As societies become more complex, ever-more-nuanced tensions arise. The newspapers and the legal reporters are filling up with stories showing the difficulty of drawing the proper lines. Some involve lines between employers and employees. Evan Brown, who works for DSC Communications, a company that makes equipment for the telecommunications industry, and who signed a complex contract governing inventions, has an idea for updating old computer software. He says it was 80 percent complete before he went to work for DSC, and that it is unrelated to DSC's business anyway, so it is his. DSC thinks the idea belongs to the company: "If a janitor came up with a method of cleaning a hardwood floor suggested...by work in cleaning a DSC hardwood floor, technically the idea belongs to DSC," it argues. A novel element in the situation is that Brown has never put his idea on paper and has refused two court orders to do so.
Other stories look at the lines between scientists, as when a biotechnology company claims that a key idea was stolen from a scientific paper during peer review and used to obtain a patent for a rival. Among its defenses, the rival argues that the peer review process carries no obligation of confidentiality. Yet other stories turn on the lines between generators of intellectual property and consumers. A couple of years ago, the American Society of Composers, Authors, and Publishers, which collects for the use of music that has been copyrighted by its members, got into an embarrassing brawl with the Girl Scouts over the use of songs at summer camps. ASCAP claimed that the Scouts should be paying license fees, and earned headlines such as "The Birds May Sing, But Campers Can't Unless They Pay Up," "Campfire Churls," and "Legal Sour Notes." In the face of such negative publicity, ASCAP retreated.
No perfect answers to the problems of dividing the fruits of invention exist in the theory or practice of either ethics or economics, but society has evolved a series of rough-and-ready rules designed to reward and encourage invention without slighting the interests of other players on the economic system. Patents and copyrights are limited in time. You can patent only an actual device, not a general idea; if someone else invents another device that performs the same function, that's too bad for you. An inventor of a horse collar could patent his particular design, but could not patent "the idea of a collar that shifts the strain to a horse's shoulders." As the U.S. law puts it, one cannot patent an "idea, procedure, process, system, method of operation, concept, principle, or discovery." Einstein, to the regret of his heirs, could not patent the formula E = mc2. Nor could Apple Computer, to the regret of its stockholders and employees (and to the delight of Microsoft), patent the idea of a mouse and a graphical user interface, both of which originated elsewhere anyway. On the other hand--and showing the considerable confusion over the exact meaning of these formulas--a patent was issued covering a way to swing a golf club.
Other restrictions exist, such as the proviso that no one can patent familiar or obvious devices or logical extensions of current art. Because such a proviso can conceivably undercut virtually any patent, this is precisely what most patent litigation is about. We also retain our fundamental faith in the virtues of competition and impose some legal limits on the use of patents as mechanisms of monopoly. The current government investigation of Microsoft focuses on the charge that it is trying to leverage its power over the intellectual property of the Windows operating system into control of other areas.
It may seem a long way from horse collars and cartage systems to computer software and today's high-tech industries, but the distance traveled is really not so far. One of the great challenges over the next few decades will be to evolve property rights in intellectual products in a way that reconciles old concerns in these new contexts.
The task will not be simple, because the stakes are large and the conflicts are going to be fierce. Furthermore, the sides are not obvious. The interests of investors, managers, employees, consumers, and inventors are all multi-dimensional, and sometimes counterintuitive. For example, it is often assumed that large corporations favor expansive rights in intellectual property so that they can buy them up. But this is not necessarily so. Those whose power is financial might be better off with narrow definitions. That way, they can copy innovation freely and rely on marketing muscle to squeeze out the inventors. Small inventors worry about this possibility in connection with pending legislation that would make patents public 18 months after the application is filed rather than when the patent is granted, as is the present practice. Big companies, they fear, will steal the ideas and wear down inventors through litigation.
Similarly, how far should creative people go in demanding legal protection for the fruit of their labor? Creators are borrowers as well as lenders, and a requirement that they get permission for every cross-reference would be a heavy--even potentially crushing--burden. A healthy intellectual commons is to the benefit of all, but precise definitions of all the terms in that claim are elusive. Hence, in the ongoing debate over possible reform of the copyright laws, the boundaries of the concept called "fair use" is one of the most contested topics.
Corporate management will also be affected. In theory, managers are the agents of the shareholders exclusively, bound to promote their interests. But, as in the Microsoft context, "capital is in surplus; skilled geeks are at a premium." So the managers who do the best job for their shareholders in the long term will be those who are good at harnessing the mental energies of their information workers. This requires a more subtle balancing than exists at present between the interests of investors and employees, especially when, as with Microsoft, these categories have huge overlap. Since 1994, for example, Cisco Systems, a leading manufacturer of Internet hardware, has purchased 19 companies, most of them small software firms on the brink of product launch. "In short," says The Wall Street Journal, "Cisco is buying new product teams on the open market...and it is paying lofty prices--sometimes as much as $2 million an employee." When you pay that much for mental machinery, you have to figure out how to keep it in good working order, and, unlike metal machinery, you cannot do this with an occasional squirt of lubricant.
All in all, it should be an interesting time.
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