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.comment: A Moderate Approach to Intellectual Property - page 2

"Mom, the Germans Are Doing It Again . . ."

  • July 11, 2001
  • By Dennis E. Powell

Intellectual property takes, basically, four forms: copyrighted works, patented inventions, trademarks, and trade secrets. All of them figure in computing.

For instance, BIOS information is usually kept secret. This began when it was not known that computing would advance as rapidly as it has (there was an internal study at IBM that said that for the entire life of the industry, only 250,000 PCs would be sold). Of course, the classic secret is the recipe for Coca Cola. It is not patented or copyright, because those things expire and the Coca Cola Company would like to stay in business forever.

The other three classes of intellectual property have in common that they can be licensed. The holder of the copyright, patent, or trademark can specify the circumstances under which a particular piece of intellectual property may be used. Software is typically copyrighted and licensed to users (even the GPL is designed to provide the terms and conditions of use of copyrighted material; that's why the L stands for "license"). In the good old days of a decade or two ago, patents typically (though not always) were matters of hardware; the user would not be governed by license provisions (you could, for instance, use your power supply not to juice up your motherboard but to electrocute the guppies, if your tendencies were in that direction, and the patent holder would probably wish you no ill unless you decided to market power supplies for that purpose and didn't obtain license to the patent first), but a secondary manufacturer could obtain license to build the patented item or to build something based on the advance covered by the patent. Trademarks are (or were, again in the happy days of yore) means whereby a company identified itself and its products; these are licensed to people who typically wish to establish a business under a degree of supervision by the trademark holder, in exchange for gaining the reputation and recognition that the trademark brings.

All of this is perfectly reasonable. People who go to the trouble of creating something by all rights ought to have a say in what becomes of their creation and, if it's the kind of thing where there's money to be made, enjoy some or all of that money. (Not all intellectual property has much value; arguably, the vast majority doesn't, but that surely shouldn't diminish the creator's rights to it, just the likelihood that anybody would try to steal it.)

The problem has come not in the area of secrets, which if kept are pretty well absolute, or copyright, which is straightforward, but in the area of patents and trademarks.

There are places that are virtual patent factories. I don't mean to be picking on IBM, but it is surely one of these -- IBM applies for more patents daily than most large companies do in a year. And while there are many IBM patents that clearly represent huge advances in technology, there are also many that most of us would probably find to be very minor advances. Even so, there's not much griping to be done, because tangible improvements are being made, and from that we all live marginally better lives, or so the argument goes.

It's in the area of things like web design that one has to wonder if the patent system hasn't maybe gotten out of whack. When a company can patent the number of clicks it takes to place an online order, there's trouble. And that is not the most egregious example available.

Then we look at trademarks. Companies that ought to know better are trademarking ordinary words, and the U.S. government, which ought to know better, is allowing it, and other governments, which ought to know better, are allowing it to be enforced by whatever pecular means local custom dictates.

U.S. law requires that trademarks be vigorously protected, lest they fall into common usage and lose their brand-specific meaning. The classic example of this is Xerox, which for a time took out advertisements and which may still send letters to transgressors who commit their offenses in print, explaining that Xerox is a company name, not a generic term for photocopying. (The brand must be protected. Remember, Xerox is the only company that developed the precursors -- pun intended --of the modern graphical user interface and then failed to capitalize on it. The result is other companies raking in billions while Xerox has fallen to the extent that one upstate New York restaurant will give you a steak dinner for a share of Xerox stock. Perhaps it would have been good to protect the company itself as vigorously as its trademark has been.)

What happens, though, when the trademarked word is not a company logo or a unique, synthesized word, but instead something already in common, non-trademarked usage? Though not uniquely the realm of software companies, this kind of thing has found a special home in that industry, which is wont to give its companies and products goofy, unhelpful names. Years ago, those who heard of Lotus Development Corp. for the first time would not have been unreasonable in supposing that it was a company that supplied blooming water plants, and that Lotus 1-2-3 was perhaps its brand of fertilizer. This phenomonenon was not clarified by advertisements, as typified by the Wang television campaign in which the camera panned spastically around the room as people you never quite saw mumbled technogibberish; you never did find out what was being advertised.

We have Red Hat, which means nothing computer-related, Caldera, which means "crater," a term now seen as appropriate only by holders of the company's stock; Mandrake, a medicinal root that is said to scream when pulled; and Slackware, which is just kind of offputting. Debian, as usual, goes its own way, having an actual meaning -- its founder, Ian Murdock, and his wife, Deb -- form together a word that is both unique and appropriate to the kind of following which that distribution has engendered. ("Good day, brother. Are you a Benedictine?" "No, I'm a Debian.")

We have products like Adobe Illustrator, in which two commonly used words suggestive of dirt buildings and Norman Rockwell are taken as proprietary by a company that has done some good things over the years, though naming and trademarking are not among them.

The result, then, is situations like the one that popped up involving KIllustrator. They deserve our calm attention, because the current method of dealing with them, as exemplified in the instant case, is unsatisfactory.

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