Alex Kozinski Quotes

This doctrine of law was settled, but in the technological and digital age some people have tried to extend the intellectual property doctrine to include some ideas if they idea is a procedure or a set of DNA instructions. Meanwhile, the legal doctrine has been and is, as stated by Brandeis in this quotation, is that new and original ideas are not intellectual property and are always in the public domain, no matter how original.

Stallman and others opposed copywriting of software and felt that computer programs were ideas and as such should not be able to be legally monopolized but they had to live with the law as it was. They started the open source software movement where many programmers developed software and made it freely available to the world. However, there were many companies who would take the free software which was very good, package it with their own brand and sell it. Stallman then created the copyleft concept. This meant that the open source programmers legally copyrighted the program and then created a license that anyone could have for free. But the license only gave them the right to use the software or give it freely to others. Charging money would be a copyright violation. So he and many others since used the copyright law to prevent others from interfering with or making money from distribution and Stallman named it “copyleft” meaning the other side of copyright. Thousands of major programs have been distributed this way. In some areas. It has been so successful that the free software became much more widely used than the products of Microsoft, Oracle or any of the other commercial software developers. Website development has become an example. Not only do many use it because the price is right but much of the open source free software is the best of breed. The Obama White House used a copyleft, free program for the White House website, not because they would save money—the Clinton White House had already licensed excellent commercial software. They chose the open source Drupal package because they thought it was the best available at any price.

Note that the only reason given in the constitution for protecting intellectual property was to promote the progress of science and useful arts. Inventors, would keep secret their inventions and techniques of manufacture and use in order to protect their economic interests. No one else would be able to benefit by understanding the invention and taking it further and increasing knowledge and understanding. So the Founding Fathers told Congress to establish a system where inventors would get a guarantee of a reasonable time to profit exclusively from the invention in exchange for making the invention public. The plans, methods and drawings had to be made public and until the 20th century a model of an invention had to be supplied to the Patent Office. Anyone could get an inexpensive copy of any patent and come and study the models. Today, most people believe that the reason for a patent system is to protect the intellectual property of the inventor, but that was not a purpose or even a serious consideration. The reason however was educational and to demystify technology and produce more science and technology which it did.

When Secretary of State, Jefferson ran the first American Patent Office. The Patent system was originally and educational program, not an intellectual property program. Inventors would keep all their technological secrets to themselves. The idea behind the original patent system was to give an inventor a limited monopoly on profiting from his invention in exchange for sharing his information and techniques with his countrymen—thus improving the technological competency of the entire society. The very first patents were available for public inspection for that reason. And even today, copies of patents are available easily for almost no cost. And few American ideas worked as well as our early patent system. Through its educational role and technology transfer, America came from technological nowhere to being the pre-eminent inventing nation of the world. The balance between public access to invention and innovation and preservation of some rights to the creator of intellectual property is key to modern development.

Although most people do not realize it, ideas cannot be copyrighted under present and traditional copyright law. The manifestation of the idea, the specific design, words, fonts, and layout can be copyrighted, but someone else can legally use and publish that idea with a different design and words.

In the early years of our nation, there was not much intellectual property being developed in America. We were an underdeveloped nation, and we took whatever we could get regardless of laws. Alexander Hamilton for example urged obtaining industrial trade secrets and even machines by whatever means was necessary. However in the latter part of the 19th century, Nathaniel Hawthorns, Mark Twain and other creative Americans persuaded the government to join copyright conventions; we had become the victim of intellectual piracy rather than the pirates. Then we became the leading nation in advocating and enforcing intellectual property rights. This coincided with our becomng the leading producer of intellectual property. Intellectual property rights has always been an issue of “whose ox was gored.” The US position is somewhat hypocritical given our early history. However, respect for intellectual property rights, we now argue, in our modern global economy will encourage businesses to not only invest in developing countries but allow their technology and trade secrets to be used in the developing nation.