The Time and Place for "Technology-Shifting" Rights

ABSTRACT INTRODUCTION I. THE INTELLECTUAL PROPERTY CHALLENGE: MOTIVATING Innovation without Impeding Progress II. FINDING BALANCE: THE FUNDAMENTAL PROBLEM OF LEGISLATIVE IMPLEMENTATION A. The Federal Patent Statute: Rights and Exceptions 1. Providing the Required Time-Limited Incentive 2. Furthering Progress. a. Disclosure b. Reservations: Statutory Subject Matter, Novelty and Obviousness/Exhaustion and Repair B. The Federal Copyright Statute: Rights and Exceptions 1. Providing the Required Time-Limited Incentive 2. Furthering Progress a. Disclosure b. Reservations: Fair Use and Sections 107-122 C. Trademarks III. THE UNBALANCING EFFECT OF TECHNOLOGICAL ACCELERATION IV. THE ROLE OF THE CONSUMER IN PROMOTING PROGRESS (EARLY ADOPTERS) V. CONGRESSIONAL AND JUDICIAL BALANCE POINTS A. Congress's Balance B. The Courts' Balance 1. Deference to Congressional Balancing 2. Judicial Independent Judgment VI. RESTORING THE BALANCE A. The Preferred Solution: A Statutory Right to "Technology-Shifting" B. Judicial Intervention INTRODUCTION Intellectual property laws require a balance between the need to motivate innovation and the need to prevent that motivation from stifling further innovation. The foundation of copyright and patent law (1) is Article I, Section 8 of the Constitution, which gives Congress the power to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries," (2) but that power is subject to the duty "[t]o promote the Progress of Science and useful Arts." (3) That congressional power is implemented through federal patent (35 U.S.C.) and copyright (17 U.S.C.) statutes, each of which provide general protection for innovators coupled (consistent with the constitutional duty) with exceptions designed to minimize certain aspects of the innovation-stifling effects of monopolies. While patents and copyrights are authorized by the same clause of the Constitution, their implementing statutes differ and congressional attitudes toward the two regimes have been radically different. While patent rights have been under attack and restricted, Congress has expanded copyright owners' rights, to the point where several Supreme Court Justices have questioned whether the rights exceed constitutional authority. Overly broad intellectual property rights injure competitors and consumers. A particularly vulnerable class of consumers consists of "early adopters," consumers who adopt early stage technology before an industry standard is established (for example, buyers of Radio Shack's Tandy computer, Sony's Betamax videorecorder or Toshiba's HDD high-definition DVD players). These consumers invest not only in the machinery necessary to use the early stage technology but also in the time and effort to learn how to make use of the technology before it has been fully tested by large groups of users, and in the development of libraries of data that can only be accessed using the new machinery. These early adopters contribute significantly to the ultimate success or failure of new technologies and do so at the risk of losing their investment if a different technology prevails as the industry standard, rendering their choice obsolete. Congress has the initial responsibility for striking the appropriate balance between motivation of innovators on the one hand, and prevention of innovation-stifling overprotection (and consequently protection of the general public) on the other. There are examples of congressional balancing in both the copyright and patent statutes. The copyright statute contains a fair use exception, which permits the use of copyrighted works for purposes such as criticism, and also contains an exclusion of protection for ideas, which permits experimentation with alternative expressions of underlying concepts. …