Laws Should Adapt to New Forms of Intellectual Property, Long Says

October 16, 2003
Prof. Long
Long discussed a recent working paper, the second in a series about the contributions of information theory in understanding intellectual property.

The recent crackdown on students downloading music from the Internet has garnered increased scrutiny of what "intellectual property" means, and for a good reason: the laws are growing harder to apply and understand when coupled with the growing field of products protected by such laws. With businesses seeking patent protection for hard-to-classify goods such as business methods, the costs of understanding and using intellectual property law could increase unless regulations adapt to these new forms of property, said law professor Clarisa Long at a Student-Scholarly Lunch held Oct. 13 at the Law School.

"If it's too hard for people to figure out what the legal boundaries are, they just won't respect them," Long said.

Long defined "information costs" as the costs involved with understanding whether or how a product is protected by copyright or patent laws, whether your own product infringes on another copyright or patent, and whether you can build on an existing protected product or negotiate for rights to the product. With the increased complexity of protected goods, "it's important to have rules that help us to understand these things."

Long suggested that when it is feasible for owners of intellectual goods to describe what is protected, legal rules that require owners to do so can make it easier for everyone else to understand what they shouldn't copy. But when it isn't feasible for owners to describe the goods, such as when the protected qualities of the product are subjective, laws shouldn't require owners to do so. In this case, people won't be informed of what's protected, which makes it harder for them to avoid infringement. When people know what is protected, holding them to a standard of strict liability for infringement makes it easier to administer the system. When people aren't aware of what's protected and it's difficult for them to determine what is protected, then letting them off the hook for innocent infringement can save them the expense of trying to figure out what they shouldn't infringe.

Long said low information costs are traditionally associated with what she called paradigmatic patented goods — tangible objects like books or widgets, where you can see by looking at the product what creative expression it holds. But fixation — for example, a book is fixed in a tangible medium with two covers and pages — "is starting to prove to be a problem … because what do you do with software?" Long asked. "Courts know they have to shove these new technologies in this fixation requirement… [but] you don't know what the software is by looking at the hard drive [where it was copied].

"It occurred to me that there was something else going on here that wasn't expressed by the theory of selling and distributing goods," she said. If we could connect protected property to the right kind of legal structure in a way that minimizes information costs, then it would be easier for everyone to avoid inadvertent infringement, which would mean fewer people would get sued.

Patent laws provide bright-line exclusionary rules, while copyright laws are more nuanced and complex, with many ambiguities, Long explained. To receive a patent, requestors must provide a drawing or picture of the product, which reduces information costs for others trying to understand the product. With a tangible product verified through objective means, it's easier to create bright-line duties of avoidance.

Copyright laws, however, don't require those seeking protection to disclose to the world what their copyrighted good is. Congress eliminated the requirement for copyright registration in 1976 because it proved too difficult to track. Every time people create something, the result is eligible for copyright protection and the burden of avoiding copyright infringement affects many people. "We say, 'ok we'll let you off the hook if you duplicate someone's work and had no prior knowledge of that work.'"

But potential patent law violators can't use this independent creation defense, although true independent creation is more likely and overlapping inventions are more frequent in patent law, Long said. After all, the kinds of people who are likely to create patented inventions are people who have specialized knowledge in the field. It's less burdensome to require them to make sure someone else hasn't created their invention first. In copyright, however, it would not be feasible to require people to make sure they were not duplicating someone else's work every time they wrote something down or drew a picture, for example.

Many goods that have recently been allowed to be patented, such as software or business methods, have grown harder to describe in clear terms, and they also affect more people. Business method patents usually have a connection to the Internet, or how to set up software and structure business.

"Anyone in business has to start worrying whether or not they're going to violate a business method patent," Long said.

The problem is made even worse by the fact that businesses often get patents for reasons that have nothing to do with wanting protection for the underlying technology, Long said. Market observers watch the number of patents businesses acquire and may deem a company "most innovative" based on their patent portfolio, encouraging companies to file patents whether they need to or not.

The problem is "patent attorneys realize that it is in their best interest not to make things easy for other people to understand." They want to write patents that are strong enough to stand up to litigation, but ambiguous enough that they can later plausibly be interpreted to cover more ground than the inventor originally had in mind.

A recent trend has been for lawmakers to designate special forms of protection for new kinds of technology — for example, semiconductors — requiring businesses or inventors to understand more laws and regulations. With such statutes growing more complex, legal costs increase further — especially when "nobody knows what's going to happen after the judge has breakfast."

Long tempered her argument for better laws by noting that private agreements or contracts may be able to provide the same protection as patent law in some cases. "We shouldn't have the hubris of saying property law solves everything," she added. In fact, "the vast majority of patents are never worth anything. The vast majority of patents are never enforced."

And despite the explosion of intellectual property in the last 20 years, "statistically, the majority of inventions patented today are fairly simple machines and widgets."

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