softwarelaw

Nelumbo nucifera, or the sacred lotus, is a plant that grows in flood plains, rivers, and deltas. Their seeds can remain dormant for years and when floods come along, blossom into a colony of plants and flowers. Some of the oldest seeds can be found in China, where they’re known to represent longevity. No surprise, given their level of nitrition and connection to the waters that irrigated crops by then. They also grow in far away lands, all the way to India and out to Australia. The flower is sacred in Hinduism and Buddhism, and further back in ancient Egypt.

Padmasana is a Sanskrit term meaning lotus, or Padma, and Asana, or posture. The Pashupati seal from the Indus Valley civilization shows a diety in what’s widely considered the first documented yoga pose, from around 2,500 BCE. 2,700 years later (give or take a century), the Hindu author and mystic Patanjali wrote a work referred to as the Yoga Sutras. Here he outlined the original asanas, or sitting yoga poses. The Rig Veda, from around 1,500 BCE, is the oldest currently known Vedic text. It is also the first to use the word “yoga”. It describes songs, rituals, and mantras the Brahmans of the day used - as well as the Padma. Further Vedic texts explore how the lotus grew out of Lord Vishnu with Brahma in the center. He created the Universe out of lotus petals. Lakshmi went on to grow out of a lotus from Vishnu as well.

It was only natural that humans would attempt to align their own meditation practices with the beautiful meditatios of the lotus. By the 300s, art and coins showed people in the lotus position. It was described in texts that survive from the 8th century. Over the centuries contradictions in texts were clarified in a period known as Classical Yoga, then Tantra and and Hatha Yoga were developed and codified in the Post-Classical Yoga age, and as empires grew and India became a part of the British empire, Yoga began to travel to the west in the late 1800s. By 1893, Swami Vivekananda gave lectures at the Parliament of Religions in Chicago. 

More practicioners meant more systems of yoga. Yogendra brought asanas to the United States in 1919, as more Indians migrated to the United States. Babaji’s kriya yoga arrived in Boston in 1920. Then, as we’ve discussed in previous episodes, the United States tightened immigration in the 1920s and people had to go to India to get more training. Theos Bernard’s Hatha Yoga: The Report of a Personal Experience brought some of that knowledge home when he came back in 1947. Indra Devi opened a yoga studio in Hollywood and wrote books for housewives. She brought a whole system, or branch home. Walt and Magana Baptiste opened a studio in San Francisco. Swamis began to come to the US and more schools were opened. Richard Hittleman began to teach yoga in New York and began to teach on television in 1961. He was one of the first to seperate the religious aspect from the health benefits. By 1965, the immigration quotas were removed and a wave of teachers came to the US to teach yoga.

The Beatles went to India in 1966 and 1968, and for many Transcendental Meditation took root, which has now grown to over a thousand training centers and over 40,000 teachers. Swamis opened meditation centers, institutes, started magazines, and even magazines. Yoga became so big that Rupert Holmes even poked fun of it in his song “Escape (The Piña Colada Song)” in 1979. Yoga had become part of the counter-culture, and the generation that followed represented a backlash of sorts.

A common theme of the rise of personal computers is that the early pioneers were a part of that counter-culture. Mitch Kapor graduated high school in 1967, just in time to be one of the best examples of that. Kapor built his own calculator in as a kid before going to camp to get his first exposure to programming on a Bendix. His high school got one of the 1620 IBM minicomputers and he got the bug. He went off to Yale at 16 and learned to program in APL and then found Computer Lib by Ted Nelson and learned BASIC. Then he discovered the Apple II. 

Kapor did some programming for $5 per hour as a consultant, started the first east coast Apple User Group, and did some work around town. There are generations of people who did and do this kind of consulting, although now the rates are far higher. He met a grad student through the user group named Eric Rosenfeld who was working on his dissertation and needed some help programming, so Kapor wrote a little tool that took the idea of statistical analysis from the Time Shared Reactive Online Library, or TROLL, and ported it to the microcomputer, which he called Tiny Troll. 

