Piracy_ The Intellectual Property Wars from Gutenberg to Gates - Adrian Johns [236]
AT&T responded with the indignation of a mugger's victim. The Commission's proposal was tantamount to a policy of "confiscation" by the state, it declared. It imputed that the FCC had simply misunderstood the nature of patents in the first place. The commissioners apparently assumed that "all the possible means of communication are, and always have been, available resources in the possession of the public," like public lands. This allowed them to infer that patents in the field were attempts to "filch something from the public possessions." But an invention simply did not exist prior to its being invented, so no "public lands" were being fenced off by AT&T. On the contrary, by mandating revelation a patent guaranteed that the public gained. But while a patent endured, the company insisted, "there is no reason why others who have contributed nothing to the result should be permitted to pirate the invention." Yet the FCC was now proposing that kind of piracy become federal policy12
The question of research and the common good therefore came down to claims of rival piracies. The acquisitive piracy of the Bell System stood against the expropriative piracy of the FCC. This "patent question" lay at the heart of what was acknowledged to be a looming crisis in relations between science, industry, and society. And in 1938 Roosevelt poured gasoline on the fire. The president launched the Temporary National Economic Committee, a panel of advisors charged with investigating corporate monopoly, and called upon it to endorse compulsory licensing. At the same time, he appointedThurmanArnold, a determined antimonopolist, to run the Justice Department's Antitrust Division. With Justice and the TNEC both on the case, it looked like radical change was in the cards. The New Deal was about to extend into science.
By now the enemies of patenting had a new focus. The TNEC feared that patent monopolies might prejudice strategic resources ahead of a coming war. For example, Britain needed beryllium, an essential component in the alloys used in military aircraft; but the German company Siemens held patent rights that could prevent its American licensee from filling the order. What if Standard Oil, which managed the U.S. patents on synthetic rubber for I. G. Farben, found itself similarly hobbled in meeting the American military's demands? (After Pearl Harbor, Standard would be forced into cross-licensing to preclude such a possibility.) Yale professor Walton Hamilton revived the FCC's charges against the Bell "imperium" in this context. An alternative, the TNEC pointed out, existed in the most iconic of American industries, that of automobiles. Patents held little sway in Detroit, which had long maintained conventions of "free use."13
The TNEC extended these questions into the heart of scientific research. It posited that industry required moral compromises of the scientist. The head of Bell Labs, Frank Jewett, admitted that Michelson had told him when he left academia that he was "prostituting my training and my ideals." But Jewett and most others rejected any such moral distinction. Not for a long time, they remarked, had the researcher really been an isolated gentleman. In the laboratory, academic or corporate, "a collective discipline replaces the freedom of the individual." The "individual phase" in the history of science, Vannevar Bush concurred, was being supplanted by the "group phase. "Jewett defended the principle of patenting -and AT&T in particular-in these terms. The Bell System did not fear others using its "stuff," he affirmed: "we are a natural monopoly, we don't care, let them use it if they want to." What he did fear was the secrecy that would prevail if there were no patents to buy. Similarly, Bush credited patentees with upholding a "pioneering spirit," and with securing a high standard