The Compatibility of Patent Law and the Internet

Fordham Law Review, Dec 2010

By Jeanne C. Fromer, Published on 01/01/10

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The Compatibility of Patent Law and the Internet

The C ompatibility of Patent Law and the Internet Jeanne C. Fromer 0 0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact - Article 4 FORDHAM LA W RE VIE W unanticipated change through unfiltered contributions from broad and varied audiences."' 7 Zittrain associates five factors with generativity: (1) how extensively a system or technology leverages a set of possible tasks; (2) how well it can be adapted to a range of tasks; (3) how easily new contributors can master it; (4) how accessible it is to those ready and able to build on it; and (5) how transferable any changes are to others. 8 The same generativity, then, that yields for so many the Internet's pleasures of, say, Google Earth, digital music and television episodes on demand, and Wikipedia, also enables hackers to steal these same people's credit cards or other personal details, crash their software, and bring down networks. After colorfully laying out the history of computing and the Internet and how generativity is central to the success of each, 9 Zittrain dedicates the last third of his book to exploring the "How To Stop It" segment of the book's title. What seems to animate Zittrain's proposed solutions is his desire to preserve and foster good generativity, while quashing the bad kind. He is worried about a future in which the good generativity is stamped out along with the bad, with companies providing tethered-but safe-information appliances designed with firmware or software to perform only particular specified functions (such as a digital music player, a GPS system, and even a digital toaster). Tethered appliances, according to Zittrain, would perform their specified function well but would not be generative principally because they would not be adaptable to other tasks and would not easily be built upon.' 0 That is, the music player would not make toast, nor would the toaster be able to give GPS-based directions or be built to toast bread in some new way. General-purpose computers could in theory do all three tasks and then some. In light of general-purpose computers' generativity, Zittrain seeks to offer another way to the future. For example, he suggests that general-purpose computers might have a safe "green" zone to store important data and trustworthy software and a more risky "red" zone on which to experiment with other software."1 According to his proposal, some "red" zone software might turn out to be harmful but removable before damaging anything in the "green" zone, while some might become reliable and beneficial enough for subsequent inclusion in the "green" zone. 12 Most centrally, Zittrain suggests that Internet users need to be provided with more and better information about which Internet applications and sites are reliable to use without infecting the user's computer with a virus or hacking the user's data.13 7. Id. at 70 (emphasis omitted). 8. Id. at 71. 9. Id. at 7-148. 10. Id. at 101-03. 11. Id. at 154-57. 12. Id. 13. Id. at 157-62. David Post takes a different tack than Zittrain. He writes about the Internet's development in the context of Thomas Jefferson's experiences and thoughts, which at first glance seems near-Mesozoic compared with the contemporary fast-paced growth of the Internet. Post nonetheless establishes the analogy's fit, suggesting that Jefferson's animating republican beliefs-a penchant for self-governing, but interlinked, communities, rather than strong, centralized government-is precisely what has made the Internet such a success thus far and ought to be preserved. As one of many examples of Jefferson's republicanism, Post points to Jefferson's approach to the over 800,000 square miles of land acquired in the Louisiana Purchase: let subterritories within the purchase govern themselves, with the power to petition to become states of the United States down the line. 14 As Jefferson explained, "I have much confidence that we shall proceed successfully for ages to come, and that ... it will be seen that the larger the extent of country, the more firm its republican structure, if founded, not on conquest, but in principles of compact and equality." 15 Post applies these Jeffersonian principles to the story of the Internet's development, indicating how time and time again, the Internet was structured in a decentralized fashion, which allowed for its exponential growth. For example, Post describes the Internet protocol for transferring data over the Internet, TCP/IP. 16 In simplified form, TCP/IP works to transport raw data from users' applications (such as e-mail programs or Web browsers) to their destination. The protocol does not concern itself with what the data represent-be they part of a text message, a picture, sound, or something else-but just (...truncated)


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Jeanne C. Fromer. The Compatibility of Patent Law and the Internet, Fordham Law Review, 2010, Volume 78, Issue 6,