials that drive economic growth and enhance the quality of life. Since it is so highly prized, intellectual property is often the subject of disputes and conflicting claims. The fundamental conflict associated with intellectual property pits the rights of the owners of that property against the rights of users.

Intellectual property rights were viewed differently in Jefferson's time. In the late eighteenth and early nineteenth centuries, there was far less emphasis placed on intellectual property law concepts. Commercial exploitation of intellectual property was a new strategy just beginning to emerge. It was an era dramatically influenced by the principles of the Enlightenment. Methods of scientific inquiry were being formalized. Scientific inquiry, in turn, enabled man to more fully understand nature and mankind's place in the natural order. It was an age of reason, and priority was placed on rational methods of inquiry. Thanks to the insights of Isaac Newton and others, the scientific method of investigation was being widely embraced. It was recognized that man had much to learn about his world, and the scientific method provided the tools to facilitate that learning. Greater emphasis was placed on inquiry and discovery than on control over the knowledge generated by such inquiry.

Jefferson lived in an age of discovery. We too live in an age of discovery; however, our era is also characterized by an emphasis on the ability to control those discoveries. Intellectual property rights provide the key mechanism through which that control is exerted. Several of the most challenging intellectual property rights controversies of today involve, at their core, economic, political, and social concerns that Jefferson and his colleagues understood very well. In Jefferson's time, as in ours, there were ongoing debates about achieving an appropriate balance between proprietary control over intellectual property and promoting the access necessary to encourage continuing creativity and innovation. The factors considered and the methods applied as Jefferson and his peers addressed those concerns are relevant and helpful for us today.

COPYRIGHTS IN THE DIGITAL WORLD

Advances in technology associated with computing, communications, and media have made it easier for virtually anyone to be a creator, distributor, and user of material that is protected by copyright law. In a world of YouTube and peer-to-peer file sharing, thousands of Internet users can copy and distribute copyright-protected material in a matter of seconds, and they can make that material available to millions of people around the world. Users of digital media content have the ability to access that content on a variety of devices. They are also able to make modifications in the original content.

The world of copyright management is far more complex today than it was in Jefferson's time. Jefferson's office of secretary of state served as the first repository of all materials submitted for copyright protection in the United States, a function now performed by the Library of Congress. Although that function was purely administrative, involving collection and retention of copyrighted works, it provided Jefferson with an important role in the operation of copyright law in the early years of this country's existence. On a personal level, Jefferson's love for books brought him into direct contact with the publishing industry, an industry that was both transforming and being transformed by the development of copyright principles. Management of copyrights has been made substantially more challenging today by the technological changes that have taken place in the years since Jefferson was involved with copyrights.

Among the rights granted to creators of original work under copyright law are the rights to copy the work, to distribute it, and to exhibit or perform it. Today's digital media and communications technologies make those basic functions easy to perform and readily accessible to virtually all users of computing devices and the Internet. A wide range of devices now enable users to create digital media files that make text, graphics, images, motion video, and sound recordings compatible with Internet storage and distribution. Anyone can now create their own digital media content and post it on the Internet, making it available to a global audience. Each individual is now capable of being a media content creator and distributor. More troubling, each individual can now easily and quickly find, copy, and redistribute media content created and owned by others.

One response to the rise of the Internet and the associated loss of control over copyrighted material is ever more aggressive enforcement of the legal rights associated with copyright. This approach has been adopted by many media companies, particularly those in the music recording and motion picture industries. These companies actively monitor use of their content online. When unauthorized use of material is discovered, they aggressively enforce their rights of control over the content. This strategy relies substantially on use of the legal system to enforce copyrights. It has led to the somewhat unusual situation in which large media and entertainment companies now routinely take formal legal action against their customers, alleging unauthorized use of copyright-protected content. The result of these enforcement initiatives is nearly daily new reports noting that a music recording company or a motion picture production studio has sued some individual user for copyright infringement.

Enforcement of copyright in digital media continues to become more difficult. As more content is made available in digital format, more people have access to it. In turn, each user can duplicate and share the content, offering it on peer-to-peer file-sharing networks and posting it on Web sites such as YouTube that provide venues for individual users to make content available to other users of the site. Copyright essentially governs the ability to duplicate, distribute, and reuse original works of authorship. The Internet and a wide range of information and telecommunications technologies make those actions highly user friendly. This is the core of the challenge to copyright offered by today's technologies.

