Intellectual Property (2021) Flashcards
Intellectual Property:
Cases Discussed
- “Sick PCs” Quarantine
- Man refuses Encryption Code for hard drive seized by police
- Justin Ellsworth/Yahoo
- Family Email access after death
- Kinkos vs Basic Books
- Davy Jones Locker
- Love v. Kwitny, 1989
- Another copied 1/2 manuscript
- Kelly vs Arriba-Soft
- Thumbnails of image in search
- Field vs Google, 2006
- Cached websites
- 2 Live Crew
- Used “Pretty Woman”
- Leibovitz vs Paramount
- Leslie Nielson
- Music Downloads
Intellectual Property:
Definition
- Intangible property that is the result of creativity
- Legal rights that result from intellectual activity in the industrial, scientific, literary and artistic fields
- Any product of the human intellect that the law protects from unauthorized use by others
Can include:
- Patents
- Copyrights
- Trademarks
- Trade Secrets
Definition:
Patent
A Patent for an invention
is the grant of a property right
to the inventor,
issued by the Patent and Trademark Office.
It is good for 20 years.
Definition:
Trademark
Trademark
A word, name, symbol or device which is used in trade with goods to indicate the source of goods and distinguish them from the goods of others
- Can be a word, picture, sound, color, smell, etc used to identify goods.
- Typically a Service Mark that is used to identify services.
- If a brand name becomes a common nound, the trademark is lost
Definition:
Copyright
Copyright
A form of protection provided to the authors of “original works authorship”
including literary, dramatic, musical, artistic, and certain other intellectual works both published and unpublished.
Types of
Intellectual Property
Protections
- Patent
- Trademark
- Copyright
(Trade Secrets are not a protection)
Types of
Property
- Real Property
- Land, physical locations
- Personal Property
- Other physical possessions
- Intellectual Property
- implies a unique product of human intellect
Roots of the concept of
Property
- Social Convention
- Origins in Morality
- Natural Law
- John Locke
Rights given
by Copyright
Rights to:
- Reproduce the copyrighted work
- Distribute copies to the public
- Display to the public
- Perform the work
- Produce derived works
Things that Trademarks
apply to
- Particular things used to identify goods:
- Words
- Sounds
- Smells
- Pictures
- Color
Service Marks: Used to identify services
Natural Right:
John Locke’s View
“When one mixes one’s labor with nature,
one gains ownership of that part of nature with which the labor is mixed,
subject to the limitation that there should be enough,
and as good, left in common for others.”
Natural Property Rights
Applied to Intellectual Property:
Important Points
- IP is not a tangible property
- One of a kind
- Copying (as a process) is different from physically stealing
- There may be no natural right to intellectual property
- But society may grant intellectual property rights instead
What major US Law protects
Intellectual Property?
Constitution of the United States,
Article I, Section 8:
“To promote the progress of science and useful arts, by securing for limited times to authors and investors the exclusive right to their respective writings and discoveries.”
This also gives time limits to intellectual property rights.
Reverse Engineering:
Two Types
Black Box
External examination only
White Box
Some knowledge of the internal structure
Motivations for
Reverse Engineering
- Product Analysis
- Security Auditing
- Military or Commercial Espionage
- Creation of unlicensed, unapproved duplicate
- Interopability
- Academic or Learning purposes
- Lost documentation
- Curiosity
- Removal of copy protection
- Circumvention of access restrictions
Trade Secrets:
Two ways Companies actively protect Trade Secrets
Reverse Engineering
Overview
Reverse Engineering is
starting with a product and working backwards to find the formula/recipe/design to recreate the product.
