Intellectual Property (2021) Flashcards

1
Q

Intellectual Property:

Cases Discussed

A
  • “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
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2
Q

Intellectual Property:

Definition

A
  • 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
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3
Q

Definition:

Patent

A

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.

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4
Q

Definition:

Trademark

A

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
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5
Q

Definition:

Copyright

A

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including literary, dramatic, musical, artistic, and certain other intellectual works both published and unpublished.

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6
Q

Types of

Intellectual Property

Protections

A
  • Patent
  • Trademark
  • Copyright

(Trade Secrets are not a protection)

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7
Q

Types of

Property

A
  • Real Property
    • Land, physical locations
  • Personal Property
    • Other physical possessions
  • Intellectual Property
    • implies a unique product of human intellect
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8
Q

Roots of the concept of

Property

A
  • Social Convention
  • Origins in Morality
  • Natural Law
    • John Locke
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9
Q

Rights given

by Copyright

A

Rights to:

  • Reproduce the copyrighted work
  • Distribute copies to the public
  • Display to the public
  • Perform the work
  • Produce derived works
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10
Q

Things that Trademarks

apply to

A
  • Particular things used to identify goods:
    • Words
    • Sounds
    • Smells
    • Pictures
    • Color

Service Marks: Used to identify services

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11
Q

Natural Right:

John Locke’s View

A

“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.”

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12
Q

Natural Property Rights

Applied to Intellectual Property:

Important Points

A
  • 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
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13
Q

What major US Law protects

Intellectual Property?

A

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.

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14
Q

Reverse Engineering:

Two Types

A

Black Box

External examination only

White Box

Some knowledge of the internal structure

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15
Q

Motivations for

Reverse Engineering

A
  • 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
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16
Q

Trade Secrets:

Two ways Companies actively protect Trade Secrets

A
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17
Q

Reverse Engineering

Overview

A

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
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18
Q

Reverse Engineering:

Major Organization/project

regarding RE in software

A

Coder’s Rights Project

(Part of Electronic Frontier Foundation)

19
Q

Copyright provides the rights to…

A
  • 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
20
Q

What is

Copyright Creep?

A

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.

21
Q

Copyrights:

Fair Use:

Basic Idea and Four Factors

A

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
22
Q

Important Law

Regarding Fair Use

A

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.

23
Q

Copyright:

Important Legislation

A
  • 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”
24
Q

Copyright:

Effects of the

Sonny Bono Copyright Term Extension Act

A

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
25
Q

Copyright:

Bern Convention

A

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
26
Q

Copyright:

DMCA

A

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
27
Q

Copyright:

Family Entertainment and Copyright Act

A

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
28
Q

What is

DRM?

A

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
29
Q

Copyright:

OCILLA

“Safe Harbor”

A

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
30
Q

DRM

Pros vs Cons

A
  • 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
31
Q

Peer to Peer Networks

A
  • 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
32
Q

Peer to Peer Networks:

Napster 1999

Overview

A
  • 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
33
Q

Peer to Peer Networks:

Bittorrent

Overview

A
  • 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
34
Q

Software Copyrights:

Basics

A

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
35
Q

Software Patents

Basics

A
  • 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?
36
Q

Software Patents:

Licensing Patents

Patent Trolls

A

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.

37
Q

Software Patents:

Clean Room Design

A
  • 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
38
Q

Important “Free Software” Concepts

A
  • Copyleft
  • Open Source
39
Q

“Free” Software

Motivations

A
  • Stallman was a huge proponent of free software
  • Copyrights do no not promote progress
    • May even hinder progress
  • Wrong to allow ownership of IP
40
Q

Copyleft

Summary

A
  • 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
41
Q

Open Source

Summary

A

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
42
Q

Open Source:

Examples (5)

A
  • Apache
  • Perl
  • Python
  • Linux Kernel
  • MySQL
43
Q

Open Source:

Pros

A
  • Everyone can improve computing
  • Rapid evolution - new versions, less bugs(hopefully)
  • Copyright less of an issue
  • Community owns software
  • Objective is service, not manufacturing
44
Q

Open Source:

Cons

A
  • Poor quality if no critical mass of contributors
  • Incompatibility issues
    • Many developers
  • Weak interface
  • Does not necessarily promote innovation