Then he enrolled in the MBA program at MIT. He got a chance to see VisiCalc and meet Bob Frankston and Dan Bricklin, who introduced him to the team at Personal Software. Personal Software was founded by Dan Fylstra and Peter Jennings when they published Microchips for the KIM-1 computer. That led to ports for the 1977 Trinity of the Commodore PET, Apple II, and TRS-80 and by then they had taken Bricklin and Franston’s VisiCalc to market. VisiCalc was the killer app for those early PCs and helped make the Apple II successful.

Personal Software brought Kapor on, as well as Bill Coleman of BEA Systems and Electronic Arts cofounder Rich Mellon. Today, software developers get around 70 percent royalties to publish software on app stores but at the time, fees were closer to 8 percent, a model pulled from book royalties. Much of the rest went to production of the box and disks, the sales and marketing, and support. Kapor was to write a product that could work with VisiCalc. By then Rosenfeld was off to the world of corporate finance so Kapor moved to Silicon Valley, learned how to run a startup, moved back east in 1979, and released VisiPlot and VisiTrend in 1981. He made over half a million dollars in the first six months in royalties. 

By then, he bought out Rosenfeld’s shares in what he was doing, hired Jonathan Sachs, who had been at MIT earlier, where he wrote the STOIC programming language, and then went to work at Data General. Sachs worked on spreadsheet ideas at Data General with a manager there, John Henderson, but after they left Data General, and the partnership fell apart, he worked with Kapor instead. They knew that for software to be fast, it needed to be written in a lower level language, so they picked the Intel 8088 assembly language given that C wasn’t fast enough yet. The IBM PC came in 1981 and everything changed. Mitch Kapor and Jonathan Sachs started Lotus in 1982.

Sachs got to work on what would become Lotus 1-2-3. Kapor turned out to be a great marketer and product manager. He listened to what customers said in focus groups. He pushed to make things simpler and use less jargon. They released a new spreadsheet tool in 1983 and it worked flawlessly on the IBM PC and while Microsoft had Multiplan and VisCalc was the incumbent spreadsheet program, Lotus quickly took market share from then and SuperCalc.

Conceptually it looked similar to VisiCalc. They used the letter A for the first column, B for the second, etc. That has now become a standard in spreadsheets. They used the number 1 for the first row, the number 2 for the second. That too is now a standard. They added a split screen, also now a standard. They added macros, with branching if-then logic. They added different video modes, which could give color and bitmapping. They added an underlined letter so users could pull up a menu and quickly select the item they wanted once they had those orders memorized, now a standard in most menuing systems. They added the ability to add bar charts, pie charts, and line charts. One could even spread their sheet across multiple monitors like in a magazine. They refined how fields are calculated and took advantage of the larger amounts of memory to make Lotus far faster than anything else on the market.

They went to Comdex towards the end of the year and introduced Lotus 1-2-3 to the world. The software could be used as a spreadsheet, but the 2 and 3 referred to graphics and database management. They did $900,000 in orders there before they went home. They couldn’t even keep up with the duplication of disks. Comdex was still invitation only. It became so popular that it was used to test for IBM compatibility by clone makers and where VisiCalc became the app that helped propel the Apple II to success, Lotus 1-2-3 became the app that helped propel the IBM PC to success.

Lotus was rewarded with $53 million in sales for 1983 and $156 million in 1984. Mitch Kapor found himself. They quickly scaled from less than 20 to 750 employees. They brought in Freada Klein who got her PhD to be the Head of Employee Relations and charged her with making them the most progressive employer around. After her success at Lotus, she left to start her own company and later married. Sachs left the company in 1985 and moved on to focus solely on graphics software. He still responds to requests on the phpBB forum at dl-c.com.

They ran TV commercials. They released a suite of Mac apps they called Lotus Jazz. More television commercials. Jazz didn’t go anywhere and only sold 20,000 copies. Meanwhile, Microsoft released Excel for the Mac, which sold ten times as many. Some blamed the lack os sales on the stringent copy protection. Others blamed the lack of memory to do cool stuff. Others blamed the high price. It was the first major setback for the young company. 

