Don Marti

Sun 17 Apr 2005 08:33:51 PM PDT

"Intellectual Property" law and rights.

Someone said (paraphrasing) "Copyright and patent law protect the rights of software developers."

This is actually backwards. Copyright and patent policies are created by governments in order to promote economically beneficial activities including research and publishing. The "progress of the useful arts" clause of the Constitution is in a long list of miscellaneous economic powers of Congress, such as building post offices and post roads, not in the Bill of Rights.

Just as you don't have a right to a "post road", now US Highway, right in front of your house, you don't start with some kind of right to your software that the government then uses law to protect. The government starts with a public policy goal, and any monopoly rights you get in your software flow from that. Copyright and patent rights are more like "right of way" than "right of free speech".

The Supreme Court, in Eldred v. Ashcroft, strongly endorses this view by affirming Congress's power to change copyright law. Likewise, when patent expirations changed from "17 years after grant" to "20 years after filing" it wasn't a taking, just a change in an economic development program. Other quirks in the law -- such as the fact that you can't get a copyright on the look of a typeface but you can get one on software that implements a typeface -- also show that there's no fundamental "right" at the root of copyright and patent.

This seems like a historical point but it is significant when talking about what kind of laws you want in these areas.