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Ch5 Intellectual PropertyIntellectual Property

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Intellectual Property

The Congress shall have the Power To The Congress shall have the Power To … promote the Progress of Science and … promote the Progress of Science and useful Arts, by securing for limited useful Arts, by securing for limited Times to Authors and Inventors the Times to Authors and Inventors the exclusive Right to their respective exclusive Right to their respective Writings and Discoveries …Writings and Discoveries …

U.S. Constitution, Article I, Section 8U.S. Constitution, Article I, Section 8

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The Conflict

In a free market, two opposing desires In a free market, two opposing desires stay in conflict:stay in conflict: Desire for competition in an open Desire for competition in an open

market and desire to prevent market and desire to prevent monopolies.monopolies.

Recognition that someone is entitled Recognition that someone is entitled to benefit from/own his own creation to benefit from/own his own creation and, therefore, to monopolize it.and, therefore, to monopolize it.

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Protection for Software

Programming is clearly a creative act, much Programming is clearly a creative act, much as a novel or song, but often it has a tool-like as a novel or song, but often it has a tool-like quality, similar to technical inventions.quality, similar to technical inventions.

Three different ways “under the law” that Three different ways “under the law” that software can be protected:software can be protected: Trade Secret.Trade Secret. Copyright.Copyright. Patent.Patent.

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Trade Secrets Protection provided by state law.Protection provided by state law. Must be info used in a business, not generally Must be info used in a business, not generally

known in the business, used in secret, and known in the business, used in secret, and which provides a competitive advantage.which provides a competitive advantage.

Holder of trade secret must keep list of all Holder of trade secret must keep list of all people to whom the secret has been people to whom the secret has been divulged.divulged.

Courts generally expect signed contracts with Courts generally expect signed contracts with employers and contractors to prove that the employers and contractors to prove that the holder has treated it as secret and made holder has treated it as secret and made reasonable efforts to keep it secret.reasonable efforts to keep it secret.

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Trade Secrets (cont.)

Note: Only employees and contractors are Note: Only employees and contractors are prohibited from revealing the secret.prohibited from revealing the secret.

Ineffective protection for software which is Ineffective protection for software which is sold in the open market.sold in the open market. Easy to duplicate the idea of a program.Easy to duplicate the idea of a program. Reverse engineering can be used to reveal Reverse engineering can be used to reveal

the underlying principles of design.the underlying principles of design.

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Patents Highest level of protection for a process or product.Highest level of protection for a process or product. Patent holder has exclusive right to exclude others Patent holder has exclusive right to exclude others

from making, using, or selling the invention.from making, using, or selling the invention.

Not a practical choice for software.Not a practical choice for software. Waiting time in software cases is usually 2 to 5 Waiting time in software cases is usually 2 to 5

years.years. Cost several thousand dollars.Cost several thousand dollars. Seldom awarded for software. (Usually awarded to Seldom awarded for software. (Usually awarded to

software integral to a patented piece of software integral to a patented piece of equipment.)equipment.)

Patents call for full disclosure.Patents call for full disclosure.

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Copyright Protects only the form of the expression, not Protects only the form of the expression, not

the idea. We can’t copyright “Country Music” the idea. We can’t copyright “Country Music” only individual country music songs.only individual country music songs.

Software can contain innovative ideas on Software can contain innovative ideas on processing; thus, copyright sometimes is not processing; thus, copyright sometimes is not strong enough.strong enough.

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Copyright

(1790) The first U.S. copyright law protected books, maps, and charts for 14 years.

(1909) Copyright Act defined an unauthorized copy as being in a form that could be seen and read visually.

Software was officially added to the list of items Software was officially added to the list of items covered in a 1980 amendment to the Copyright Act of covered in a 1980 amendment to the Copyright Act of 1976. Protection set at life of author + 50 years and 75 1976. Protection set at life of author + 50 years and 75 years for corporate authorship. (Protection for Mickey years for corporate authorship. (Protection for Mickey Mouse)Mouse)

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Copyright

(1982) High volume copying of records and movies becomes a felony.