After a meteoric rise, Kapor left the company in 1986, at about the height of their success. He  replaced himself with Jim Manzi. Manzi pushed the company into network applications. These would become the center of the market but were just catching on and didn’t prove to be a profitable venture just yet. A defensive posture rather than expanding into an adjacent market would have made sense, at least if anyone knew how aggressive Microsoft was about to get it would have. 

Manzi was far more concerned about the millions of illegal copies of the software in the market than innovation though. As we turned the page to the 1990s, Lotus had moved to a product built in C and introduced the ability to use graphical components in the software but not wouldn’t be ported to the new Windows operating system until 1991 for Windows 3. By then there were plenty of competitors, including Quattro Pro and while Microsoft Excel began on the Mac, it had been a showcase of cool new features a windowing operating system could provide an application since released for Windows in 1987. Especially what they called 3d charts and tabbed spreadsheets.

There was no catching up to Microsoft by then and sales steadily declined. By then, Lotus released Lotus Agenda, an information manager that could be used for time management, project management, and as a database. Kapor was a great product manager so it stands to reason he would build a great product to manage products. Agenda never found commercial success though, so was later open sourced under a GPL license.

Bill Gross wrote Magellan there before he left to found GoTo.com, which was renamed to Overture and pioneered the idea of paid search advertising, which was acquired by Yahoo!. Magellan cataloged the internal drive and so became a search engine for that. It sold half a million copies and should have been profitable but was cancelled in 1990. They also released a word processor called Manuscript in 1986, which never gained traction and that was cancelled in 1989, just when a suite of office automation apps needed to be more cohesive. 

Ray Ozzie had been hired at Software Arts to work on VisiCalc and then helped Lotus get Symphony out the door. Symphony shipped in 1984 and expanded from a spreadsheet to add on text with the DOC word processor, and charts with the GRAPH graphics program, FORM for a table management solution, and COM for communications. Ozzie dutifully shipped what he was hired to work on but had a deal that he could build a company when they were done that would design software that Lotus would then sell. A match made in heaven as Ozzie worked on PLATO and borrowed the ideas of PLATO Notes, a collaboration tool developed at the University of Illinois Champagne-Urbana  to build what he called Lotus Notes. 

PLATO was more more than productivity. It was a community that spanned decades and Control Data Corporation had failed to take it to the mass corporate market. Ozzie took the best parts for a company and built it in isolation from the rest of Lotus. They finally released it as Lotus Notes in 1989. It was a huge success and Lotus bought Iris in 1994. Yet they never found commercial success with other socket-based client server programs and IBM acquired Lotus in 1995. That product is now known as Domino, the name of the Notes 4 server, released in 1996. Ozzie went on to build a company called Groove Networks, which was acquired by Microsoft, who appointed him one of their Chief Technology Officers. When Bill Gates left Microsoft, Ozzie took the position of Chief Software Architect he vacated. He and Dave Cutler went on to work on a project called Red Dog, which evolved into what we now know as Microsoft Azure. 

Few would have guessed that Ozzie and Kapor’s handshake agreement on Notes could have become a real product. Not only could people not understand the concept of collaboration and productivity on a network in the late 1980s but the type of deal hadn’t been done. But Kapor by then realized that larger companies had a hard time shipping net-new software properly. Sometimes those projects are best done in isolation. And all the better if the parties involved are financially motivated with shares like Kapor wanted in Personal Software in the 1970s before he wrote Lotus 1-2-3.

VisiCalc had sold about a million copies but that would cease production the same year Excel was released. Lotus hung on longer than most who competed with Microsoft on any beachhead they blitzkrieged. Microsoft released Exchange Server in 1996 and Notes had a few good years before Exchange moved in to become the standard in that market. Excel began on the Mac but took the market from Lotus eventually, after Charles Simonyi stepped in to help make the product great. 

Along the way, the Lotus ecosystem created other companies, just as they were born in the Visi ecosystem. Symantec became what we now call a “portfolio” company in 1985 when they introduced NoteIt, a natural language processing tool used to annotate docs in Lotus 1-2-3. But Bill Gates mentioned Lotus by name multiple times as a competitor in his Internet Tidal Wave memo in 1995. He mentioned specific features, like how they could do secure internet browsing and that they had a web publisher tool - Microsoft’s own FrontPage was released in 1995 as well. He mentioned an internet directory project with Novell and AT&T. Active Directory was released a few years later in 1999, after Jim Allchin had come in to help shepherd LAN Manager. Notes itself survived into the modern era, but by 2004 Blackberry released their Exchange connector before they released the Lotus Domino connector. That’s never a good sign.

