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Jun 7, 2021

Once upon a time, the right to copy text wasn’t really necessary. If one had a book, one could copy the contents of the book by hiring scribes to labor away at the process and books were expensive. Then came the printing press. Now, the printer of a work would put a book out and another printer could set their press up to reproduce the same text. More people learned to read and information flowed from the presses at the fastest pace in history. 

The printing press spread from Gutenberg’s workshop in the 1440s throughout Germany and then to the rest of Europe and appearing in England when William Caxton built the first press there in 1476. It was a time of great change, causing England to retreat into protectionism, and Henry VIII tried to restrict what could be printed in the 1500s. But Parliament needed to legislate further. 

England was first to establish copyright when Parliament passed the Licensing of the Press Act in 1662, which regulated what could be printed. This was more to prevent printing scandalous materials and basically gave a monopoly to The Stationers’ Company to register, print, copy, and publish books. They could enter another printer and destroy their presses. That went on for a few decades until the act was allowed to lapse in 1694 but began the 350 year journey of refining what copyright and censorship means to a modern society. 

The next big step came in England when the Statute of Anne was passed in 1710. It was named for the reigning last Queen of the House of Stuart. While previously a publisher could appeal to have a work censored by others because the publisher had created it, this statute took a page out of the patent laws and granted a right of protection against copying a work for 14 years. Reading through the law and further amendments it is clear that lawmakers were thinking far more deeply about the balance between protecting the license holder of a work and how to get more books to more people. They’d clearly become less protectionist and more concerned about a literate society. 

There are examples in history of granting exclusive rights to an invention from the Greeks to the Romans to Papal Bulls. These granted land titles, various rights, or a status to people. Edward the Confessor started the process of establishing the Close Rolls in England in the 1050s, where a central copy of all those granted was kept. But they could also be used to grant a monopoly, with the first that’s been found being granted by Edward III to John Kempe of Flanders as a means of helping the cloth industry in England to flourish. 

Still, this wasn’t exactly an exclusive right but instead a right to emigrate. And the letters were personal and so letters patent evolved to royal grants, which Queen Elizabeth was providing in the late 1500s. That emerged out of the need for patent laws proven by Venicians in the late 1400s, when they started granting exclusive rights by law to inventions for 10 years. King Henry II of France established a royal patent system in France and over time the French Academy of Sciences was put in charge of patent right review.

English law evolved and perpetual patents granted by monarchs were stifling progress. Monarchs might grant patents to raise money and so allow a specific industry to turn into a monopoly to raise funds for the royal family. James I was forced to revoke the previous patents, but a system was needed. And so the patent system was more formalized and those for inventions got limited to 14 years when the Statue of Monopolies was passed in England in 1624. The evolution over the next few decades is when we started seeing drawings added to patent requests and sometimes even required. We saw forks in industries and so the addition of medical patents, and an explosion in various types of patents requested. 

They weren’t just in England. The mid-1600s saw the British Colonies issuing their own patents. Patent law was evolving outside of England as well. The French system was becoming larger with more discoveries. By 1729 there were digests of patents being printed in Paris and we still keep open listings of them so they’re easily proven in court. Given the maturation of the Age of Enlightenment, that clashed with the financial protectionism of patent laws and intellectual property as a concept emerged but borrowed from the patent institutions bringing us right back to the Statute of Anne, which established the modern Copyright system. That and the Statue of Monopolies is where the British Empire established the modern copyright and patent systems respectively, which we use globally today. Apparently they were worth keeping throughout the Age of Revolution, mostly probably because they’d long been removed from the monarchal control and handed to various public institutions.

The American Revolution came and went. The French Revolution came and went. The Latin American wars of independence, revolutions throughout the 1820s , the end of Feudalism, Napoleon. But the wars settled down and a world order of sorts came during the late 1800s. One aspect of that world order was the Berne Convention, which was signed in 1886. This  established the bilateral recognition of copyrights among sovereign nations that signed onto the treaty, rather than have various nations enter into pacts between one another. Now, the right to copy works were automatically in force at creation, so authors no longer had to register their mark in Berne Convention countries.

