Re: Fwd: Nanotechnology and the Law

Hagbard Celine (
Fri, 29 Aug 1997 10:52:49 -0400

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Date: Thu, 28 Aug 1997 20:13:56 -0400
From: Hagbard Celine <>
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Anders Sandberg wrote:

> As I see it, the main legal problem will be that matter has become
> as malleable as software, with the acompanying problems of intellectual
> property.

I don't know about that. As far as existing law goes, the four basic
divisions of "intellectual property" are copyright, trademark, patent,
and trade secret -- all federal laws.

Copyright applies only to "works of authorship." It's what most people
think of when they consider intellectual property, and I assume now it
is what you are thinking of since you mentioned software. Copyright
protection arises at the instant an original work of authorship is fixed
in a tangible medium of expression. By this construction, it doesn't
seem to apply here. Unless you use nanotech to record your latest
screenplay in a readable form (somehow) in combinations of atoms, you
have not really authored anything (authoring a new form of matter?).

Software receives protection under copyright not because of the function
it performs but because of the property interest in the code which has
been authored by one or more people (what if the abstract idea of the
GUI was protected by copyright?) Again, it's the code that is protected.

So, since trademark law is for business names and logos (xenon atoms
spelling IBM?) and trade secret law is for information kept secret by
its owner that is not easily duplicable, the only real issue I see (off
the tippity-top of my head) is that of the ability to patent either the
process or the product.

My initial reaction is that this would be a quagmire. I have no idea
about patenting the process of molecular manufacturing. IMO, even if it
were allowable under current law, such a patent would probably be void
as against public policy, much like the Atomic Energy Act of 1954
excluded the patenting of inventions
useful solely in utilization of special nuclear material or atomic
energy for (obviously) atomic weapons.

On the other hand, patents are granted everyday for new chemical
compounds. This kind of manufactured product (whether done by engineered
proteins or nanoscale assemblers) seems clearly patentable. A thought
just occurred to me, what about diamondoid? My inital guess would be
that it would be an interesting court battle. Clearly, diamondoid is not
a product of human genius, rather, it is the result of physical law. If
it turned out that there was only one way to make it, and that process
was also patentable, then no one else would be able to make it
(legally). But this seems unlikely for the reason I sketched above.

> We still have not solved that problem even today, and it
> will likely get worse. How do you get paid for information and ideas,
> when they can be copied endlessly? How can you enforce copyrights
> on software or physical objects.

Software piracy is an everyday occurrence, of course, and the
enforcement problem is definitely a major issue. How does Merrell-Dow
stay in business when their drugs are being made in basements?

> In the long-term future one could imagine a shareware economy, where
> creators get paid by others on a voluntary basis; since physical
> scarcity has become irrelevant it is no disaster to be uncreative,
> you can simply live on the products other design for fun. In this
> scenario the software and designs are free, and there is no need
> for copyrights. Unfortunately this is very far from our current state,
> and might be an unlikely state to end up in.

I see a new thread on the horizon :-)

(Have to run now, more later)