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noninfringing.22 Also, much of the software (and ideas about software) exchanged by researchers during the early and mid-1980s occurred outside the commercial marketplace. Increasingly, the exchanges took place with the aid of government-subsidized networks of computers.

Software firms often benefited from the plentiful availability of research about software, as well as from the availability of highly trained researchers who could be recruited as employees. Software developers began investing more heavily in research and development work. Some of the results of this research was published and/or exchanged at technical conferences, but much was kept as a trade secret and incorporated in new products.

By the late 1980s, concerns began arising in the computer science and related fields, as well as in the software industry and the legal community, about the degree of intellectual property protection needed to promote a continuation of the high level of innovation in the software industry.23 Although most software development firms, researchers, and manufacturers of computers designed to be compatible with the leading firms' machines seemed to think that copyright (complemented by trade secrecy) was adequate to their needs, the changing self-perception of several major computer manufacturers led them to push for more and "stronger" protection. (This concern has been shared by some successful software firms whose most popular programs were being "cloned" by competitors.) Having come to realize that software was where the principal money of the future would be made, these computer firms began reconceiving themselves as software developers. As they did so, their perspective on software protection issues changed as well. If they were going to invest in software development, they wanted "strong'' protection for it. They have, as a consequence, become among the most vocal advocates of strong copyright, as well as of patent protection for computer programs.24

22  

Samuelson and Glushko, Comparing the views of lawyers and user interface designers on the software copyright "look and feel" lawsuits, 30 Jurim. J. 121 (1989) (reporting the results of a survey reflecting this view).

23  

Id.

24  

IBM Corp., Apple Computer Corp., and Digital Equipment Corp. have been especially prominent advocates on these intellectual property issues. IBM, several other computer manufacturers, and a computer manufacturers association argued to the U.S. Supreme Court during the Benson appeal in the early 1970s that patent protection should not be available for computer program innovations. This is not their position today.



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