MIT Department of Electrical Engineering & Computer Science

LEGAL PROTECTION FOR SOFTWARE:
A NEW APPROACH

Randall Davis
MIT EECS
and
Mitchell Kapor
Electronic Frontier Foundation
Adjunct Professor, Media Arts and Sciences

Why does the legal system seem so out of step with the realities of software, its markets, and the technology that drives it forward?

Over the past four years two technologists and two lawyers have worked to understand this, and in response, to synthesize a new conception of software protection, founded on a fundamental understanding of both software and the legal framework, and informed by an appreciation for the realities of economics, business, markets, and investment.

Our efforts were published recently in a long article in the Columbia Law Review, aimed primarily at the legal audience. In this talk we describe our findings from a technologist's view. We discuss what we found, explain why the legal framework is a frustrating, partial fit to software, and describe a new way to think about software protection that we believe can balance the spread of ideas for the common good with the protection that provides breathing room for innovative companies.

We also explain why we believe that software is but one member of a large family of technologies ill-served by the traditional intellectual property framework; our suggested revisions may thus have implications for information-rich innovation in a variety of fields.