Some of the history of Lotus is covered in Scott Rosenberg’s 2008 book, Dreaming in Code. Others are documented here and there in other places. Still others are lost to time.

Kapor went on to invest in UUNET, which became a huge early internet service provider. He invested in Real Networks, who launched the first streaming media service on the Internet. He invested in the creators of Second Life. He never seemed vindictive with Microsoft but after AOL acquired Netscape and Microsoft won the first browser war, he became the founding chair of the Mozilla Foundation and so helped bring Firefox to market. By 2006, Firefox took 10 percent of the market and went on to be a dominant force in browsers. Kapor has also sat on boards and acted as an angel investor for startups ever since leaving the company he founded.

He also flew to Wyoming in 1990 after he read a post on The WELL from John Perry Barlow. Barlow was one of the great thinkers of the early Internet. They worked with Sun Microsystems and GNU Debugging Cypherpunk John Gilmore to found the Electronic Frontier Foundation, or EFF. The EFF has since been the nonprofit who leads the fight for “digital privacy, free speech, and innovation.” So not everything is about business.

 

 

The largest global power during the rise of intellectual property was England, so the world adopted her philosophies. The US had the same impact on software law.

Most case law that shaped the software industry is based on copyright law. Our first real software laws appeared in the 1970s and now have 50 years of jurisprudence to help guide us. This episode looks at the laws, supreme court cases, and some circuit appeals cases that shaped the software industry.

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In our previous episode we went through a brief review of how the modern intellectual property laws came to be. Patent laws flowed from inventors in Venice in the 1400s, royals gave privileges to own a monopoly to inventors throughout the rest of Europe over the next couple of centuries, transferred to panels and academies during and after the Age of Revolutions, and slowly matured for each industry as technology progressed. 

Copyright laws formed similarly, although they were a little behind patent laws due to the fact that they weren’t really necessary until we got the printing press. But when it came to data on a device, we had a case in 1908 we covered in the previous episode that led Congress to enact the 1909 Copyright Act. 

Mechanical music boxes evolved into mechanical forms of data storage and computing evolved from mechanical to digital. Following World War II there was an explosion in new technologies, with those in computing funded heavily by US government. Or at least, until we got ourselves tangled up in a very unpopular asymmetrical war in Vietnam. The Mansfield Amendment of 1969, was a small bill in the 1970 Military Authorization Act that ended the US military from funding research that didn’t have a direct relationship to a specific military function. Money could still flow from ARPA into a program like the ARPAnet because we wanted to keep those missiles flying in case of nuclear war. But over time the impact was that a lot of those dollars the military had pumped into computing to help develop the underlying basic sciences behind things like radar and digital computing was about to dry up. This is a turning point: it was time to take the computing industry commercial. And that means lawyers.

And so we got the first laws pertaining to software shortly after the software industry emerged from more and more custom requirements for these mainframes and then minicomputers and the growing collection of computer programmers. The Copyright Act of 1976 was the first major overhaul to the copyright laws since the 1909 Copyright Act. Since then, the US had become a true world power and much as the rest of the world followed the British laws from the Statute of Anne in 1709 as a template for copyright protections, the world looked on as the US developed their laws. Many nations had joined the Berne Convention for international copyright protections, but the publishing industry had exploded. We had magazines, so many newspapers, so many book publishers. And we had this whole weird new thing to deal with: software. 

Congress didn’t explicitly protect software in the Copyright Act of 1976. But did add cards and tape as mediums and Congress knew this was an exploding new thing that would work itself out in the courts if they didn’t step in. And of course executives from the new software industry were asking their representatives to get in front of things rather than have the unpredictable courts adjudicate a weird copyright mess in places where technology meets copy protection. So in section 117, Congress appointed the National Commission on New Technological Uses of Copyrighted Works, or CONTU) to provide a report about software and added a placeholder in the act that empaneled them.