(1992) Copying of software for “commercial advantage or private gain” becomes a felony.

(1997) No Electronic Theft Act drops the (1997) No Electronic Theft Act drops the “commercial advantage or private gain” clause because until then if you just gave it away no law was broken.

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Copyright

(1998) Copyright Term Extension Act (CTEA) (Sonny

Bono Copyright Act, or Mickey Mouse Protection Act) extended copyright terms in the by 20 years. Before the Act (under the Copyright Act 1976), copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship; the Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier.

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Copyright

(1998) Digital Millennium Copyright Act makes it illegal to to produce, distribute or use a device to circumvent copyright protection. Also gave protection to web sites that removed copyrighted materials at the request of the copyright holders.

(2005) Copying of a movie in a movie theater becomes illegal.

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Don’t worry about Mickey!

Disney has been successful twice in getting the copyright laws changed in time to prevent Mickey Mouse (Steamboat Willie(1926)) from falling into the “public domain” where anyone could use it (a seven minute film clip) and things that followed without charge.

The name “Mickey Mouse” also enjoys Trademark protection that gives Disney exclusive use of the name.

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Happy BirthdayThis song was copyrighted in 1935 and that’s

why you don’t often hear it performed on TV or radio. Royalties from when it is used produces about $2,000,000 annually. Copyright protection will end sometime after 2030.

Since the protection gives the owners of the copyright the exclusive right ‘to perform the copyrighted work publicly’ you can legally sing it at home but not in a crowded restaurant.

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To Obtain a Copyright Software developer can simply add the Software developer can simply add the

copyright symbol, the year, and the name of copyright symbol, the year, and the name of the person or corporation that authored the the person or corporation that authored the work. work.

Registration requires completing a form and a Registration requires completing a form and a

$10 fee.$10 fee. Include hardcopy listing of first and last 25 pages Include hardcopy listing of first and last 25 pages

of program (or entire program if it’s less than 51 of program (or entire program if it’s less than 51 pages in length).pages in length).

Registration is NOT required for copyright.Registration is NOT required for copyright.

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Copyright and Software (prior to 1985)

Copyright does not protect the holder against Copyright does not protect the holder against others using the ideas as expressed in the others using the ideas as expressed in the work; protects only the form of the work; protects only the form of the expression.expression.

Common Thoughts:Common Thoughts: Copyright protects only the source program Copyright protects only the source program

and the object program.and the object program. Copyright is meaningless as anyone could Copyright is meaningless as anyone could

modify a program enough to circumvent modify a program enough to circumvent any copyright.any copyright.

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Reverse Engineering Ideally, you take something apart so that you Ideally, you take something apart so that you

can understand how it functions so that you can understand how it functions so that you can use that knowledge to produce a better can use that knowledge to produce a better product. Viewed as product. Viewed as notnot an ethics or legal issue. an ethics or legal issue.

Using reverse engineering to make a copy of a Using reverse engineering to make a copy of a competitors product with little or no competitors product with little or no improvement is viewed as both unethical and improvement is viewed as both unethical and illegal.illegal.

Provides a legal way you learn a competitors Provides a legal way you learn a competitors Trade Secrets.Trade Secrets.

Bower “Ethics and Computing”Bower “Ethics and Computing”

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“Similar” Software Products

Look and feel; user interface; use of drop-down Look and feel; user interface; use of drop-down menus, windows, icons, specific commands, etc.menus, windows, icons, specific commands, etc.

Atari is first to raise the question of look and feel in Atari is first to raise the question of look and feel in 1982. They won.1982. They won.

Lotus v. BorlandLotus v. Borland. . Apple sued Microsoft and Hewlett-Packard.Apple sued Microsoft and Hewlett-Packard. Menus are a “method of operation”, much like Menus are a “method of operation”, much like

controls on automobiles.controls on automobiles. Trend is away from copyright protection for “look and Trend is away from copyright protection for “look and

feel”; value of compatibility; common features and feel”; value of compatibility; common features and operations are outside the scope of copyright.operations are outside the scope of copyright.

