administration of intellectual property laws could provide onestop shopping for applicants for protection of computer software. Moreover, it would provide useful cross-pollination of competing systems with a better opportunity to transfer expertise gained from experience in one field, e.g. the patent experience with "reverse engineering" with cable television's experience with compulsory licensing, with the applicability of the "first sale" doctrine in the motion picture industry vis as vis the videotape rental business, the prohibitions against rental of phonograph records. There exists a wealth of models from which to draw analogies and with which to make comparisons, but little administrative experience with doing so. Thus experience gained in one area of expertise might more easily be applied to another, and differences in types of products and services might be more easily ascertained. Administration of the various legal regimes now reside at the state level for trade secrets, within the Department of Commerce for Patents, under the Congress for Copyrights, and within the Office of the U.S. Trade Representatives office for the exercise of international protection within the GATT. Such integration of administration might frustrate the lawyers who specialize in the varying areas of expertise. Nonetheless, it should diminish the costs to providers of computer software reducing prices both in the domestic and foreign markets. Thus benefits would accrue to users through lower prices and to public coffers through the taxation of more successful profit centers. A unified, simplified, and harmonized system of registration and administration could contribute to the economic efficiency of both the domestic and international marketplace for computer software. V. JUDICIAL REFORM There are good reasons for not relying upon the courts to forge new parameters to the law governing computer software. One of the major drawbacks of the present system is that litigation which has overreaching policy implications is decided in a context which is adversarial between particular interests. The court's discretion is limited to facts which may not be applicable to generalization. Human judgment is highly influenced by the equities between the adversarial parties. Congress has a mandate to evaluate the impact of the laws from the perspectives of societal impact, economic efficiency, and national purpose. Nonetheless, the judiciary plays an essential role in the refinement of the laws and steps can be taken to improve the intellectual environment in which judicial opinions are rendered. There has been a long standing argument within the bench, the bar and thoughtful policy analysts over the difficulties which confront the judicial system in handling complex technological litigation. Certainly computer software litigation is one of those areas in which such concerns are especially justified. There are several different levels upon which the problem may be addressed. Current Anne W. Branscomb/Computer Software/November 8, 1989 8 practices include special courts empowered with special jurisdiction over the subject matter, the use of expert witnesses, and the staging of tutorials for judges in courts of general jurisdiction designed to acquaint the sitting judge with the peculiarities and intricacies of, for example, "source code", "object code", "microcode", "semi-conductor chips" and the differences between computer languages such as "Fortran", "Cobol" or "Ada". Such individualized tutorials are expensive, time consuming, and only effective for the particular judges in the case subject to litigation. Moreover, the judges need to gain the expertise at a very early stage in the course of the trial. Indeed, in order to be able to direct intelligently the course of discovery itself, the judge needs to be minimally computer literate. This is perhaps a problem which will fade into non-existence as younger and more computer exposed lawyers come to the bench and bar. However, it is critically important during this period of experimentation wherein precedents which may long outlive their creators are being handed down. There are three stop gap strategies which deserve consideration: A. PROFESSIONALS SPECIAL COURTS INCORPORATING COMPUTER SOFTWARE One is to consider the possibility of special courts which incorporate the expertise of the computer professional. There is such a model in Canada with a court especially constructed to handle anti-competitive allegation which includes a lay judge and two professionally competent but non-lawyer judges (usually economists). In such cases the lawyer judge determines the law and the three decide the facts. B. POOLING SPECIAL CLERKS WITH COMPUTER SKILLS Another is to recruit law clerks with advanced degrees in computer sciences and/or a joint degree in computer science and law. A pool of such professionally competent clerks could be established who could be assigned on an "as needed" basis to judges who were assigned a case involving computer software controversies. C. SPECIAL ROSTER OF COMPUTER CONSULTANTS A third strategy worthy of consideration would be to establish a roster of computer consultants, recruited from the industry, who would be willing to advise judges during the early stages of litigation in order to facilitate the better understanding of issues which can be resolved by the courts. There are now available to lawyers litigating such complex cases companies which specialize in providing expertise in computer litigation. However, Anne W. Branscomb/Computer Software/November 8, 1989 the judges need access to such expertise as much as the lawyers especially since they may not concentrate on garnering such particularized knowledge if they sit in a court of general jurisdiction. In summary, any one of the three above alternatives could enhance the capabilities of the judicial system. VI. THE CHALLENGE TO THE CONGRESS The time is ripe to reconsider the applicability of intellectual property laws to computer software: - to determine its legal status and value as a primary intellectual resource in the information economy and as a commodity in trade, - to define the commonalities between the varying systems of legal protection, - to clarify levels and lengths of protection which are optimal for computer software, - to reassess the viability of restrictions such as the "first sale" doctrine - to streamline procedures for gaining redress of grievances, to delineate types of software and determine which types will receive what kind of encouragement in the marketplace--algorithms, operating software, hardwired software, program software, CAD, CAM, archival and on-line databases, artificial intelligence as well as chips. The technology is moving at a fast pace. The law must match its pace to that of the technology. Computer software cannot be the tail that wags the dog. It is the driving lifeforce of the information economy and must command the attention of lawmakers that it deserves. The health of the economy depends upon your assessment and your actions. +++ An article from TECHNOLOGY REVIEW which expands upon the reasoning contained in this statement is included herein. +++ +++++ Anne Wells Branscomb, is an attorney specializing in communications and computer law and a research affiliate of the Harvard University Program on Information Resources Policy. She has been an Adjunct Professor of International Law at the Fletcher School of Law and Diplomacy, an Adjunct Professor of International Telecommunications at the Polytechnic University, Chairman of the Communications Law Division of the American Bar Association Science and Technology Section, a trustee of Rensselaer Polytechnic Institute, EDUCOM, National Public Radio, an editor of several professional journals, and served on the Department of Commerce Technical Advisory Board. Currently she serves as a member of the Board of Trustees of the Pacific Telecommunications Council and as an appointee to the National Conference of Lawyers and Scientists. Anne W. Branscomb/Computer Software/November 8, New electronic technologies have redefined intellectual property, posing economic and ethical dilemmas for scientists, policymakers, and the public. Who Owns Creativity? Property Rights in the Information Age I N the coming months, a Boston, Mass., federal district court may settle a $10 million lawsuit by deciding who owns the "look and feel" of a popular computer program. The result will only intensify the controversy over the impact of new information technologies on intellectual property rights. In January 1987, the Lotus Development Corp. filed suit against two small software houses for violating its copyright on the enormously successful Lotus 1-2-3 computerized spreadsheet. The defendants had developed and marketed "workalike" spreadsheet programs that incorporate the program functions and screen design of 1-2-3 without duplicating the programming code traditionally protected by copyright. Nevertheless, Lotus argued that the work-alike programs are unauthorized copies. The name of one clone is-revealingly-"Twin," and an advertisement for the other boasts that it is "a feature-for-feature work-alike for 1-2-3 ... designed to work like Lotus ... keystroke for keystroke." According to Lotus, the essence of a program is not its code but its distinctive "look and feel," which the copyright should protect. BY ANNE W. BRANSCOMB ILLUSTRATIONS: SALLY WERN COMPORT |