CONTU held hearings. They went beyond just software as there was another newish technology changing the world: photocopying. They presented their findings in 1978 and recommended we define a computer program as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. They also recommended that copies be allowed if required to use the program and that those be destroyed when the user no longer has rights to the software. This is important because this is an era where we could write software into memory or start installing compiled code onto a computer and then hand the media used to install it off to someone else. 

At the time the hobbyist industry was just about to evolve into the PC industry, but hard disks were years out for most of those machines. It was all about floppies. But up-market there was all kinds of storage and the righting was on the wall about what was about to come. Install software onto a computer, copy and sell the disk, move on. People would of course do that, but not legally. 

Companies could still sign away their copyright protections as part of a sales agreement but the right to copy was under the creator’s control. But things like End User License Agreements were still far away. Imagine how ludicrous the idea that a piece of software if a piece of software went bad that it could put a company out of business in the 1970s. That would come as we needed to protect liability and not just restrict the right to copy to those who, well, had the right to do so. Further, we hadn’t yet standardized on computer languages. And yet companies were building complicated logic to automate business and needed to be able to adapt works for other computers and so congress looked to provide that right at the direction of CONTU as well, if only to the company doing the customizations and not allowing the software to then be resold. These were all hashed out and put into law in 1980.

And that’s an important moment as suddenly the party who owned a copy was the rightful owner of a piece of software. Many of the provisions read as though we were dealing with book sellers selling a copy of a book, not dealing with the intricate details of the technology, but with technology those can change so quickly and those who make laws aren’t exactly technologists, so that’s to be expected. 

Source code versus compiled code also got tested. In 1982 Williams Electronics v Artic International explored a video game that was in a ROM (which is how games were distributed before disks and cassette tapes. Here, the Third Circuit weighed in on whether if the ROM was built into the machine, if it could be copied as it was utilitarian and therefore not covered under copyright. The source code was protected but what about what amounts to compiled code sitting on the ROM. They of course found that it was indeed protected. 

They again weighed in on Apple v Franklin in 1983. Here, Franklin Computer was cloning Apple computers and claimed it couldn’t clone the computer without copying what was in the ROMs, which at the time was a remedial version of what we think of as an operating system today.  Franklin claimed the OS was in fact a process or method of operation and Apple claimed it was novel. At the time the OS was converted to a binary language at runtime and that object code was a task called AppleSoft but it was still a program and thus still protected. One and two years later respectively, we got Mac OS 1 and Windows 1.

1986 saw Whelan Associates v Jaslow. Here, Elaine Whelan created a management system for a dental lab on the IBM Series One, in EDL. That was a minicomputer and when the personal computer came along she sued Jaslow because he took a BASIC version to market for the PC. He argued it was a different language and the set of commands was therefore different. But the programs looked structurally similar. She won, as while some literal elements were the same, “the copyrights of computer programs can be infringed even absent copying of the literal elements of the program.” This is where it’s simple to identify literal copying of software code when it’s done verbatim but difficult to identify non-literal copyright infringement. 

But this was all professional software. What about those silly video games all the kids wanted? Well, Atari applied for a copyright for one of their games, Breakout. Here, Register of Copyrights, Ralph Oman chose not to Register the copyright. And so Atari sued, winning in the appeal.

There were certainly other dental management packages on the market at the time. But the court found that “copyrights do not protect ideas – only expressions of ideas.” Many found fault with the decision and  the Second Circuit heard Computer Associates v Altai in 1992. Here, the court applied a three-step test of Abstraction-Filtration-Comparison to determine how similar products were and held that Altai's rewritten code did not meet the necessary requirements for copyright infringement.

There were other types of litigation surrounding the emerging digital sphere at the time as well. The Computer Fraud and Abuse Act came along in 1986 and would be amended in 89, 94, 96, and 2001. Here, a number of criminal offenses were defined - not copyright but they have come up to criminalize activities that should have otherwise been copyright cases. And the Copyright Act of 1976 along with the CONTU findings were amended to cover the rental market came to be (much as happened with VHS tapes and Congress established provisions to cover that in 1990. Keep in mind that time sharing was just ending by then but we could rent video games over dial-up and of course VHS rentals were huge at the time.