Following the Age of Revolutions, there was also an explosion of inventions around the world. Some ended up putting copyrighted materials onto reproducible forms. Early data storage. Previously we could copyright sheet music but the introduction of the player piano led to the need to determine the copyright ability of piano rolls in White-Smith Music v. Apollo in 1908. Here we saw the US Supreme Court find that these were not copies as interpreted in the US Copyright Act because only a machine could read them and they basically told congress to change the law. So Congress did.

The Copyright Act of 1909 then specified that even if only a machine can use information that’s protected by copyright, the copyright protection remains. And so things sat for a hot minute as we learned first mechanical computing, which is patentable under the old rules and then electronic computing which was also patentable. Jacquard patented his punch cards in 1801. But by the time Babbage and Lovelace used them in his engines that patent had expired. And the first digital computer to get a patent was the Eckert-Mauchly ENIAC, which was filed in 1947, granted in 1964, and because there was a prior unpatented work, overturned in 1973. Dynamic RAM was patented in 1968. But these were for physical inventions.

Software took a little longer to become a legitimate legal quandary. The time it took to reproduce punch cards and the lack of really mass produced software didn’t become an issue until after the advent of transistorized computers with Whirlwind, the DEC PDP, and the IBM S/360.

Inventions didn’t need a lot of protections when they were complicated and it took years to build one. I doubt the inventor of the Antikythera Device in Ancient Greece thought to protect their intellectual property because they’d of likely been delighted if anyone else in the world would have thought to or been capable of creating what they created. Over time, the capabilities of others rises and our intellectual property becomes more valuable because progress moves faster with each generation. Those Venetians saw how technology and automation was changing the world and allowed the protection of inventions to provide a financial incentive to invent. Licensing the commercialization of inventions then allows us to begin the slow process of putting ideas on a commercialization assembly line. 

Books didn’t need copyright until they could be mass produced and were commercially viable. That came with mass production. A writer writes, or creates intellectual property and a publisher prints and distributes. Thus we put the commercialization of literature and thoughts and ideas on an assembly line. And we began doing so far before the Industrial Revolution. 

Once there were more inventions and some became capable of mass producing the registered intellectual property of others, we saw a clash in copyrights and patents. And so we got the Copyright Act of 1909. But with digital computers we suddenly had software emerging as an entire industry. IBM had customized software for customers for decades but computer languages like FORTRAN and mass storage devices that could be moved between computers allowed software to be moved between computers and sometimes entire segments of business logic moved between companies based on that software. By the 1960s, companies were marketing computer programs as a cottage industry. 

The first computer program was deposited at the US Copyright Office in 1961. It was a simple thing. A tape with a computer program that had been filed by North American Aviation. Imagine the examiners looking at it with their heads cocked to the side a bit. “What do we do with this?” They hadn’t even figured it out when they got three more from General Dynamics and two more programs showed up from a student at Columbia Law. 

A punched tape held a bunch of punched cards. A magnetic tape just held more punched tape that went faster. This was pretty much what those piano rolls from the 1909 law had on them. Registration was added for all five in 1964. And thus software copyright was born. But of course it wasn’t just a metallic roll that had impressions for when a player piano struck a hammer. If someone found a roll on the ground, they could put it into another piano and hit play. But the likelihood that they could put reproduce the piano roll was low. The ability to reproduce punch cards had been there. But while it likely didn’t take the same amount of time it took to reproduce a copy Plato’s Republic before the advent of the printing press, the occurrences weren’t frequent enough to encounter a likely need for adjudication. That changed with high speed punch devices and then the ability to copy magnetic tape.

Contracts (which we might think of as EULAs today in a way) provided a license for a company to use software, but new questions were starting to form around who was bound to the contract and how protection was extended based on a number of factors. Thus the LA, or License Agreement part of EULA rather than just a contract when buying a piece of software. 

And this brings us to the forming of the modern software legal system. That’s almost a longer story than the written history we have of early intellectual property law, so we’ll pick that up in the next episode of the podcast!