- It is a way of working around Trade Secrets
- Long held as a legitimate form of discovery in both legislation and court opinions
- Supreme Court has upheld the practice
- Considered important method of the dissemination of ideas
- Encourages innovation in the marketplace
Reverse Engineering:
Major Organization/project
regarding RE in software
Coder’s Rights Project
(Part of Electronic Frontier Foundation)
Copyright provides the rights to…
- Reproduce a copyrighted work
- Distribute copies of the work to the public
- Display copies of the work to the public
- Perform the work to the public
- Produce works derived from the copyrighted works
What is
Copyright Creep?
Over the years,
the duration and range of a copyright has slowly increased.
This can create limited monopolies on copyrights that otherwise would have passed into the public domain.
Copyrights:
Fair Use:
Basic Idea and Four Factors
Basic Idea:
It is legally allowed to reproduce copyrighted material in limited, transformative ways, such as for criticism, aknowledgement, parody, etc.
Four Factors:
-
Purpose and Character of Use
- Educational, criticism, etc
-
Nature of copied work
- Fiction or non-fiction, published, etc
-
Quantity of work being used
- Quote vs whole chapter, etc
-
Impact on market value of work
- Out of print material, spontaneously chosen selection
- Carries the most weight
Important Law
Regarding Fair Use
US Constitution,
Article 17, 107
is the statutory guideline for balancing the constitutionally granted monopoly in creative works with the public good.
Concerns the 1st Amendment, education and development of technology.
Copyright:
Important Legislation
- Copyright Act of 1976
- Sonny Bono Copyright Term Extension Act
- Digital Millennium Copyright Act (DMCA)
- Family Entertainment and Copyright Act
- Bern Convention for the Protection of Literary and Artistic Works
- Online Copyright Infringement Liability Limitation Act (OCILLA)
- “Safe Harbor”
Copyright:
Effects of the
Sonny Bono Copyright Term Extension Act
Extended Copyright terms by 20 years to:
- Lifetime of author plus 70 years
- Works of corporate authorship
- 120 years after creation or
- 95 years after publication
Copyright:
Bern Convention
Bern Convention for the Protection of Literary and Artistic Works
- International agreement about copyright
- Copyrights for creative works are automatically in force at creation, without being asserted or declared
- An author need not “register” or “apply for” a copyright in countries adhering to the convention
- As soon as a work is “fixed”, meaning written or recorded on physical medium, its author is automatically entitled to all copyrights in the work and to any derivative works
- Unless the author explicitly disclaims them
- Or until the copyright expires
Copyright:
DMCA
Digital Millennium Copyright Act
- Implements two 1996 WIPO treaties
- WIPO - World Intellectual Property Organization
- Criminalizes production and dissemination of technology, devices, or services that are used to circumvent measures that control access to copyrighted works (DRM)
- Criminalizes the act of circumventing an access control, even when there is no infingement of copyright
- Heightens penalties for copyright infringement on the internet
Copyright:
Family Entertainment and Copyright Act
Two Subparts:
Artist’s Rights and Theft Prevention Act of 2005
- Increases penalties for copyright infringement
- Targeted at preventing piracy of movies and software
Family Home Movie Act of 2005
- Permits development of technology to “sanitize” potentially offensive DVD content
What is
DRM?
Digital Rights Management
Collective term for technologies used by owners of intellectual property to limit use of digital media or devices.
Aimed at tracking and controlling.
