ftp.ee.pdx.edu/2014.02.ftp.ee.pdx.edu.tar/ftp.ee.pdx.edu/pub/lpf/kapor.testimony

Text File | 1992-11-03 | 12KB | 211 lines

    Testimony of Mitchell D. Kapor in congressional hearing


    I want to thank the Committee for this opportunity to testify on some
of the intellectual property questions surrounding software.  This is an
area that I  personally find fascinating and provocative - so please
excuse me if my testimony ends up leaving you with more questions than
answers.

    With no joke intended, software has been very, very good to me.  I was
fortunate enough to find a collaborator to craft an innovative piece of
software called Lotus 1-2-3 - and that software evolved into both an
industry standard and turned Lotus Development Corp. into one of
America's most successful software companies.

    As you are no doubt aware, the personal computer revolution was
catalyzed by young rebels, dropouts, and visionaries who  helped forge
over the last decade what has become a multibillion dollar industry of
global import.  We fundamentally changed how computers were used and how
business - and government - got work done by making computers useful and
accessible  to tens of millions of ordinary citizens without special
computer expertise.   I like to think the company I founded played an
important role in that.

    But because I am a software entrepreneur,  I would rather launch a new
company based on new software ideas - and that's what I've done.  I left
Lotus to start a new company with a different approach to software.
The perspective on intellectual property I want to give you isn't one
grounded in theory or law - it's one based on my experiences trying to
turn innovative ideas into real businesses.

    Let me make a bias clear up front: I like new ideas. I like being part
of a creative community of software designers where we each try to
surpass each  other.   I like the fact that the market tells us which
innovations excite them and which innovations don't.  I like the fact
that it is a punishable crime if people copy and distribute pirate
versions of our software.

    Let me tell you what I wouldn't like.  I wouldn't like companies acting
like they  believed they have a monopoly on a good idea.    I wouldn't
like it if companies forget that, like it or not, they also learn from
their competitors and their competitor's customers.

    Pamela Samuelson, an intellectual property scholar at Emory University
in Atlanta  whose work I much admire, describes intellectual property
advocates ranging along a scale from minimalists... who believe in the
bare essentials of protection - to the maximalists - who insist that
intellectual property is so precious that it must be surrounded by a
phalanx of razor-edged laws.

    I am a minimalist. That doesn't mean I don't care about intellectual
property protection - it means that I don't want protection to become
the dominant theme or even a dominant theme of this industry.  If you
want to keep this industry as vibrant and successful as it's been, then
a properly constructed intellectual property policy will respect
protection but give preference to innovation.   Over-protection of
intellectual property is as pernicious as under-protection in its
stifling effects on innovation and consequent loss to society.

    There is no question, as I look at my industry, that there has been an
unsteady but stubborn march to extend the scope of copyright.  Twisting
and straining each step of the way to secure additional copyright
protections, too many companies seem to have decided that's its easier
to sue their rivals than compete with them.  Litigation is becoming a
business tactic - not a practice of last resort.  Software should not be
an industry driven by litigation.  That would be bad for both the
industry and its millions of customers. I think you can craft policies
to prevent that.

    It would be great if we could just draw a line and, say, outlaw
software clones of specific application programs.  The litigation
presently before the court between Lotus Development Corp. and Paperback
Software is not what I'm complaining about here.  If that's where it all
stopped - OK.  But I'm concerned where the line ultimately gets drawn.
For example, the next foreseeable step in which litigants seek to
protect individual features and elements of programs, per se, under
copyright, would be one step too far.

    Speaking from my own observation, the so-called spreadsheet clones have
achieved but the tiniest of market shares - I don't believe that's an
accident.  Cloning of applications is an unviable business strategy.
Success in software business depends on a host of factors, including
one's documentation, training,  customer support, and the quality of
customer relationships in general.    All these favor the large,
well-financed software companies to begin with.   For another, software
is so complex and idiosyncratic that, unless the person is deliberately
copying the internals of the code, a reproduction of a sophisticated
application  so flawless that it has equivalent quality and utility to
the original is usually sufficiently difficult and expensive to produce
that any firm with the economic and intellectual resources to do a good
job at this prefers to create original products which represent a
greater opportunity.

    It's the nature of software for ideas to slosh and flow back and forth
between competitors, companies and industries.  Like architecture and
the movies, software is a medium for ideas.    At my own company, ON
Technology, we spent months simplifying the interface for our first
program so that virtually anybody can use it effectively within minutes
of booting it up.  The good ideas are right there on the surface of the
software for everyone to see.

