The Ownership
of Ideas in Computer Software:
A Contrast Between Trade Secrets, Copyrights, and
Chip-Mask Protections
John W. Snapper
It looks like we have two opposing traditions in intellectual property – one recognizing and the other eschewing the ownership of ideas. There are two issues here. On the one hand there is the issue of how we draw a line between ownership of ideas and the ownership that is granted in federal, intellectual property protections. On the other hand, there is the issue of whether there is a philosophical conflict between the aims of our federal protections and the ownership of ideas as exemplified in trade secrecy. We can see the difference clearly in a short diversion into patent policy.
Patent policy clearly depends on complementary features of trade secrecy policy. Patent policy has, in fact, greatly contributed to the use of trade secrecy: Since patentable material must be unfamiliar to industry at the time of the patent application, inventors who seek patents are expected to keep their work secret during development. All the same, not long ago, it looked as if the courts might find that federal patent policy conflicted with competing state trade secrecy policies. That view was decisively rejected in Kewanee v Bicron (416 U.S. 470 (1974)), which is the classic decision on the compatibility of patents and trade secrets. In that case, the court used the clichéd picture as a basis for finding ownership of ideas compatible with federal licensing policy. The Court suggested (although this was not the main argument) that trade secrets and patents do not conflict because they protect different things: ideas and applications of ideas.
On the other hand, the ownership of ideas is viewed as conflicting with federal licensing aims in a commonplace justification of patents as a social contract in which inventors exchange their secrets for monopolies over applications of their secrets. Some version of this “exchange for secrecy” argument appears in almost all discussions of patent law. (I am personally always surprised at the persistent popularity of the “exchange for secrecy” justification, given how patent policy has so encouraged trade secrecy in the R&D departments of corporations that plan to seek patents.) The purported line between ownership of patents and ownership of ideas has been used by both those who find a conflict between these forms of ownership and those who find them essential to each other. My claim, however, is that there are problems with the very distinction between the ownership of ideas and such ownership as is conferred by federal licensing.
Trade secrecy prevents the discovery and use of ideas in protected items. Copyright policy and the SCPA do not stand together in opposing trade secrecy restrictions on the discovery and dissemination of ideas. We can note the different extent to which they oppose the ownership of ideas by noting the extent to which reverse engineering (i.e. taking an item apart to see how it works) is discouraged or encouraged in chip-mask policy, copyright policy, and trade secrecy policy. Trade secrecy policy is clearly the extreme in discouraging reverse engineering. Copyright and mask registration have different standards for how we may reverse engineer and what we may do with what we discover.
Section #906 of the SCPA was clearly intended to address the issue of
reverse engineering. (Note its title.) This section, in fact, is meant to defend reverse engineering at a higher level than it is defended in copyright policy. This difference between copyright and mask registration is, for instance, a central point in Rep. Kastenmeier’s defense of the SCPA in a law review article (Kastenmeier and Remington, 70 Minnesota Law Review 426, 449 (1986)). Kastenmeier clearly thinks that by giving a stronger statement of the right of competitors to reverse engineer each other’s products, the SCPA has gone further than the copyright law in barring the ownership of ideas. The SCPA #906 addresses both the process of reverse engineering and the use of the results of reverse engineering. The two matters are deeply interconnected. Let us consider them in reverse order.
Go to: Using the Results of Reverse Engineering
Home > Research Resources > Software Ownership & Intellectual Property Rights > The Ownership of Ideas in Computing Software
HOME |
IN THE NEWS | RESEARCH RESOURCES
TEACHING
RESOURCES | STUDENT RESOURCES | LINKS
The Research Center on Computing & Society
at Southern Connecticut
State University
501 Crescent Street • New Haven, CT 06515
Director: (203) 392-6790 •
e-mail: webmaster@computerethics.org
© 2000 – 2007 – Research Center on Computing & Society