The Evolving Product and the Duty of Ongoing Design

Randal C. Picker, author of the article “Rewinding Sony: The Evolving Product, Phoning Home and the Duty of Ongoing Design” is concerned about the impact the technological changes on copyright. His specific concern is regarding the Sony test and the emergence of new products. In his opinion, the Sony test , which stated that, in order to accomplish a balance between the copyright holder's demand for effective protection of his or her statutory monopoly, and the other's rights to engage in unrelated commercial areas, if the product is widely used for legitimate, unobjectionable purposes, it will not only constitute contributory infringement, (p. 6) establishing this way the substantial non-infringing use test as a “defense”. His concern relies on the assumption that the product in the Sony case was “lumpy and episodic” for having well defined, and unchangeable features at the time of its release, as opposed to the products in this era that he calls network products.

According to him even though the substantial non-infringing test has the virtue of providing a safe harbor for innovation, it also has the vice of not giving the right incentives to invest in developing in technologies that have the purpose of preventing and eliminating infringing uses.

Hence, he proposes a test that efficiently adapts to a network product such as Grokster or Napster, which he defines as a result from the “emergence of distributed storage, machine intelligence and cheap communication” and that have the ability of “evolv[ing] even after versions of the product have been put into the hands of consumers” (p. 34), and therefore addresses the aforementioned vice.

He defines his test as a conditional one in which the producer has two options:

a) to let go the product without keeping any control forward on the product and without having the chance to evolve the product in response to actual use, in which case the producer should face a hard use test, or

b) to ensure that the product can communicate to its source, so the product's system can be updated, in which case the producer should face a substantial non-infringing use test coupled with the duty to eliminate any infringing use, as long as it is cost-effective to do so (p. 24)

I agree with the author that “we shouldn't build a test that doesn't match the opportunities of the times” (p. 25), but also, because I agree with him that “we need to focus on the process of product evolution, the choices that designers make regarding their ability to evolve the product in light of evolving use and who should have a stake in controlling the evolution” (p. 4), I definitely do not believe that his test promotes innovation as much as he asserts it does.

Firstly, it is my viewpoint that we still have no idea to what extent these new “network products” are going to evolve, and as Lawrence Lessig explained in his book “The Future of Ideas”, when you do not know or you do not have a clear idea of how a resource (in this case a product) will be used, the best thing to do is to “leave it in the common, so that many can experiment with different uses” (p. 89). In my opinion, talking about “controlling the evolution” goes against promotion of innovation because as the author admits, “design ceases to be a one-time event and instead becomes a continuous process” (p. 35). Lessig mentions the Internet as an example of this statement, I would mention Napster. If it were not for Napster, we would not have acknowledged the multiple uses, both commercial and academic, importance and reaches of the peer to peer distribution, and therefore, we would not have had all the business models we now have to download music.

Secondly, even though the author acknowledges his concern about who would bear the costs of creating these “filters” (p. 27), the fact that he just decides to impose those costs on the creators in my opinion, confirms my observation that his model only works for creators who have the means to afford these costs. The fact that the author's model provides a scheme in which, if someone would like to recourse to the substantial non-infringing use test and therefore, benefit from the “innovation safe harbor”, that someone (who by the way, should be recognized as an inventor, creator, innovator or artist as opposed to a mere manufacturer or producer) would have to invest, not only on the work or product, but also in what the author calls the “antidote.” In my opinion, this condition leaves room only to certain type of creators and prevents society from innovation that does not adapt to this market model. Imagine for example a programmer who is developing the software that, as everything else, can be negatively used. If he or she decides to distribute its software for free through the Internet, he or she will need to have a place to storage it. For these purposes, there are web sites such as Sourceforge that supports these kinds of projects for free or for relatively low fees, but there are limits in the services they provide. However, if the programmer has to maintain a central base to which the product has to connect every once in a while to update itself, he or she will find him or herself in a situation in which, he or she has a lot of money to afford the kind of servers that have the proper capacity and the software to play the role of an automatic project manager.

Thirdly, I believe that there is another factor that should be taken into account within the author's model. Like him, I assert that “there is little reason to believe that the private incentive for ongoing control will match with the possible social costs and benefits” (p. 16). However, I am more concerned the social costs regarding the lack of privacy and security I will have in my computer for example and I am only a regular end user. Imagine now how the people responsible for national security must feel about having a system in which the software used will automatically will connect to a server and install programs, patches, updates, among other things, without even asking, just because some copyright holders feel threaten with the new means of distribution that this technological era brings. It is my viewpoint that we should consider the risks of lack of functionality due to changes in the features of the system, the risks of being attacked by viruses, or worms, and the risks of infringing the right to privacy given that spywares can be automatically installed and then inform third parties the activities of a particular end user.

Finally, as the author admits, I would emphasize my concern about the impact the use of digital rights management (DRM) has over the balance that the intellectual property system was originally supposed to pursue between the rights and incentives for inventors and creators and the user rights society was supposed to get as a result of the bargain of benefiting from innovation in return for the monopoly rights.

Sony Corp v. Universal City Studios, Inc. 464 US 417, 442 (1984)

Lawrence Lessig. The Future of Ideas.New York: Random House, 2001) at p. 89

Palmira Granados Moreno

2005-03-21T01:51:25