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103 Colum. L. Rev. 534 (2003)
The Internet, Innovation, and Intellectual Property Policy

handle is hein.journals/clr103 and id is 578 raw text is: THE INTERNET, INNOVATION, AND INTELLECTUAL PROPERTY POLICY Philip J. Weiser* 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 plat- forms that support the viewing of content-be they instant messaging sys- tems, media players, or Web browsers-face a muddled set of legal doctrines that govern the scope of available intellectual property protection. This un- certainty reflects a fundamental debate about what conditions will best facili- tate innovation in the information industries-a debate most often played out at the conceptual extremes between the commons and proprietary con- trol approaches to the Internet and intellectual property policy. This Article proposes a competitive platforms model as a new concep- tual framework to govern intellectual property and Internet policy. This model suggests that where information platforms will continue to face com- petitive alternatives, intellectual property law and policy should encourage competition among them as a means of driving companies to develop supe- rior products and enabling them to appropriate rewards from their inven- tions. 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 frame- work for protecting platform standards and user interfaces. Moreover, the competitive platforms model calls upon industry standard-setting bodies and the fedcral 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. * Associate Professor, University of Colorado School of Law and Department of Interdisciplinary Telecommunications. Thanks to Kathy Applegate, Linda Bosniak, Curt Bradley, Christina Burnett, Julie Cohen, Stacey Dogan, Chris Eisgruber, Brett Frischmann, Ellen Goodman, Oren Gross, Dirk Hartog, Michael Katz, Mark Lemley, Doug Lichtman, Harry Litman, Tom Lookabaugh, Viva Moffet, Hiroshi Motomura, Tom Nachbar, Jon Nuechterlein, Dale Oesterle, Scott Peppet, Gil Seinfeld, Jim Speta, Heidi Wald, Steve Williams, and Tim Wu for helpful comments and encouragement. I also want to thank Jennifer Laurin for a superb editing job and Jane Thompson for stellar library assistance. I presented earlier versions of this Article at the Princeton University Law and Public Affairs Program, the University of Colorado Summer Workshop Series, and the 29th Annual Telecommunications Policy Research Conference. Finally, I acknowledge the generosity of the Law and Public Affairs Program Fellowship at Princeton University, which supported my work on this project. 534

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