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Think Different or Else

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. Ken Rhodes says:

    Xerox PARC, the days when Jobs and Woz and Bill Gates and Paul Allen were all kids … I wasn’t there–I was in the mainframe game–but I’m old enough to remember it.

    My recollection is that in the early days, those guys didn’t steal it. Gates and Allen bought it (“it” being DOS and related software), and PARC gave it away (“it” being concepts, but without the underlying software).

    In my simple-minded software-engineering mentality, there’s still some confusion between “look and feel” being a copyright, and the operating software being a patent, but the basic principle is still the same (or similar enough for me to accept)–if you make it, and you want to commercialize it, then you protect it. If somebody else made it first, and they want to let everyone use it, then it’s public, but if they want to reserve it for themselves, then there are certain procedural steps they follow. And if they fail to follow those procedural steps, then it’s public.

    The one thing that’s totally alien to me is that the other guys made it first, and then made it public, and now you can come along and follow the administrative procedures, and thus make it your own.

    That’s FUBAR.

  2. Adam Mossoff says:

    Ken Rhodes is correct. There’s a difference between copying something and stealing intellectual property (IP): while stealing IP always entails copying, copying does not always entail stealing IP.

    Notice that Jobs says that it’s wrong to “steal” IP — he doesn’t say that it’s wrong to *copy*.

    The XeroxPARC technologies, such as the mouse, WYSIWYG, etc., were not secured under patents (and these were functional technologies that were not copyrightable). In fact, the Xerox researchers openly showed them to Steve Jobs knowing full well that this meant that he would probably copy them for his own uses.

    So, the attempt here to hoist Jobs on his own petard really doesn’t work.

    Interestingly, Bill Gates wrote an open letter to the hacker community in the late 1970s that essentially argued the same thing as what Steve Jobs says in this quote.

  3. To quote Jobs: “It’s wrong to steal. It hurts other people. And it hurts your own character.”

    To quote Jobs again: “We’ve always been shameless about stealing great ideas.”

    In other words, Jobs and Apple are in the business of knowingly stealing, hurting people, and denigrating their character. Jobs said so himself!