An increasingly popular response to the changed environment presented by the Internet and digital media content is the use of open-access strategies. In part, these strategies are based on a realistic assessment of current conditions. Given the capabilities of today's technologies, one must essentially assume that one's intellectual property will be subject to widespread access and use that is not consistent with proprietary control. If people are going to be probing your intellectual property, modifying, it and redistributing it, a realist looks for ways to survive in that changed environment. Open-access strategies provide one set of methods for dealing with the challenges to proprietary intellectual property control.

The most widely known of these approaches is the “open-source” software movement. When computer code is distributed using an open-source license, licensees have the ability to access and modify the source code at the heart of the software. They are free to add to or change the source code in ways that make the software better suit their needs. The only requirement placed on the open-source licensee is that if the licensee chooses to distribute the modified software, the licensee must make its modified version of the source code available on an open-source basis as well. The open-source system provides the software users with the ability to alter, customize, and enhance the software as they see fit. The process thus expands the universe of people who are working to refine the software and to develop applications for it.

In many ways, the open-source system represents the opposite end of the spectrum from the active legal enforcement approach adopted by many content producers. While those who opt for active enforcement believe that approach is necessary to ensure continued respect for copyrights, open-source proponents sense that enforcement alone, no matter how diligently pursued, will not lead to a satisfactory result. Instead, they have chosen to modify their business model, attempting to find ways to provide and extract value in a dramatically changed copyright environment.

Another important digital rights issue is associated with the distinction between intellectual property and information. The basic issue is, at what point does an aggregation of information become a piece of intellectual property? As collections of information develop increasingly significant economic value, there is growing pressure to permit the owners of those data collections to assert legal control over access to their material. Intellectual property law, specifically copyright law, has only limited applicability to such collections of data, since they generally do not constitute the type of original work of authorship that copyrights were established to protect. Collections of information (e.g., databases that aggregate real estate listings or product retail prices) have been deemed by courts to be outside the scope of copyright law protection. Although those works may have substantial commercial value, they are created through the essentially mechanical process of data collection, not human creativity generating original content.

In the past courts had been willing to provide some level of copyright protection for collections of data. Today copyright protection is generally not available. The trend in copyright law is to consider data collections to be works that do not reflect creative initiative, and thus to place them outside the scope of copyright law protection. However, many jurisdictions now provide separate legal protection for data collections, under legal statute. These laws generally give the developers of data collections a legally enforceable right to require economic compensation in exchange for rights of access to and use of their collections. Although technically not a form of traditional intellectual property law, these data protection rights raise interesting legal issues to the extent that they restrict public access to information.

In a world of widespread digital content, there is both active assertion of proprietary rights and broad sharing of content and collaborative content development. One of today's challenges is to balance effectively those two dramatically different philosophies and strategies. Digital rights management is a topic of intense attention all over the world. A major public policy goal is to strike an appropriate balance between rights of content creators and content users. It is difficult to achieve that balance in an environment where technology continues to evolve in ways that extend the capabilities of both content creators and content consumers.

The intellectual property rights challenges presented by the rise of digital media technologies are, at their heart, challenges associated with the empowerment of the individual. Information and communications technologies have made it dramatically easier for people to create, access, duplicate, modify, and distribute media content. Everyone can now be a creator, consumer, and global distributor of media content. Technology evolving to creatively empower the individual is not a process unique to the Internet age. Jefferson was well aware of the ways in which advances in technology can serve to empower individuals. The challenge of effectively balancing often conflicting interests while promoting continuing technological advances was an issue of concern in Jefferson's time, as it is in ours.

In our time, the technologies presenting the greatest disruptive challenge for copyright law are those associated with digital media content creation and distribution. Past disruptive technologies included the development of printing technology that enabled broader creation and distribution of books and other published material. Although Jefferson's generation had no anticipation of a world full of digitized media content, it was well aware of the debates that emerged as authors, publishers, and the public grappled with their often conflicting interests associated with the enhanced capabilities offered by printing technology. Both the print and digital media technology revolutions forced reexamination of the legal rights of creators, distributors, and users of the content generated by those technologies.

