December
1998, Issue 101
Hot
Chips
BEYOND
CHIPS
As
I mentioned, the Hot Chips folks usually throw in a
few hot topics to break up the bit banging. Consider
the presentation by Stanford Law School professor Margaret
Jane Radin who expounded on the "Basics of intellectual
property law, with applications to the computer and
electronics industries."
Too
many lawyers try to cloak the eccentric aspects of our
legal system in truth, justice, and highfalutin legalese.
Not Ms. Radin, who freely admits that much of what passes
for legal wisdom simply boils down to the foibles of
human nature.
I
don’t have time to go into the details of her four-hour
presentation (itself condensed from 90 hours of classroom
instruction). Needless to say, the framers’ simple desire,
"To promote the progress of science and useful
arts" (U.S. Constitution Article 1, Section 8),
has evolved into a morass of patent, copyright, trademark,
and trade-secret laws.
As
a 1s-and-0s man, I admit it’s hard to swallow much of
what the legal system presents as reason. For example,
patents should describe a nonobvious invention
in a way that specifically and particularly
enables others to use it in the best way.
Ever
tried to read a patent application? The real name of
the game is getting your slick legal firm to bamboozle
some patent-office clerk with a claim that covers everything
and discloses nothing. All the better if they can submarine
the thing and ensure plenty of fat wallets to squeeze
when it finally surfaces.
Copyright
law is especially wart ridden, with clauses for everything
from pantomime and choreographic works to pictorial
and sculptural works (which is why you can rent a video
but you can’t rent a music CD or software).
By
comparison, trademark law is relatively innocuous. Yeah,
it may seem odd that Mr. McDonald can’t call his restaurant
McDonalds, but no biggie. Thanks to the .com domain
turmoil, even trademark law is getting some notoriety
lately. (Mr. McDonald can’t use www.mcdonalds.com, either.)
A
close cousin to tarnishing someone’s trademark is "genericide."
It’s not proper to say you’re going to Xerox this article.
Instead, you should say you’re going to copy
it. Of course, you should be warned that actually doing
so apparently runs afoul of copyright law. "Use
a copy machine, go to jail"?
Maybe
trade-secret law has the best grip on reality, relying
as it does on a nefarious perpetrator. Recently, there
was a case involving a sales guy planning a job switch
from company A to company B. He told his current customers
that company A was in trouble and that they should place
their orders with company B.
Then,
he swiped copies of company A’s customer data and gave
it to company B. To top it off, he erased all the records
on company A’s computers as he headed out the door.
You don’t need to be a legal giant to deal with this
case.
Until
now, perhaps the most obnoxious byproduct of trade-secret
law was the zillion-page nondisclosure agreements that
we’ve all signed and perhaps even read. But, a number
of intriguing cases have surfaced involving the trade
secrets you carry around in your head. The way the wind
is blowing with noncompete clauses and the like, a lobotomy
may become a standard part of the exit interview.
Shakespeare
wrote, "The first thing we do, let’s kill all the
lawyers" (King Henry VI, Part II, Act 4,
Scene 2), but I like to think he would have spared Ms.
Radin, who had this final bit of good-hearted advice:
Stay away from a lawyer who claims the answer is clear.
