The Internet, Innovation, and Intellectual Property Policy

The Internet continues to transform the information industries and challenge intellectual property law to develop a competition policy strategy to regulate networked products. In particular, inventors of “information platforms” that support the viewing of content—be they instant messaging systems, media players, or Web browsers—face a muddled set of legal doctrines that govern the scope of available intellectual property protection. This uncertainty reflects a fundamental debate about what conditions will best facilitate innovation in the information industries—a debate most often played out at the conceptual extremes between the “commons” and “proprietary control” approaches to the Internet and intellectual property policy. This Article proposes a “competitive platforms model” as a new conceptual framework to govern intellectual property and Internet policy. This model suggests that where information platforms will continue to face competitive alternatives, intellectual property law and policy should encourage competition among them as a means of driving companies to develop superior products and enabling them to appropriate rewards from their inventions. Alternatively, where a particular information platform emerges as the dominant one—for example, in the case of Microsoft Windows in the market for PC operating systems—intellectual property protection against the reverse engineering of its platform standard or user interface should recede. As a strategy to implement the competitive platforms model, this Article proposes a reformulation of the fair use and misuse principles—as developed in both copyright and patent law—to provide a unified, clear, and coherent framework for protecting platform standards and user interfaces. Moreover, the competitive platforms model calls upon industry standard-setting bodies and the federal government to reassume the critical coordination and funding roles they served in the early days of the Internet in order to support the development of the parts of the Internet’s information infrastructure that are intrinsically open to all and thus are vulnerable to underinvestment.