The Compatibility of Patent Law and the Internet
The C ompatibility of Patent Law and the Internet
Jeanne C. Fromer 0
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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)