The notion of a "new machine" being created by installation
of software on
a "general purpose" computer (one designed to
allow execution of broadly
functioning programs) is a clear
exemplar of a legal
fiction. Said
"new machine" is at best an ephemeral
entity, ceasing to exist when the
software is not in use.
I'm not using the phrase in a mainly pejorative
sense. As
the Wikipedia article explains, legal fictions may be
skillfully
employed by the courts to "advance public policy
and preserve the rights of
certain individuals and
institutions." Often the doctrine applies to evolving
situations where common law principles must apply to modern
circumstances,
e.g. when corporations are "persons" for the
sake of having a right to due
process.
However in the case of a general purpose computer considered
a
"new machine" upon introduction of specific programming,
the legal fiction
approach has become difficult to defend on
such grounds. History has moved on,
and Congress has seen
fit to provide software with copyright protection but
never
with legislative patent protection.
Lawyers like Quinn see this as a
terrible sin of omission,
and one can reasonably question their objectivity
since a
great deal of fees proceed from the premise that companies
need
"protection" for their IP (and consequently from the
risk of transgressing on
legitimized claims of other
companies).
Quinn to his credit feels an
obligation to square the circle
for individuals that express themselves by
writing programs.
You are free to do so, in his doctrine, just as you might
scribble a catchy tune on the back of an envelope. Just
don't try to run a
computer program you've written until you
have legal advice as to the necessary
licensing of software
patents.
For myself this is an infringement on First
Amendment
rights. To say that I may compose a political speech but
not convey
said speech to listeners without prior approval
would be obviously
unconstitutional. The same is for me
with computer programs. Writing them is
intimately tied to
running them, as the write-only approach is not only error
prone but pointless.
Hence the usefulness of the "new machine" legal
fiction is
called into question as mainly protecting the legal IP
fraternity
but otherwise not the common law and
constitutional/public policy rights of
individuals and
institutions (think schools and
libraries).
---
Rosser's trick: "For every proof of me, there is a
shorter proof of my negation". [ Reply to This | Parent | # ]
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