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Look and Feel – 2 Sides

Protecting a user interface (look and feel) Protecting a user interface (look and feel) protects a major creative activity; thus, protects a major creative activity; thus, copyright and patent apply.copyright and patent apply.

Standard user interfaces enhance Standard user interfaces enhance programmer productivity. No need to “re-programmer productivity. No need to “re-invent the wheel” nor to spend time looking invent the wheel” nor to spend time looking for a different way of doing things. Standard for a different way of doing things. Standard user interfaces lower development costs and user interfaces lower development costs and usually add to ease of use.usually add to ease of use.

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Look and Feel Avoidance

Apple has a Trash Can while Microsoft has a Apple has a Trash Can while Microsoft has a Garbage Bin.Garbage Bin.

How many words do we know that have been How many words do we know that have been used as the command to quit a program? used as the command to quit a program? Bye, Stop, Quit, Logoff, Exit, Q,…Bye, Stop, Quit, Logoff, Exit, Q,…

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Archival Copy

Under copyright law, the buyer has a right to install Under copyright law, the buyer has a right to install the software on a computer and to make one the software on a computer and to make one “archival” copy.“archival” copy.

Copy for desktop AND laptop?Copy for desktop AND laptop? Varies from one vendor to another.Varies from one vendor to another. Using the software installed on a desktop at the Using the software installed on a desktop at the

same time as using the software installed on a same time as using the software installed on a laptop probably means buying TWO copies.laptop probably means buying TWO copies.

Copy for a friend or for sale is clearly in violation.Copy for a friend or for sale is clearly in violation.

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4 Factors / Determining Fair Use

Purpose and nature of the use. Purpose and nature of the use. Copying for use in a commercial Copying for use in a commercial

venture such as selling copies is not venture such as selling copies is not supported, but use in a non-profit supported, but use in a non-profit educational setting usually is.educational setting usually is.

Nature of the work.Nature of the work. Creative work tends to get stronger Creative work tends to get stronger

protection.protection.

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4 Factors / Determining Fair Use (cont.)

Amount and significance of the portion Amount and significance of the portion used.used.

Effect of the use on the potential market Effect of the use on the potential market or value of the copyright work. (Uses or value of the copyright work. (Uses that reduce sales of the copyrighted that reduce sales of the copyrighted work are less likely to be considered fair work are less likely to be considered fair use.)use.)

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Examples of Software Piracy

Businesses produce and sell Businesses produce and sell unauthorized copies of software; unauthorized copies of software; commonly referred to as counterfeiting.commonly referred to as counterfeiting.

Businesses, schools, and organizations Businesses, schools, and organizations buying a copy but then installing it on buying a copy but then installing it on numerous machines/PCs/workstations.numerous machines/PCs/workstations.

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Industry Organizations SIIA – Software and Information Industry Association.SIIA – Software and Information Industry Association.

Trade association for software companies.Trade association for software companies. Feb. 19, 2004 - The Software & Information Industry Feb. 19, 2004 - The Software & Information Industry

Association (SIIA) today applauded the Federal Bureau of Association (SIIA) today applauded the Federal Bureau of Investigation's announcement of its new anti-piracy warning Investigation's announcement of its new anti-piracy warning initiative to combat theft of copyrighted material. initiative to combat theft of copyrighted material.

BSA – Business Software Alliance.BSA – Business Software Alliance. Voice of the world's commercial software industry before Voice of the world's commercial software industry before

governments and in the international marketplace. governments and in the international marketplace. Educates consumers on software management and Educates consumers on software management and

copyright protection, cyber security, trade, e-commerce and copyright protection, cyber security, trade, e-commerce and other Internet-related issues. other Internet-related issues.

Howell