Much of the copyright concern expressed in response to the development of digital media technology focuses on the challenge of managing the conduct of individuals to restrain them from misuse of copyright-protected media content. It is also important to ensure that all individuals who legitimately obtain copyrighted material have the opportunity to enjoy that material to the fullest extent enabled by modern technology. Modern technology offers the capability to enhance the enjoyment that individuals can derive from that content, and the law should not unreasonably interfere with that enjoyment. Thus, for example, when digital rights management technology prevents a legitimate buyer of media content from accessing that content through all the different devices the buyer possesses (computer, television, cell phone, personal digital appliance, etc.), the rights of that buyer have been inappropriately constrained. Digital media technology empowers users. Copyright law should not interfere with that empowerment without just cause.

In Jefferson's time, the law associated with rights in original works of authorship was evolving. A transition was then underway, from a common-law notion of works of authorship as property owned by the publishers of that work in perpetuity to statute-based laws that awarded ownership rights of limited duration to the creators of works. That transition reflected a growing recognition of the need to balance the often conflicting interests of creators, distributors, and users of published works. Jefferson and his peers understood the complexity of balancing those competing interests.

In our time, principles of copyright and other legal theories associated with rights of developers, distributors, and users of creative works continue to evolve. Although the technologies associated with those creative works have changed dramatically over the years between Jefferson's time and ours, what has not changed is the complex nature of the challenge associated with encouraging creativity while also ensuring that the results of creative effort will remain accessible for the benefit and enjoyment of the public at fair and reasonable terms. A critical challenge for copyright law in both Jefferson's time and ours is striking the appropriate balance between the rights of content creators and content users. Both groups must have the ability to enforce their rights with respect to copyright-protected works. Achieving that balance was difficult in Jefferson's time and has become even more difficult today.

MANAGING ACCESS TO CONTENT

Computing and telecommunications technologies facilitate immediate and global sharing of information. That capability has incited tension between efforts to manage proprietary material and the free expression and sharing of information and ideas. One example of this tension surfaced in the context of copyright law protections for antipiracy systems and technologies. In an effort to assert their rights under copyright law more effectively, owners of media content now commonly make use of encryption and other technologies to block piracy, the unauthorized use of copyright-protected material. Modern copyright law includes provisions that prohibit initiatives that “circumvent” antipiracy technologies and practices employed by the owners of copyrighted material. Under copyright law today, it is illegal to exercise the rights granted to the copyright owner without permission, and it is also illegal to circumvent antipiracy measures applied by the copyright owner. It is worth noting that current law makes efforts to circumvent copyright protection illegal even if those efforts do not also include actual misuse of the copyright-protected content.

These anticircumvention provisions have been widely enforced. For example, they have been applied to prohibit use of computer programs that remove or impair encryption programs designed to thwart theft of copyright-protected content such as music and video recordings. However, the anticircumvention rules have been interpreted to have quite broad scope. In addition to prohibiting use of circumvention technology, they also prohibit the creation, manufacture, and distribution of such technology. Accordingly, some forms of computer software and other technologies are now treated as contraband simply by virtue of having the capability to defeat technologies that are intended to prevent unauthorized use of copyright-protected material.

Use of the anticircumvention provisions of copyright law to block the distribution of computer software that can override encryption and other copy control programs associated with digital media products introduces a conflict between intellectual property rights and rights of free speech and expression. Under these circumstances, copyright law is used to inhibit development and distribution of certain forms of computer code. Strong objections to this expansive notion of copyright protection have been raised. There is no doubt that copyright holders have the ability to seek compensation when their material has been misused. It is far less clear, however, that they ought to have the right to block the distribution of computer programs that have a variety of uses simply because those programs can be used to override copyright protection measures. Under these conditions, copyright law appears to reach a point where it inhibits creativity and open expression, a result that seems inconsistent with the basic principles behind copyright law.

The debate over the appropriate scope of anticircumvention provisions ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication Page
• Contents
• Acknowledgments
• Introduction
• 1 - Intellectual Property Rights Today: A Chaotic Environment
• 2 - Jefferson and the Value of Shared Knowledge
• 3 - Kindred Spirit to Scientists and Inventors
• 4 - The First Patent Examiner
• 5 - Jefferson Battles the Patent Trolls
• 6 - Jefferson and the Challenges of Invention and Innovation
• Source Notes
• Selected Bibliography
• Index