"Non-Proprietary Technologies:
A Challenge to the Standard Economics of Intellectual Property?"

Professor Margaret Jane Radin
Stanford Law School

Erin Sawyer, J.D. Candidate (1998)
Stanford Law School

Abstract

Our paper explores several examples of evolving non-proprietary technologies
and the challenges they present to traditional ways of conceptualizing
intellectual property rights, protections, and incentive theories.
One conventional model argues that in order to encourage development of
new technologies, strong IP protections must exist in order to give proper
incentives and rewards to developers and investors. Strong intellectual
property protections underlie proprietary computing platforms currently
exemplified by the dominance of the Wintel empire. These proprietary
computing platforms operate through an economic narrative based on the
presence of network externalities (both direct and indirect) and an
accumulation of an installed base sufficient to tip the market in a
direction that may or may not be technologically superior over the long term.
Once the proprietary platform market is tipped, however, users desiring to
change platforms are faced with coordination problems, switching costs, and
the lack of robust alternative platforms. If the proprietary platform is not
technologically superior, the combination of network externalities, switching
costs, and strong intellectual property rights could present serious
impediments to efficient technological convergence.

After analyzing the proprietary computing models in terms of network
operations and path dependence, we assert that non-proprietary technologies
have the potential to overcome lock-in and encourage market competition at
the product level without sacrificing the positive direct and indirect
network externalities which stem from expansive networks. Our paper
discusses several examples of non-proprietary technologies along a spectrum
ranging from the -scale and less commercially oriented development of the
Linux operating system to the explosive growth of Sun's Java programming
language with its promising business and commerce applications. In our
examination of both Linux and Java, we consider how conventional incentive
stories of intellectual property protection give way to more flexible
development and licensing regimes, both commercial and non-commercial.
We examine the critical issue of how intellectual property protection should
evolve in order to ensure the continued economic viability of non-proprietary
technologies as well as to facilitate optimal levels of standardization.

Our paper concludes by posing the broad question of how narratives of
economic incentive and intellectual property protection can be rewritten
to take account of the growing presence of non-proprietary technologies in
cyberspace We also consider whether these technologies, apart from their
economic potential to create efficient levels of convergence and
standardization, also have the ability to preserve a space for important
legal notions of fair use and the baseline value of the public domain.