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Copyright Versus Patent in the Digital Age

Guest Column Catherine Preston

I have been thinking about the Microsoft- monopoly issue for some time. This is mainly because I am a die-hard Macintosh fan, and it still irks me that a more cumbersome, less elegant architecture seems to be winning the operating systems' war. As I have been told, time and again, that is the way the cookie crumbles. After all, Betamax was technically superior to VHS and it lost that battle; it happens.

I can accept that. Even if it means the ultimate demise of my beloved Apple, I can accept it. But there is a distinct difference between Windows 95 and VHS: the former is copyrighted, and the latter is patented.

This might seem like a small difference to those of us outside of the intellectual property market, but it is an absolutely crucial one. Patents are designed to protect inventors for long enough for them to recoup their research costs, but then give the public the benefit of their inventions. We see this with pharmaceuticals all the time for a few years, all you can find is the brand-name drug. When generic brands becomes available, we all save a bundle of money.

But the really critical thing about patented technology is that it is used as a platform for copyrighted material. The movies we watch on our VCR's all use the same technology to play and record, but the content of the movie is different, and therefore is protected by copyright.

Imagine this: When VHS was created, Sony managed to copyright, rather than patent, the design. That would mean that to own a VCR, you would have own a Sony machine, or a machine licensed by Sony. Sony, as we all know, also produces movies, which eventually come out on videotape. Under this scenario, only Sony would know the full capabilities of the VHS system; thus, their tapes would run much better, look much cleaner, and do cooler things than anyone else's movies. Sony would not only monopolize the VCR business, but it would dominate the videotape business as well. If anyone wanted their movies to look as good as Sony's, they would have to ask Sony to produce the tapes. The movie producer would be a much more significant factor in choosing what movie to watch than it is today.

This is precisely what has happened with operating systems. The operating system, because it is written in code instead of circuit design, is copyrighted. It is the arena in which all software applications word processing, games, spreadsheets or anything else must compete. It is precisely analogous to the VHS system.

It is true that VHS has an even larger market share than does Windows. It was patented, not copyrighted, and it still emerged as the dominant system, to the exclusion of all other videotape formats in the U.S. But the key point here is that many companies produce VHS recorders; if you want a Windows system, you still have to go to Microsoft, not a third party.

Therefore, it is not surprising that more and more people are using Word and Excel than WordPerfect and Lotus 1-2-3. It is not surprising that Netscape is concerned about being driven out of the browser market. If you control the operating system of computers, you can decide which programs will run well and which will not.

I doubt the wisdom of continuing to apply laws passed before pocket calculators were common to the computer age, and there are simply changes that we can implement to improve the system. We can make the distinction between operating systems and application software. We can use the existing patent and copyright laws to make our computing environments more efficient, productive and competitive. All that is necessary is the recognition that operating systems are patentable processes, not copyrightable writings.

I doubt that this reinterpretation would go over well with any of the powers-that-be at Microsoft, or Sun, or even Apple. It gives their products a 20 year protection instead of in perpetuity. Frankly, twenty years is too long for operating systems patents. Innovation in the computer age moves far faster than that. I passed a guy carrying a box of 5-inch floppies yesterday and realized that it had probably been six years since I had seen them. If we want to use patents to increase innovation and progress in computing, patents in the 5 to 10 year range would be appropriate. Though, of course, the shorter-lived the protection, the more screaming we will hear from the cyber-millionaires.

This screaming should not surprise us, nor should it prevent us from taking action. Monopolists, and this is a form of monopoly, never let go of their power without a fight. Whether it's railroads, steel, or telecommunications, breaking up monopolies requires the resolve of the government on behalf the American people.

Anti-trust and intellectual property laws exist to balance the benefit of the consumer and right of the company to make a profit on innovation. When that balance is out of whack, it is appropriate to take action. In many traditional industries, this meant the forcible break up of one large company into many small ones. Then, it wasn't the playing field that was a problem so much as the teams. In computing, the teams are able to compete, but the playing field is not level. And the playing field includes not just hardware, but the operating systems as well. Once we recognize that, we should all be able to enjoy the benefits of good competition.

Catherine Preston graduated from MIT in 1996.