Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute, and?Chris Sprigman, a professor at the University of Virginia Law School, are?experts in?counterfeiting and intellectual property. They have been?guest-blogging for us about copyright issues. Last time, they wrote about the roles of “tweakers” and “pioneers” in the innovation world; today, they expand on the topic.
Geeks and Tweaks: What Computer Programming Contests Can Teach Us About Innovation
By Kal Raustiala and Chris Sprigman
We talked in our last post about two different kinds of innovators: Pioneers and Tweakers. Pioneers are the Thomas Edisons of the world – the people who fit our romantic image of the lonely genius – whereas Tweakers are the ones who transform Big Ideas into brilliant products by reworking and refining them.
Intellectual property law decidedly favors Pioneers over Tweakers. We think this is a questionable strategy. At the very least, we ought to think about what the right balance is between the two broad forms of innovation, and how we can design the right incentives to promote that balance.
An interesting window into this question is a longtime fixture of geek culture – the computer programming contest.? MathWorks, a Natick, Massachusetts firm, has sponsored a series of online programming contests to promote their MATLAB programming language. These typically require contestants to write a program that solves a single difficult math problem in the least amount of time.
One example would be the classic traveling salesman problem, which asks the contestants to find the shortest possible round trip a salesman can make through a given list of cities, visiting each city only once. Contestants in this version of the contest must write computer code to calculate the shortest trip, and then submit that code to the contest website. Contestants can submit as many entries as they like over a period of several days.? Each is immediately scored, and the rankings made continually visible to all.
At the end of the contest, the winner receives … a MathWorks t-shirt and public acknowledgment of his or her victory.? That’s it.? And for this, quite a few highly-skilled people will spend a lot of time – sometimes, more than a hundred hours – writing code.
But here’s an even more surprising twist: after a short initial period of “darkness,” where the submitted code is hidden, the contest is played out in “daylight” – i.e., all of the contestants get to see each others’ code.? And they not only get to see – they are allowed, indeed encouraged, to take. These rules lead to a innovation environment similar in some ways to what we described in our last post about? football.? Some contestants are Pioneers – they work out a fundamental insight that helps address the problem, and submit code embodying it.? Others are Tweakers: they take code from Pioneers, improve it and resubmit it.
As more and more Tweakers wring the flaws out of a Pioneer’s code, the solutions to the problem get better and better.? And more subtly, as the Tweakers push any particular Pioneer’s solution toward its best implementation, the limitations of the Pioneer’s original insight become apparent.? In this way, the Tweakers help to prepare the ground for the next Pioneer – someone who comes in with radically different code that avoids the bottleneck that limited the performance of the previous best solution.
OK, you say, so the Tweakers create some value.? But doesn’t any set of rules that lets the Tweakers loose crush the incentive to be a Pioneer?? Why would anyone want to work out a pioneering approach to a math contest problem if a Tweaker can simply take it, fiddle with it a bit and leap ahead in the contest?
Ned Gulley, the MathWorks guru in charge of the contests, has suggested an answer:
We find that tweaking is the thing our contestants most often complain about, and at the same time it is the feature that keeps them coming back for more. Our discussion boards swirl with questions like this:
- Who deserves the most credit for this code?
- Who is a big contributor and who is “just a tweaker”?
- What is the difference between a significant change and a tweak?
These kinds of questions bedevil real-world software projects. There seems to be a cultural predisposition to find and glorify the (often mythical) breakthroughs of a lone genius. Since this model doesn’t always match reality, these questions don’t have satisfying answers. Happily, the contest framework acts as a solvent that minimizes this kind of I-did-more-than-you-did bickering and maximizes fruitful collaboration among many parties.
We find several noteworthy points in Gulley’s comments.? At the most general level, there is nothing inherently unjust about tweaking.? The MathWorks games show that although participants may sometimes complain about tweaking, they by and large accept it when they know in advance that it’s part of the rules.
Football is not that different.? Rich Rodriguez of Michigan runs summer camps where coaches can come to learn his implementation of the spread-option.? And a recent NY Times Magazine article describes how the New York Jets head coach Rex Ryan‘s training camps have become a Mecca for coaches seeking inspiration:
This is all why, throughout this off-season, springing up like gladiolus along the sidelines of Florham Park[, New Jersey – the Jets’ practice facility], were dozens of coaches in polo shirts and twill slacks, with return airline tickets to Indiana or Hawaii on their hotel bureaus. One week, Jon Gruden, the broadcaster and former Raiders coach, came up from Florida to take the Ryan cure. Then it was Nick Saban of the University of Alabama, college football’s defending national champion, reviewing blitzes. “We’re all copycats,” Saban says. “I haven’t invented anything in this business. I’ve always watched what Rex does.”
In football, coaches are free to copy.? As a consequence, we see hardly any moral handwringing about copying because it’s part of the background culture and people expect it to happen.? In this way, we see that sometimes the rules don’t follow morality, but rather that morality follows the rules – i.e., what’s normal is moral.
The same is true of? the MathWorks contests.? Not all contestants like Tweakers, but they accept them.? As participants gain experience with the contests, their views of tweaking appear to shift.? They begin to see tweaking not simply as copying, but as innovation.
So how can legal rules encourage a healthy balance between pioneering and tweaking? We wrote previously about how patent law only weakly promotes tweaking. Copyright’s treatment of Tweakers, however, is far worse. Copyright owners not only have the exclusive right to copy, distribute and perform their works.? They also have the exclusive right to make what the copyright law calls “derivative works” – i.e., tweaks.
So copyright has a clear policy: No Tweakers Allowed.? If you write a novel, I can’t easily tweak it by transporting the characters into a different time or place.? Indeed, in 2001, Alice Randall famously tried just that with The Wind Done Gone, a tweaking of Margaret Mitchell‘s classic Gone With the Wind, but now written from a slave’s point of view. Mitchell’s estate sued Randall; a lower court issued an injunction against publication, later lifted by an appellate court. The case was only dropped after a large donation was made to a historically African-American college by Randall’s publisher, which now had a best-seller on its hands and could easily afford to do so.
Of course, nothing stops a Tweaker from getting permission in advance from the Pioneer.? Unfortunately, however, copyright law has made that increasingly difficult.? The copyright law in general provides very little information that Tweakers can use to find copyright owners.? There is no database of copyrights that a Tweaker can search, in order to strike a bargain with the right Pioneer.
The law didn’t always make it so difficult to negotiate, however.? From the first copyright law in 1790 until 1978, authors were required to register with the US Copyright Office, or, later, provide notice of copyright on all published copies of their works.? And rightsholders were required to re-register after a relatively short initial term of protection.? The result was a public record – not perfect, but very helpful – of who owned what.? And this made it easier for Tweakers to seek permission.
Those requirements are gone now, and along with them the copyright law jettisoned its best encouragement to Tweakers.? That should change.? We should at the very least consider re-imposing rules designed to help Tweakers find copyright owners.? But more fundamentally, we should consider changing copyright to make it more like patent.? If you improve my novel – say, by reworking it into an appealing screenplay – then you should be able to publish what you’ve done, so long as your changes are substantial.? But I should also get paid for what I’ve contributed.? In short, we should have a system where the Tweaker’s work also benefits the Pioneer.