Intellectual Property Chapter 4 Taylor Holt Isuru De Silva Sonia Panameno

What is intellectual property...? Definition:- Any Product of human intellect that has a commercial value Ex;- Books, Songs, movies, paintings, inventions, chemical formulas, computer programs.

Locke's Theory of Natural Property rights... Arguments: People have a right to property in their own person; nobody has a right to person of anybody else. People have a right to their own labor for their own benefit People have a right to things they removed from nature through their own labor

Locke's Theory of Natural Property rights (Cont...) Conditions: Someone should not claim more property than he/she can use Questions Is there a natural right to intellectual property..?

Protecting Intellectual Property Trade Secrets Trade Marks Patents Copyrights

Trade Secrets Definition Confidential Piece of intellectual property that provides company with competitive advantage Ex:- Formulas, Processes, Property design, Strategic plans Advantage Never Expires Disadvantage Perfectly Legal to “reverse engineer” & produce similar product. Competition can hire other companies employees with confidential info.

Trade Marks Definition: Word, symbol, picture, sound, color, smell by business to identify goods. Advantages: Establish Brand name familiar the customers Gain confidence in the product Disadvantages: Trademarks can become genetic Ex:- yo-yo, aspirin, escalator, thermos, XEROX

Patents Definition Public document providing detailed description of invention Prevents others from making, using, or selling invention for lifetime of patents After expiration, anyone has a right to make use of its ideas Ex:-Polaroid vs. Kodak

Copyrights Definition Copyright is how the U.S government provides authors with certain rights to original works that they have written. The author of the copyright has rights to his material in 5 ways 1. The right to reproduce the copyright work 2. The right to distribute copies of the work to the republic 3. The right to display copies of the work to the public 4. The right to perform the work in the public 5. The right to produce new derived from the copyrighted work ex:- Basic Books vs Kinko's Graphics Corporation

Fair Use The copyright owner has a limited right to reproduce a work. In special circumstances, called fair use, it is legal to reproduce a copyrighted work without permission of the copyright holder

Examples of Fair Use Citing short excerpts from copyrighted works for the purpose of Teaching Scholarship Research Criticism Commentary News Reporting

The United States Copyright Act and fair use The judicial system decided what was fair use Section 107 of the Copyright Act lists four factors that helps with deciding if its fair use

Four Factors of Fair Use What is the purpose and character of the use? An educational use is more likely to be permissible than commercial use What is the nature of the work being copied? Non-fiction preferred over fiction Published preferred over unpublished

Factors Of Fair Use (Cont’) How much of the Copyrighted work is being used? Brief excerpts preferred over entire chapters How will this use affect the market for the copyrighted work? Out-of-print preferred over readily available work Spontaneously chosen selection preferred over an assigned reading in the course syllabus

Fair use Example #1 A professor puts a few journal articles on reserve in the library and makes them assigned reading for the class. Some students in the class complain that they cannot get access to the articles because other students always seem to have them checked out. The professor scans them and posts them on his Web site. The professor gives the students in the class password they need to access the articles.

Fair Use Example #2 An art professor takes slide photographs of a number of paintings reproduced in a book about Renaissance artists. She uses the slides in her class lectures.

Fair use Applied Sony v. Universal City Studios Time shifting RIAA v. Diamond Multimedia Systems Inc. Space shifting

Protections for Software

Software copyrights First software copyrights were applied for in 1964 The Copyright Act of 1976 explicitly recognizes that software can be copyrighted

When a piece of software gets copyright protection what exactly is copyrighted? Protects the expression of an idea, not the idea itself Usually protects the object (executable) program, not the source program Source could be considered a trade secret Protects the screen displays produced by the program as it executes

Doing any of the following is a violation of copyright law Copying a program onto a CD 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 Until early 1980s U.S. Patent and Trademark Office refused to grant patents for computer software Argued that a computer program is a mathematical algorithm not a process or a machine

Needed to sort out applications merely describing mathematical algorithms from those describing inventions If the software simply manipulates values it is an expression of a mathematical algorithm and should not be patented If the software manipulates data representing measurements made in the real world it is more likely to be a patentable invention Because so much software was written before software patents were first granted patent examiners issued many “bad patents” Can lead to increased legal costs for software companies Existence of bad patents makes software patents in general more suspect

Safe Software Development Unconscious copying is a concern in software because programmers frequently move from one firm to another One possible solution: A “clean room” development strategy

“Clean Room” Software Development Strategy Helps ensure a company’s program does not duplicate any code in another companies product Two independent teams work on the project: First team responsible for determining how competing product works Produces a technical specification for the software product Says nothing about how to implement the functionality Second team is isolated from first team Never seen any code or documentation from competing product Relies solely on the technical specification to develop, code, and debug the software meeting the specification Can demonstrate employees have not copied code, even unconsciously

Open Source Software Into the 1960s software distributions included source code In 1970s the number of computer applications expanded To protect investments in software most companies made their programs proprietary Companies developing proprietary software tightly control distribution of their intellectual property Treat source code as a trade secret, only distributing object code Do not sell object code, sell a license allowing customer to run the program

Consequences of Proprietary Software Governments give ownership rights because of the perceived beneficial consequences Ability to profit from licensing of software makes people work harder and be more creative Granting intellectual property rights to creators of computer software has harmful consequences Copyright system was designed in an era when it was difficult to create copies To enforce copyrights increasingly harsh measures are being taken which infringe on liberties Purpose of system is to promote progress, not make people wealthy Forces user to choose between respecting ownership rights and helping their friends

Open Source Movement The Philosophical position that source code to software ought to be freely distributed and that people should be encouraged to examine and improve each other’s code Promotes a cooperative model of software development Open Source An alternative way of distributing software

Open Source licenses have key characteristics There are no restrictions preventing others from selling or giving away the software The source code to the program must be included in the distribution or easily available by other means There are no restrictions preventing people from modifying the source code, and derived works can be distributed according to the same license terms as the original program There are no restrictions regarding how people can use the software These rights apply to everyone receiving redistributions of the software without the need for additional licensing agreements The license cannot put restrictions on other software that is part of the same distribution

Benefits of open source software Gives everyone using a program the opportunity to improve it Newer versions of open-source programs appear much more frequently Eliminates the tension between obeying copyright law and helping others The property of the entire user community, not just a single vendor Shifts the focus from manufacturing to service, which can possibly create better support for their software

Critiques of open-source software If an open-source project does not attract developers, the overall quality can be poor Possibility that different groups will independently make enhancements to a software product that are incompatible with each other Tend to have relatively weak user interfaces, making them harder to use than commercial software products Poor mechanism for stimulating innovation Has proven able to produce alternatives to proprietary programs, but not to innovate completely new products

Legitimacy of Intellectual Property Protection for Software Should we as a society give copyright and/or patent protection to software? Rights-Based arguments Consequentialist arguments

Rights-Based Analysis Yes, programmers should get control of who uses their programs Variation of Locke’s natural rights argument

Utilitarian Analysis Chain Links of consequentiality Strength of the links How does it affect society