Technology and Intellectual Property: Out of Sync or Hope for the Future?

Fordham Intellectual Property, Media and Entertainment Law Journal Volume 23 Volume XXIII Number 2 Volume XXIII Book 2 Article 8 2013 Technology and Intellectual Property: Out of Sync or Hope for the Future? Bradford L. Smith Microsoft Corporation Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Intellectual Property Law Commons Recommended Citation Bradford L. Smith, Technology and Intellectual Property: Out of Sync or Hope for the Future?, 23 Fordham Intell. Prop. Media & Ent. L.J. 619 (2013). Available at: https://ir.lawnet.fordham.edu/iplj/vol23/iss2/8 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact . Technology and Intellectual Property: Out of Sync or Hope for the Future? Cover Page Footnote This Essay follows from a speech presented at the Fordham Intellectual Property Law Institute’s Twentieth Annual Conference on April 13, 2012. The author is grateful for the advice and assistance of Susan Mann, Jason Albert, and Kate Behncken of Microsoft Corporation and Marty Hansen and Jeffrey Kosseff of Covington and Burling in the finalization of this piece. This article is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol23/iss2/8 C09_SMITH (DO NOT DELETE) 3/18/2013 10:55 AM Technology and Intellectual Property: Out of Sync or Hope for the Future? Bradford L. Smith INTRODUCTION ............................................................................. 619 I. HISTORICAL EXAMPLES OF TECHNOLOGICAL INNOVATION DRIVING LEGAL CHANGE ....................... 622 II. EVOLUTION OF INTELLECTUAL PROPERTY PROTECTION OF SOFTWARE ......................................... 627 A. Copyright or Patent? ............................................. 628 B. Software Rental Policies ........................................ 631 III. CURRENT ISSUES IN INTELLECTUAL PROPERTY REFORM ....................................................................... 632 A. Cries of Battle, and Inching Toward Solutions...... 632 B. A Selection of Current IP Issues ............................ 635 1. Standard Essential Patents ............................... 635 2. Online Piracy ................................................... 637 3. Patent Trolls ..................................................... 639 4. Trade Secret Theft............................................ 641 CONCLUSION................................................................................. 643 INTRODUCTION Are the pace of technological advances and the development of intellectual property law out of sync, or is there hope for the future? This question, posed at the Fordham Intellectual Property Law Institute’s Twentieth Annual Conference in April 2012, seems  This Essay follows from a speech presented at the Fordham Intellectual Property Law Institute’s Twentieth Annual Conference on April 13, 2012. The author is grateful for the advice and assistance of Susan Mann, Jason Albert, and Kate Behncken of Microsoft Corporation and Marty Hansen and Jeffrey Kosseff of Covington and Burling in the finalization of this piece.  General Counsel and Executive Vice President, Microsoft Corporation. 619 C09_SMITH (DO NOT DELETE) 620 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 3/18/2013 10:55 AM [Vol. 23:619 to present itself anew each time we read of the latest smartphone patent lawsuit or the most recent legislative battle to address online piracy. While this question is particularly timely today, it would have felt equally relevant and pressing had it been asked ten, fifty, or even one hundred years ago. In recent history, major technological changes have caused disagreement among groups on a particular intellectual property (IP) issue. The process of resolving these conflicts has gradually led to changes in the law. If we look back over a hundred years, or more, we can see clear parallels to the IP debates of today. Whether we consider the invention of the sewing machine in the nineteenth century, or the latest software advances of the twenty-first century, the similarities provide lessons about both the impact of technological inventions on the law, and the impact of law on new technology. This historical perspective is worth noting as we survey the recent past and look to the future. In 2012, a number of widely covered policy debates focused on developments at the interface of intellectual property and technology. The beginning of 2012 saw the United States Congress first appear to embrace, and then decisively reject, the Stop Online Piracy Act (SOPA)1 and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (“PROTECT IP Act,” or “PIPA”).2 Later in the year, members of Congress studied the disruptive impact of the assertion of standard essential patents (“SEPs”) in actions before the International Trade Commission (“ITC”) and urged that steps be taken to ensure that companies cannot use SEPs to thwart competition.3 1 H.R. 3261, 112th Cong. (2011). S. 968, 112th Cong. (2011). 3 Oversight of the Impact on Competition of Exclusion Orders to Enforce StandardEssential Patents: Hearing Before the S. Comm. on the Judiciary, 112th Cong. 2 (2012) (statement of Sen. Patrick Leahy, Chairman, S. Comm. on the Judiciary) (“In March, I wrote to the administration expressing concern that ITC exclusion orders can be misused to prevent rival technologies when holders of standard-essential patents fail to reach agreement on licensing terms. These orders can pose a significant threat to competition and innovation, especially where competitors have developed products based on a mutual commitment to license standard-essential patents on reasonable terms.”). 2 C09_SMITH (DO NOT DELETE) 2013] 3/18/2013 10:55 AM TECHNOLOGY AND INTELLECTUAL PROPERTY 621 During 2013, the debate over standard essential patents will continue. Further, we can expect government officials and regulators worldwide, but particularly at the ITC, to consider measures to address abusive practices by so-called “patent trolls.” Concerns about trade secret theft, fueled by high-profile cases both in the United States and elsewhere, are expected to draw the attention of industry and policymakers and will undoubtedly renew calls for government action.4 These and related IP debates will continue to shape the landscape of intellectual property for years to come. In this Essay, I suggest that major advances in technology often result in tension and conflict—initially between the inventor and follow-on competitors, though these are often also cast as a battle between innovators and consumers—and the protracted process of resolving suc (...truncated)