    The purpose of my telling you this isn't to advertise the quality of
On's design but to inform you that I don't see any way to prevent my
potential competitors from profiting from our efforts.  If they can
replicate our efforts - or go them one better - because our approach
inspired them to do so - more power to them.   I would only call my
lawyer if we found that these competitors had not just copied the idea -
but the actual lines of code underlying it.

    That suggests a practical software intellectual property guideline for
your consideration: If, as a software designer, I can use a program and
learn from it, without copying its internals, then I should be free to
use the knowledge that I've gained as long as I expressed the ideas in
my own way.

    In other words, we should not extend copyright protection to ideas, but
confine it narrowly, essentially to literal expression.

    With regard to patents, I think there are even more problems, at least
in prospect, than with respect to copyright.

    Because it is impossible to know what patent applications are in the
application pipeline, it is entirely possible, even likely, to develop
software which incorporates features that are the subject of another
firm's patent application.  Thus, there is no avoiding the risk of
inadvertently finding oneself being accused of a patent infringement
simply because no information was publicly available at the time which
could have offered guidance of what to avoid.  Please, require
publication of patent application within a short period of their
filing.

    The period of patent protection, 17 years, no longer makes sense in an
era when an entire generation of technology passes within a few years.
My recommendation would be to consider substantially shortening the
length of protection.

    Most importantly, it is my heartfelt belief that many of the increasing
number of recently issued software patents, concerning, for instance,
fundamental techniques and artifacts of user interfaces, should never
have been granted in the first place because of their failure to qualify
as either novel or non-obvious.   Some patents appear to preempt
automation of common functions such as footnoting.  This to me is like
allowing a patent on the round steering wheel.  The breadth of claims
being allowed in these matters, is, in the words of Brian Kahin, Adjunct
Research Fellow at Harvard's Kennedy School of Government,  "often at a
level of abstraction that is shocking to the uninitiated."

    If some future litigant is successful in upholding rights to one of
these "bad"  patents It will require expensive and time-consuming
litigation, whose outcome is frankly uncertain,  to defend the rights of
creators which should never have been challenged in the first place.  If
I speak very bluntly here, it is only because I am deeply concerned that
a single bad patent court fight with a negative outcome, like a major
environmental  accident, could have catastrophic effects.  I don't think
we can afford the risk.

    I think it's vital for people here to appreciate that software design,
development and innovation aren't just abstract concepts but professions
practiced by a community of people.  These people are constantly
talking, exchanging ideas, discussing hypotheticals  and exploring new
ways to represent their thoughts.  It's like Hollywood without the
glitz.  Some companies are so pro-protection they forget that they are
not simply producers of new ideas but also consumers of others'.  It's
the shortsightedness of companies that "I have to protect what's mine"
versus the longer term view that we're all better off if we look for
ways to learn from each other  rather than sue each other.

    Some firms would like it if all of their works were fully protected,
but they were free to benefit from the efforts  of others without much
regard for intellectual property rights.  They must be reminded that the
law has an obligation to be even-handed.

    Of course, complicating all this is that software is a different kind
of intellectual property beast.  Of course, you all know this and you're
probably weary of people like me coming up and testifying that our
particularly niche is unique.  I would, however, strongly recommend that
you take a look at some of the pioneering legal work of Vanderbilt Law
School Professor Jerome Reichman, who does an excellent job of
exploring the "hybrid" nature of software as intellectual property -
creations which defy neat attempts to fit them into either patent or
copyright regimes.  You may also want to consider seriously Professor
Samuelson's observation that software is both a writing and a machine in
a legal system which that has assumed something could be either a
"writing" or a "machine" but not both.  I find myself constantly nodding
my head in agreement when I read these people's works.

    I think it's too early for another CONTU.  What's more, I honestly
believe that this industry isn't mature enough to cope with a barrage of
new laws.  Congress could help both the software industry and its
customers if when it passes laws their legislative histories tell the
courts that, when they consider a copyright case, they should err on the
side of innovation over protection.

    Increasingly, the economic value that we add to things in this society
and the global economy is this intangible, crystallized mindstuff called
software.  America's software industry happens to be the best in the
world - and that isn't due to intellectual property lawsuits.  The
challenge is, what regime is going to continue to support our ability to
do well.  If our policy comes out of court battles, then we're going to
have an industry that looks like it was shaped by lawyers and judges -
not by technically innovative and market-sensitive entrepreneurs.

    There's no question that this Committee is grappling with one of the
most important, stimulating  and provocative issues in the Information
Economy.  I want to let you know that I would welcome any opportunity to
help you better define those issues and learn how you believe
intellectual property policy and the software industry should
intersect.