Here’s a fun one, Atari infringed on Nintendo’s copyright by claiming they were a defendant in a case and applying to the Copyright Office to get a copy of the 10NES program so they could actually infringe on their copyright. They tried to claim they couldn’t infringe because they couldn’t make games unless they reverse engineered the systems. Atari lost that one. But Sega won a similar one soon thereafter because playing more games on a Sega was fair use. Sony tried to sue Connectix in a similar case where you booted the PlayStation console using a BIOS provided by Connectix. And again, that was reverse engineering for the sake of fair use of a PlayStation people payed for. Kinda’ like jailbreaking an iPhone, right? Yup, apps that help jailbreak, like Cydia, are legal on an iPhone. But Apple moves the cheese so much in terms of what’s required to make it work so far that it’s a bigger pain to jailbreak than it’s worth. Much better than suing everyone. 

Laws are created and then refined in the courts. MAI Systems Corp. v. Peak Computer made it to the Ninth Circuit Court of Appeals in 1993. This involved Eric Francis leaving MAI and joining Peak. He then loaded MAI’s diagnostics tools onto computers. MAI thought they should have a license per computer, but yet Peak used the same disk in multiple computers. The crucial change here was that the copy made, while ephemeral, was decided to be a copy of the software and so violated the copyright. We said we’d bring up that EULA though. In 1996, the Seventh Circuit found in ProCD v Zeidenberg, that the license preempted copyright thus allowing companies to use either copyright law or a license when seeking damages and giving lawyers yet another reason to answer any and all questions with “it depends.”

One thing was certain, the digital world was coming fast in those Clinton years. I mean, the White House would have a Gopher page and Yahoo! would be on display at his second inauguration. So in 1998 we got the Digital Millennium Copyright Act (DMCA). Here, Congress added to Section 117 to allow for software copies if the software was required for maintenance of a computer. And yet software was still just a set of statements, like instructions in a book, that led the computer to a given result. The DMCA did have provisions to provide treatment to content providers and e-commerce providers. It also implemented two international treaties and provided remedies for anti-circumvention of copy-prevention systems since by then cracking was becoming a bigger thing. There was more packed in here. We got MAI Systems v Peak Computer reversed by law, refinement to how the Copyright Office works, modernizing audio and movie rights, and provisions to facilitate distance education. And of course the DMCA protected boat hull designs because, you know, might as well cram some stuff into a digital copyright act. 

In addition to the cases we covered earlier, we had Mazer v Stein, Dymow v Bolton, and even Computer Associates v Altai, which cemented the AFC method as the means most courts determine copyright protection as it extends to non-literal components such as dialogue and images. Time and time again, courts have weighed in on what fair use is because the boundaries are constantly shifting, in part due to technology, but also in part due to shifting business models. 

One of those shifting business models was ripping songs and movies. RealDVD got sued by the MPAA for allowing people to rip DVDs. YouTube would later get sued by Viacom but courts found no punitive damages could be awarded. Still, many online portals started to scan for and filter out works they could know were copy protected, especially given the rise of machine learning to aid in the process. But those were big, major companies at the time. IO Group, Inc sued Veoh for uploaded video content and the judge found Veoh was protected by safe harbor. 

Safe Harbor mostly refers to the Online Copyright Infringement Liability Limitation Act, or OCILLA for short, which shields online portals and internet service providers from copyright infringement. This would be separate from Section 230, which protects those same organizations from being sued for 3rd party content uploaded on their sites. That’s the law Trump wanted overturned during his final year in office but given that the EU has Directive 2000/31/EC, Australia has the Defamation Act of 2005, Italy has the Electronic Commerce Directive 2000, and lots of other countries like England and Germany have had courts find similarly, it is now part of being an Internet company. Although the future of “big tech” cases (and the damage many claim is being done to democracy) may find it refined or limited.

