Intellectual Property A Gift of Fire Intellectual Property Intellectual Property and Changing Technology Copyright Law Copying Music, Movies, Software, and Books Solutions (Good and Bad) Free-Speech Issues Free Software Issues for Software Developers

Intellectual Property and Changing Technology Intellectual Property Is: • Intangible creative work—not necessarily the physical form on which it is stored or delivered. • Given legal protection in the form of copyright, patent, trademark, and trade secret laws. Q: How is owning a music CD different from owning the copyrights for the music on the CD?

Intellectual Property and Changing Technology Copyrights are granted for a limited, but long, time. With some exceptions, copyright owners have the exclusive right to: Make copies of the work, Produce derivative works, Distribute copies, Perform the work in public, and Display the work in public. Q: Distinguish between an idea and the expression of an idea in a fixed and tangible form.

Intellectual Property and Changing Technology Problems from New Technologies That Affect Intellectual Property Owners High-quality copying. High-quantity distribution. Easier to use. Less expensive. Q: Many argue that since the technology exists to make copies, it must be all right to do so. Why is this flawed reasoning?

U.S. Copyright Law History 1790: First U.S. copyright law; covered printed material. Later, newer technologies (photography, sound recordings, etc.) were added. 1909: Definition of unauthorized copy formed. 1960s: Some software and databases receive protection. 1992: Making copies for personal gain became a felony. 1997: Illegal to make copies regardless of financial gain. 1998: Illegal to circumvent copy protection schemes. Q: How does one get permission to use copyrighted material?

Copyright Law Fair-Use Doctrine Permission to use the work is not required. Allows uses of copyrighted material that contribute to the creation of new work and do not significantly affect sales of the material, thus depriving copyright holders of their income. Allows some research and educational uses as well as news reporting and critiquing. Guidelines for determining Fair Use are found in law. Q: How does the Fair-Use Doctrine distinguish between photocopies made by students and those made by workers in a corporation?

Copyright Law Fair-Use Cases Sony v. Universal City Studios 1984: U.S. Supreme Court ruled that non-commercial copying (recording) of a movie for viewing at a later time was fair use. Court ruled that copying devices (in this case, Betamax VCR) should not be banned if they have significant legal uses. Sega Enterprises, Ltd. v. Accolade, Inc. 1992: Reverse engineering a complete program in order to produce new, creative work was ruled fair use. Q: Identify the capabilities of more recent recording devices that mirror the issues debated in the Sony and Sega cases.

Copying Music, Movies, Software, and Books Improved technology allows for easy, fast, cheap, and ubiquitous copying of music on the Web. Entrepreneurs create businesses to facilitate storing and sharing of music files. Many individuals set up free sites for music sharing, too. The Recording Industry Association of America (RIAA) continues to fight unauthorized copying of music. Q: What is the current status of music file-sharing on the Web?

Copying Music, Movies, Software, and Books Movies and TV Programs Improved digital technologies and greater bandwidth on the Net also allows for copying and transferring of movies and TV programs. Businesses such as RecordTV.com and Scour provided free services to facilitate copying of broadcast intellectual material. The Motion Picture Association of America (MPAA) and other entertainment companies continue to fight unauthorized copying of their intellectual property. Q: What is the current status of movie file-sharing on the Web?

Copying Music, Movies, Software, and Books Improved digital technologies contribute to unauthorized (commercial and non-commercial) copying of software. Individuals and whole businesses, here and overseas, continue to produce, transport, and sell (or give away) copies of software, manuals and supporting material. Software Information Industry Association (SIIA) as well as other software industry organizations and companies battle software piracy in the U.S. and abroad. Q: What is the current status of software copying?

Copying Music, Movies, Software, and Books Improved technology allows for simple, quick, and cheap copying of books. Counterfeiters of textbooks, novels, and other printed matter, profit by not paying publishers and/or authors for their intellectual property. Electronic books use encryption to reduce copying, but some e-book protection schemes have been cracked. Q: Has copying of e-books become a big problem?

