restricted access Ownership and the History of American Computing
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Ownership and the History of American Computing

Questions about ownership permeate the history of computing. Some of theirmost commonmanifestations involve the ownership of individual machines, from mainframe leases to personal computer purchases. Some of their most unusual manifestations involve national debates on the scope of intellectual property (IP) rights. Connecting these questions are stories about the uses and limits of IP that highlight the importance of three forms of protection. First, patents grant a temporary monopoly over an invention in exchange for public disclosure. Second, copyrights protect creative works such as books and sound recordings. Third, trade secrets allow corporations a certain degree of secrecy in the way they treat their knowledge and undeveloped technologies.1

The study of ownership presents a rich historiographic opportunity to analyze the interplay between IP and technology development. Although historians of computing have acknowledged the importance of this area by writing about topics such as software patents, the broader history of ownership and computing has been generally overlooked.2 This Think Piece examines how historians of computing can benefit from works produced by legal scholars and draw methodological guidance from scholarship on the history of ownership.3 I focus on the period between the 1940s and 1980s, during which the legal frameworks for the ownership of machines and programs that we know today began to develop.4

The Study of Ownership

The historiography of ownership is an interdisciplinary body of work with a clear methodological agenda: to emphasize the role that innovators, users, judges, legislators, and critics played in the creation and use of frameworks to understand ownership and to explore the symbiotic, yet problematic relationships between the history of technology and American law.

This historiography comprises two important families of work. First, legal history is one of the dominant disciplines in the field. A good example is the work of Pamela Samuelson, which describes what she calls the "strange odyssey" of software as a source of problems in IP law.5 Like many other excellent works in her field, Samuelson's essay favors the development of common law and statutory reform over the broader social and technological contexts within which these changes occurred.

Second, a much smaller group of works examines the historical interplay between technological development and IP law. Writing about inventions that range from punch cards to hormones, a handful of scholars have stressed how specific technologies and their historical contexts are as important as the legal mechanisms that govern their ownership.6 In their hands, inventions, works, and knowledge are as illuminating as the patents, copyrights, and trade secrets that protect them.

The historical study of ownership and computing can link these two families of work. IP is central to the problems and solutions that corporations, employees, and inventors faced in order to become and remain competitive in the industry. Business leaders, researchers, and their lawyers have exploited and tested IP rights; strived to protect information in light of employee mobility; and struggled to secure rights over machines, programs, and programmed machines. At the same time, legislators, judges, and bureaucrats have worked to craft and interpret American law in light of the challenges posed by computing technologies.

Regulating a Revolution

The historical roots of the relationships between computing and intellectual property are more than 100 years old. At the beginning of the 20th century, corporations such as Burroughs and Hollerith relied on the American patent system to ensure their growth in light of the federal government's increasingly strict antitrust enforcement. During the following decades, punch cards, memory drums, and other machine components were the subject of several patents.7 Still, the most litigious and enlightening decades of this history coincide with the development of modern computing. For instance, Jay Forrester applied for a patent on his magnetic-core memory in 1951, was awarded the patent in 1956, and soon entered a legal conflict meant to determine the rightful inventor of the technology.

Beginning in the early 1960s, a series of patent applications forced the US Patent and Trademark Office to consider whether inventions that dealt with numerical data processing methods were eligible for patent protection. At the same time, in 1964 the Copyright Office granted...