Hacking The Law

The Fundamentals, Part III: the OTSOG Principle

Closely related to the notion of balancing the importance of pioneering invention against incremental improvement, is the importance of balancing the IP monopolies against the "Sciences," in the Constitutional sense of technique of writing and inventing -- the ability of facilitating those who follow not only to improve upon the works before, but to evolve new works by genuinely evolving entirely new works.

That is, not only making a "better old thing," but also "almost a new thing." Both paths are important, and lead to essential progress. This is not unlike the modes of progress identified by Arthur Koestler in "the Act of Creation," distinguishing between incremental improvements of prior works ("pink plane") and paradigm shifts nevertheless derived from prior works ("blue plane").

In each case, however, fundamental progress derives from what has happened beforehand, a principal later described by Merton as "OTSOG," an acronym for "On The Shoulders of Giants."

OSTOG has been attributed variously in modern era to Newton's famous line:

If I have seen further it is by standing on ye shoulders of Giants.

and others, it would appear that the notion has been also attributed to Bernard of Chartres, in the early twelfth century, who taught that:

we are like dwarfs tanding upon the shoulders of giants, and so able to see more and farther than the ancients.

Now Bernard, of course, did not devise that grand concept on his own. Before him was Priscian, a sixth-century gramarrian, who wrote:

The younger the scholars, the more sharp-sighted.

And of course, there is always Ecclesiastes 1:9-10

[T]here is no new thing under the sun. Men may say of something, 'Ah, this is new!'-- but it existed long ago before our time.

Of course, Ecclesiastes and Priscian only touched at the notion, but Bernard, standing on the shoulders of giants, put them together to arrive at the dwarf-and-giant metapor. Newton's restatement, standing on the shoulders of giants, placed in more modern tongue the metaphor in the context of scientific progress.

And the notion has long been recognized in American Jurisprudence:

In truth, in literature, in science and in art, there are and can be few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.

Emerson v. Davis, 8 F. Cas. 615, 619 (C.C. D. Mass 1845) (No. 4,436) (Story, J).

And of course, my survey of these issues here is nothing new under the sun. If I have seen farther into the subject, it is because I have borrowed from the District Court opinion in Lotus Development Corp. v. Paperback Software, Int'l, 740 F. Supp. 37, 77 & n.3 (D. Mass. 1990). Not that the Judges themselves created that jurisprudence. but rather stood on the shoulders of those briefing the argument and the research of all their respective associates and clerks. Still, in turn, these things depend upon prior scholarship, such as that of R. Merton, who coined, I think, the acronym OTSOG, in his book "On the Shoulders of Giants: A Shandean Postscript.

Get it?

We are lost without being able to borrow from those who have come before us. Both for our truly pioneering invention and works, OTSOG restatements of existing works and incremental improvements on each. IP policy must carefully balance not only the interest of the author and inventor in their own works, but also the interest of society, not only in appropriating the entire invention after the public domain dedication, but in improving and OSOG.

Posted by Werdna at May 1, 2004 04:44 PM