Posted on February 23, 2012 in copyright, IP, Patent by Comments Off

Last week, the Washington Post reported that the Smithsonian Institution had acquired historical materials from V.A. Shiva Ayyadurai, the inventor of e-mail. One problem: As TechDirt points out, lots of knowledgeable people deny that Mr. Ayyadurai actually invented e-mail.

TechDirt’s article discusses who actually invented email, and why Mr. Ayyadurai’s claim is false. This post focuses on how the dispute illustrates how intellectual property law can throw a wrench in the way people outside of the legal system come to conclusions about issues of creation, authorship, and invention. Responding to comments about its article, the Washington Post issued a “clarification” reading thus:

A number of readers have accurately pointed out that electronic messaging predates V. A. Shiva Ayyadurai’s work in 1978. However, Ayyadurai holds the copyright to the computer program called“email,” establishing him as the creator of the “computer program for [an] electronic mail system” with that name, according to the U.S. Copyright Office.

This is akin to saying “hamburgers predate Ronald McDonald’s work, however, McDonald holds the copyright to a clowning routine, involving the production of hamburgers, called “hamburger,” establishing him as the creator of a ‘clowning routine for placing beef patties between pieces of bread’ with that name.” More than that – it would seem that, at the Washington Post, this reasoning would support a claim that McDonald invented hamburgers.

The TechDirt article notes that the non-clarifying clarification appears to conflate copyrights with patents. The Washington Post, in that case, would be confusing invention with authorship, which is somewhat alarming, coming from a newspaper.

The Post’s description of Mr. Ayyadurai’s stance on intellectual property issues is similarly disheveled. Mr. Ayyadurai says, “I fundamentally do not believe in the patenting of software. It would be like Shakespeare patenting the tragic love story.” He “prefers copyright, which allows others to innovate using the technology.” The first position is relatively uncontroversial, even though it ignores the fact that Shakespeare never could patent the tragic love story, at least not in the United States, and that American courts have, in theory, never embraced software patents that embody nothing more than abstract ideas without concrete application.

The second position, his preference for copyright, is more problematic, because copyright does not protect, or even address, technological innovations. Any usefulness, or utility, described by a copyrighted work must be patented in order to be protected .What copyright protects is individual, singular expression. In other words, it prevents others from appropriating the language an author uses to express a concept or idea. Shakespeare could stop others from copying Romeo’s monologue at Juliet’s balcony, not the idea that a hormonal teenage boy mght do romantic but embarrassing things to woo a girl. Similarly, copyright in software prevents copying, not the use of any innovations described.

The Post also comments that, “by pursuing a copyright on his email work, Ayyadurai opened it up for use, but with credit.” Copyrights are not pursued as patents are; all works of authorship are protected by copyright, whether or not the author registers his work with the Copyright Office, or even places notice of copyright on his work (the © symbol, for instance). Registration is really just a way to ensure that the author is able to sue for money damages should infringement occur. Also, a right to attribution (crediting the author) is not inherent in American copyright law, except in certain cases involving visual artists.

When legal concepts seep into social discourse – here, by underpinning the Post’s assertion that Mr. Ayyadurai invented e-mail, they interact with and modify non-legal concepts. In this case, to have invented something is equated with getting a copyright. This is wrong, as a matter both of law and of plain language. It points to a failure of intellectual property law as a mediating force between creators and the public at large – if no one, not even knowledgeable groups like the Washington Post, really understands what patents, copyrights, and trademarks are, or if misapprehensions such as those illustrated above become common, then how can IP law really incentivize creation and disincentivize misappropriation? It can’t – it simply breeds costly and inefficient litigation that settles specific cases, without clarifying the law for other parties. Shouldn’t laws that encourage technology, literature, and progress in general do better than that?

Posted on February 6, 2012 in IP by Comments Off

Two recent developments of interest for those interested in copyright law: The Association of Research Libraries (ARL) recently unveiled their new “Code of Best Practices in Fair Use for Academic and Research Libraries,” and the Supreme Court handed down its decision in Golan v. Holder.

The Code is an excellent overview of the position academic and research librarians take with respect to the interaction between their mission and copyright law. It does, however, take a more aspirational than legally pragmatic view of fair use issues. For instance, it states that “[f]air use is a user’s right.” Though it is certainly true that fair use is an important legal doctrine, and close to the core of any analysis of U.S. copyright law, it is not actually a right given to users – it is an exception to a right given to copyright owners, an affirmative defense that may cure an otherwise infringing use. Despite this prescriptive bent, the code is a great, example-based way for nonlawyers to engage with fair use issues.

The decision in Golan upheld the removal of a number of works from the U.S. public domain, the result of lawmaking designed to bring the U.S. into alignment with the requirements of the Berne Convention. Bracewell & Giuliani have published an analysis of the case that sets out a core component of the Court’s holding: First Amendment concerns do not really come into play, in the copyright context, unless either the idea/expression dichotomy or fair use are threatened.

Thus Golan gives Congress broad discretionary power over copyright, enough to cut into the public domain. At the same time, it is a reassurance that the fair use defense is and will remain a central feature of American copyright law. The Code of Best Practices, despite presenting a somewhat idealized notion of fair use, is a proactive step towards intellectual engagement with a legal doctrine, by the professionals that have the greatest stake in its continued viability. As copyright terms extend and the public domain shrinks, a continued – and aggressive – discussion of the contours of fair use will be critical in ensuring that culture remains accessible to all.

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