- Example: SDMI - Secure Digital Music Initiative
- Adds encryption to media that requires use of “special players” to operate correctly
- Digital watermarks
Copyright:
OCILLA
“Safe Harbor”
Title II: Online Copyright Infringement Liability Limitation Act
- Creates “safe harbor” for online service providers (including ISPs) against copyright liability
- IF they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to infringing material (or remove it)
- They must do this when they receive a notification claiming infringement from a copyright holder or the copyright holder’s agent
DRM
Pros vs Cons
- DRM Pros:
- Prevents unauthorized duplication of someone’s work
- DRM Cons:
- Copyright holders restricting use of material in ways not included in statutory, common law, or Constitutional grant of exclusive commercial use
- Undermines fair use
- Not technically possible/practical
- Copyright holders restricting use of material in ways not included in statutory, common law, or Constitutional grant of exclusive commercial use
Peer to Peer Networks
- A system of networking/file sharing
- Allows computers running the same network program to connect with each other and access stored files
- Pure peer-to-peer application has no central server
- Decentralized and distributed network architecture
- Individual nodes(called peers) act as both suppliers and consumers
- Tasks, like searching for files are shared amongst multiple interconnected peers
- Each make a portion of their resources directly available to other peers
- Processing power, storage, files, bandwidth, etc
- Examples:
- Napster (1999)
- Limewire
- Bittorrent
Peer to Peer Networks:
Napster 1999
Overview
- Peer to Peer music exchange
- Sued by RIAA in 1999
- In 2001 a federal court ruled that Napster must block copyrighted material
- Napster was able to filter 99%, but a district court ruled they must be able to block 100%
- This killed Napster’s free service
Peer to Peer Networks:
Bittorrent
Overview
- Protocol supporting peer-to-peer file sharing
- Simultaneous download is faster
- Files are divided into pieces
- Allows downloading a single file from groups of sources
- Speeds increase with popularity of file
Software Copyrights:
Basics
Software Copyrights
- Used by proprietary software companies to prevent the unauthorized copying of software
- Used by open source software
- Historically used software license agreements
- EULAs
- Covers
- Expression of an idea, not the idea itself
- Object program, not the source program
- Screen displays also covered (OS, games, etc)
- The copyright is violated if:
- Copy a program to give or sell to someone else
- Preloading a program onto the hard disk of a computer being sold
- Distributing a program over the internet
Software Patents
Basics
- Didn’t exist before 1968
- Cannot patent prior art in the field
- Software is difficult to patent
- Once you remove hardware from the equation, all that is left is an abstract algorithm
- Algorithm may be too vague to patent
- Debate:
- Where is the boundary between patentable and non-patentable software?
- Can ideas or math equations be patented?
- Do software patents discourage rather than encourage innovation?
- Where is the boundary between patentable and non-patentable software?
Software Patents:
Licensing Patents
Patent Trolls
Companies can cross license their patents.
But there are also “Patent Trolls”
who collect large collections of patents, with no intention of using the patent themselves, so they can license or sue other companies.
Software Patents:
Clean Room Design
- Unconscious use of copyrighted or patented material is still not legal
- Clean Room Design is used as a defense
- Involves reverse engineering and recreating without infringing any of the copyrights and trade secrets associated with original design
- Requires writing code based only on documentation or specifications, while insulated from the original work
- Typically cannot be used to circumvent patent restrictions
Important “Free Software” Concepts
- Copyleft
- Open Source
“Free” Software
Motivations
- Stallman was a huge proponent of free software
- Copyrights do no not promote progress
- May even hinder progress
- Wrong to allow ownership of IP
Copyleft
Summary
- As opposed to “copyright”
- Requires user to provide source code for the work and to distribute their modifications under the same license
- Effectively protecting derivative works from
- losing the original permissions
- being used for proprietary software
Open Source
Summary
Open Source in General
- Development method that relies on distributed peer review and transparency
- Promises better quality higher reliability, more flexibility, lower cost, end to predatory vendor lock-in
Key parts
- Free Redistribution
- License shall not restrict any party from selling or giving away source
- Source Code
- Program must include source code and allow distribution of source
- Derived Works
- License must allow modifications and derived works
Open Source:
Examples (5)
- Apache
- Perl
- Python
- Linux Kernel
- MySQL
Open Source:
Pros
- Everyone can improve computing
- Rapid evolution - new versions, less bugs(hopefully)
- Copyright less of an issue
- Community owns software
- Objective is service, not manufacturing
Open Source:
Cons
- Poor quality if no critical mass of contributors
- Incompatibility issues
- Many developers
- Weak interface
- Does not necessarily promote innovation