In 2016, Cisco sued Arista for allegedly copying the command line interfaces to manage switches. Cisco lost but had claimed more than $300 million in damages. Here, the existing Cisco command structure allowed Arista to recruit seasoned Cisco administrators to the cause. Cisco had done the mental modeling to evolve those commands for decades and it seemed like those commands would have been their intellectual property. But, Arista hadn’t copied the code. 

Then in 2017, in ZeniMax vs Oculus, ZeniMax wan a half billion dollar case against Oculus for copying their software architecture. 

And we continue to struggle with what copyright means as far as code goes. Just in 2021, the Supreme Court ruled in Google v Oracle America that using application programming interfaces (APIs) including representative source code can be transformative and fall within fair use, though did not rule if such APIs are copyrightable. I’m sure the CP/M team, who once practically owned the operating system market would have something to say about that after Microsoft swooped in with and recreated much of the work they had done. But that’s for another episode.

And traditional media cases continue. ABS Entertainment vs CBS looked at whether digitally remastering works extended copyright. BMG vs Cox Communications challenged peer-to-peer file-sharing in safe harbor cases (not to mention the whole Napster testifying before congress thing). You certainly can’t resell mp3 files the way you could drop off a few dozen CDs at Tower Records, right? Capitol Records vs ReDigi said nope. Perfect 10 v Amazon, Goldman v Breitbart, and so many more cases continued to narrow down who and how audio, images, text, and other works could have the right to copy restricted by creators. But sometimes it’s confusing. Dr. Seuss vs ComicMix found that merging Star Trek and “Oh, the Places You’ll Go” was enough transformativeness to break the copyright of Dr Seuss, or was that the Fair Use Doctrine? Sometimes I find conflicting lines in opinions. Speaking of conflict…

Is the government immune from copyright? Allen v Cooper, Governor of North Carolina made it to the Supreme Court, where they applied blanket copyright protections. Now, this was a shipwreck case but extended to digital works and the Supreme Court seemed to begrudgingly find for the state, and looked to a law as remedy rather than awarding damages. In other words, the “digital Blackbeards” of a state could pirate software at will. Guess I won’t be writing any software for the state of North Carolina any time soon!

But what about content created by a state? Well, the state of Georgia makes various works available behind a paywall. That paywall might be run by a third party in exchange for a cut of the proceeds. So Public.Resource goes after anything where the edict of a government isn’t public domain. In other words, court decision, laws, and statutes should be free to all who wish to access them. The “government edicts doctrine” won in the end and so access to the laws of the nation continue to be free.

What about algorithms? That’s more patent territory when they are actually copyrightable, which is rare. Gottschalk v. Benson was denied a patent for a new way to convert binary-coded decimals to numerals while Diamond v Diehr saw an algorithm to run a rubber molding machine was patentable. And companies like Intel and Broadcom hold thousands of patents for microcode for chips.

What about the emergence of open source software and the laws surrounding social coding? We’ll get to the emergence of open source and the consequences in future episodes!

One final note, most have never heard of the names in early cases. Most have heard of the organizations listed in later cases. Settling issues in the courts has gotten really, really expensive. And it doesn’t always go the way we want. So these days, whether it’s Apple v Samsung or other tech giants, the law seems to be reserved for those who can pay for it. Sure, there’s the Erin Brockovich cases of the world. And lady justice is still blind. We can still represent ourselves, case and notes are free. But money can win cases by having attorneys with deep knowledge (which doesn’t come cheap). And these cases drag on for years and given the startup assembly line often halts with pending legal actions, not many can withstand the latency incurred. This isn’t a “big tech is evil” comment as much as “I see it and don’t know a better rubric but it’s still a thing” kinda’ comment.

Here’s something better that we’d love to have a listener take away from this episode. Technology is always changing. Laws usually lag behind technology change as (like us) they’re reactive to innovation. When those changes come, there is opportunity. Not only has the technological advancement gotten substantial enough to warrant lawmaker time, but the changes often create new gaps in markets that new entrants can leverage. Either leaders in markets adapt quickly or see those upstarts swoop in, having no technical debt and being able to pivot faster than those who previously might have enjoyed a first user advantage. What laws are out there being hashed out, just waiting to disrupt some part of the software market today?