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WSWS : News & Analysis : Science & Technology

Intellectual property and computer software

By Kevin Reed

You may not be aware of it, but the software package you just paid hundreds of dollars for and installed on your hard disk isn't really yours. You don't even own the manual that just replaced that old dictionary on your bookshelf. In fact, all you've gotten for your money is a licence to use the program and, if you're lucky, the right to make one copy of it for archival purposes.

If you examine the fine print on the envelope containing the installation disks, it probably reads something like this: "This software and accompanying manuals (herein referred to as the Product) are owned by Software Corp. X and are protected by US and international copyright laws. Your right to use the Product terminates automatically if you violate any part of this Licence. In the event of termination, you must immediately destroy all copies of the Product or return them to Software Corp. X."

These licence agreements come with all computer programs today. Even though nothing was signed, a user is bound by this agreement upon opening the packaging which contains the software. A violation can carry fines of up to $20,000 per infringement.

Software licence agreements are an important part of capitalist private property rights in the information age. By using laws such as copyright, the owners of software companies seek, however unsuccessfully, to prevent the unauthorised duplication of their programs.

But the legal framework of intellectual property rights which copyright is based on was developed in the age of printing more than 500 years ago. With the penetration of digital technology into every aspect of society, these laws have been severely undermined and rendered virtually obsolete.

There is fierce debate within the corporate world and the courts over which laws, copyright or patent, apply to computer software, and to what extent they protect the individual or company which produces a program. Mega-corporations are battling the issue out in a global scramble for markets and profits. Billions are at stake in the outcome of the legal controversy.

In the United States intellectual property was protected by the drafters of the Constitution in 1787 when they adopted a clause which empowered Congress "to promote the progress of sciences and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The two most common types of intellectual property are patent and copyright. Patent is the right to make, use or sell a particular application of an idea. A patent does not mean the right to own the principles upon which an invention is based but the novel, non-obvious and useful application of those principles. For example, the photo-electric effect is not patentable, but the design of a particular photo-voltaic cell may be.

Similarly, copyright is the right to make copies of a particular expression of an idea. A copyright does not give an author ownership of the subject matter, but rather, his particular way of explaining this material. An author who writes a book on the Civil War has a copyright to his unique verbal creation, not to all books about the subject.

The boundaries within which intellectual property is recognised are much more difficult to establish than ownership of tangible property. But they have a long history in capitalist law.

Intellectual property rights emerged along with the capitalist class itself. The technological innovations that developed with trade and commerce at the end of the Middle Ages made necessary government regulations to protect the rights of the inventor to his original creation. Patents began as a historically progressive measure which cultivated the development of new technology.

The demand for rights to original ideas was driven further by the invention of printing in 1450. Here a creator could lose control of his invention because his ideas could be recorded on paper and easily duplicated and the works of authors were easy to print. Out of the demand for rights to authorship came the copyright.

The publication of books had a tremendous effect on literacy and the availability of ideas and information. As the market for such materials developed and their revolutionary political impact was felt, copyright became a means of regulating the market and a tool of censorship for those in power.

Prior to printing there could have been no concept of copyright because all information existed in the form of hand-written manuscripts which were considered sacred. Since everything was transcribed by monks, the issue of personal authorship was irrelevant.

In the nineteenth and twentieth centuries, information technologies such as telegraph, radio and television developed in relative harmony with existing intellectual property laws. This was because control of these powerful technologies, like printing in the earlier period, remained restricted to a minority of wealthy owners.

The development of photocopiers and video and audio tape machines began the process of decentralisation of information technologies by reducing the cost of creation and copying. This placed new strains upon existing laws. With computer technology, which has put instantaneous dissemination and exact copying of information into the hands of tens of millions of people, legal concepts such as author or inventor have little or no meaning. This problem is particularly evident when examining computer software.

While it might appear easy for a programmer or a user to define software, this technology does not fit readily into the existing categories of capitalist law. By their nature as both "inventions" and "writings," computer programs are pushing the centuries-old distinction between patent and copyright.

A computer program is an invention because it is an original application of a series of codes, electronic expressions of 0s and 1s, and executes a specific function. But it is also a writing because it is an idea in the form of written symbols and words.

But the US government, in the service of the software corporations, has tried to define this hybrid and contradictory technology according to one or the other of its sides--either invention or writing--so as to make it fall under the legal protection of either patent or copyright laws.

Initial attempts by software companies to obtain patents failed because a computer program's function is reducible to a mathematical algorithm, which is not patentable. But by 1981 the US Patent and Trademark Office began granting patents for "software-related inventions."

Meanwhile an amendment to the US Copyright Act was passed in 1980 that defined software as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." This decision was made against opposition from experts hired by the government to study the question. Among them were noted authors who argued that a program was not a "writing" in the sense intended by the US Constitution.

Since the early 1980s copyright and patent laws have been used in a host of litigations between software companies over who owns the right to programs. Out of these conflicts, new and ever more bizarre legal concepts have emerged.

One of the best known suits was filed by Apple Computer in 1988 against Microsoft and Hewlett-Packard. Apple argued that the "look and feel" of its Desktop software was stolen by the others. In 1993 the case was thrown out by a US judge on the grounds that granting Apple the rights to GUIs (graphical user interfaces) would "afford too much protection and yield too little competition."

Such a decision, as usual, is based upon what best serves American big business as an international competitor, not on who actually created the interface. Unnecessary restrictions on software development, like copyrighting GUIs, would undermine the ability of US firms to dominate world trade. In 1988 the US controlled 70 percent of the world software market, which totalled about $50 billion.

Opponents of software ownership rights have long argued for a community of programmers in which all the tools and products are shared resources. For example, The League for Programming Freedom published a document in 1990 called "Against User Interface Copyright," which said, "Anything which impedes standardisation impedes the social penetration of the technology." But the issue is not simply one of a better means for standardisation.

Computer programs are complex social products and not simply the result of any individual's work. The computerisation of society could make possible a future in which the basic needs of every human being can be provided for with a minimum of physical labour and a maximum of automation. Already this revolutionary technology is making its way into all aspects of life, forcing through a rearrangement of social relations on a local, national and world scale.

Computer technology is able to leap over linguistic, cultural and national barriers. Its collision with existing intellectual property structures, and the legal anomalies which have arisen as a result, are a manifestation in the sphere of law of a more fundamental economic and social problem: the technological development of society is incompatible with the existence of capitalist private property, as well as the national state system within which capitalism has historically developed.

The vast potential of computer technology is subordinated by the handful of software industry giants to one overriding goal--the amassing of huge fortunes. One notable example is Microsoft Chairman William Gates, who played a significant role in the emergence of the personal computer. He has become one of the richest men in America, with a reported personal wealth of over $6 billion.

There are scores of such electronic inventor-author-entrepreneurs who dominate the industry and regard the subservience of this powerful instrument of human technology to their personal gain as a matter of course. Could it be otherwise under capitalism at the end of the twentieth century?

The myopic greed of men like Gates is in contrast to the character of great inventors from previous periods. In the 1740s, when capitalism was emerging as the economic and social framework for a revolutionary advance in man's productive forces, Ben Franklin explained why he turned down an offer from the Governor of Pennsylvania to patent the Franklin stove. He said, "I declin'd from a Principle which has weighed with me on such occasions, vis. That we enjoy great Advantages from the Invention of others, we should be glad of an opportunity to serve others by invention of ours and this we should do freely and generously."

See Also:
Monopoly in the computer software industry:
The Microsoft case
[15 April 1998]