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. Ed Protocol
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?