Copying Music, Movies, Software, and Books The Napster Case Benefits of Napster (aside from being free): Share music with other users; obtain individual songs from a CD; sample songs on a CD; access more songs; access commercially unavailable songs; and enjoy other features that made Napster popular. Legal Issues: Was copying and distributing music through Napster within the fair-use guidelines? If not, was Napster responsible for user actions? The Court Decision: Napster was guilty of encouraging and assisting copyright infringement. Q: What were Napster’s defending arguments?

Solutions (Good and Bad) Technology, Markets and Management, and Regulations and Enforcement Technological Solutions: Expiration date encoded. Hardware dongle required. Copy-protection schemes. “Activation” features. Encryption schemes; digital-rights management (DRM). Q: From whose point of view are the above technological solutions good? Bad?

Solutions (Good and Bad) Technology, Markets and Management, and Regulations and Enforcement (cont’d) Markets and Management: Subscribe to services. Collect fees from users and large organizations. Meter usage of intellectual property on a network. Offer discounts to educational users. Educate the public about the value of intellectual property belonging to creators and publishers. Q: From whose point of view are the above market/management solutions good? Bad?

Solutions (Good and Bad) Technology, Markets and Management, and Regulations and Enforcement (cont’d) Regulations and Enforcement: The Digital Millennium Copyright Act (DMCA) and other laws. Identify abusers and shut them down in high-publicity raids. Monitor abuses. Enforce current laws and punish abusers. Q: Which of these methods are likely to be effective?

Solutions (Good and Bad) Restrictions and Bans on Technology In the past, lawsuits have delayed, restricted, or banned the release of new technologies, including: CD-recording devices. Digital Audio Tape (DAT) systems. DVD recorders. DVD players. MP3 players. Q: Currently, what new technological improvements are being held back?

Solutions (Good and Bad) Restrictions and Bans on Technology (cont’d) In an attempt to reduce or prevent unauthorized copying and distribution of intellectual property, some governments have levied taxes on: Audio tapes. CD recorders. Personal computers. Printers. Scanners. Q: Are taxes a reasonable solution to compensate owners of intellectual works?

Solutions (Good and Bad) Restrictions and Bans on Technology (cont’d) Digital rights management (DRM), combined with laws such as the DMCA, can result in heavy fines and imprisonment for violators. The legal and monetary consequences can be applied to both pirates of intellectual works as well as to scientists and researchers of technology. Q: Should we ban technology that has criminal uses?

Solutions (Good and Bad) The DMCA vs. Fair Use and Free Speech Controlling Usage: Some of our use of digital movies, books, and music is controlled by DRM and copy-protection schemes. Circumventing this control may violate the DMCA. Fair Use Prohibiting the use of circumvention tools may block exercise of Fair Use rights. Free Speech Prohibiting the sharing of information about circumvention of DRM or copy-protection schemes may violate freedom of speech.

Solutions (Good and Bad) The Future of Copyright Challenges to the principles of copyright: Methods to circumvent copy-protection schemes. Peer-to-peer (P2P) file transfer. The view among some people that if copying is easy, or if cheap online access is absent, then it is okay to copy. Challenges to Fair Use: Technological (DRM) and legal (the DMCA) restrictions. Conflicting outcomes (e.g. reverse engineering) in the courts. Non-traditional uses (e.g. online teaching materials) or blurring of the guidelines associated with Fair Use. Q: Will copyright survive these challenges? Will Fair Use?

Free-Speech Issues Intellectual Property Protection or Violation of Free Speech? Copyright: Unauthorized posting of copyrighted documents for the purpose of criticizing an organization. Trademark: Domain names that infringe upon trademark claims. Trade Secret: Posting internal documents to expose unfair labor or business practices.

Free Software Free Software (or Open Source) Means Free From Copyright Restrictions The notion of free software was created by Richard Stallman. Examples: GNU project. Emacs. “Free” compilers and utilities. Linux. Many others. Q: How can/should free software developers be paid?

Issues For Software Developers Should You Copyright or Patent Software? Copyrights: Protect the expression of an idea in a fixed and tangible form. Are cheap, easy to obtain, and last a long time. Allow fair-use of the intellectual property. Patents: Protect new, non-obvious, and useful processes. Are expensive, difficult to obtain, and last for short periods of time. Allow licensing to other developers.