Intellectual Property
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Intellectual Property (IP) = “product of the mind”
The Congress shall have Power To … promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries …
- U.S. Constitution, Article I, Section 8
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Ways to protect intellectual property:
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Copyright
Patent
Trademark
Trade secret
What does this have to do with software engineering?
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Exclusive Rights of Copyright
Holder
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To make copies of the work
To produce derivative works
To distribute copies
To perform the work in public
To display the work in public
Notice that copyright protects expression, not ideas
Not all of these rights apply to every category of work
There are many special exceptions
Categories of Works
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Musical works
Sound recordings
Literary works (including computer programs)
Dramatic works
Movies/audiovisual
Pantomime/choreography
Pictoral/graphic/sculpture
Architecture
Note: Many protections may apply to a single work
(consider a song, for example)
Fair Use Factors
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Purpose of use: educational vs. commercial
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Nature of work: factual vs. creative
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Amount of work used: small vs. large
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Effect of use on value of work: little vs. lot
Sony v. Universal (1984)
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Universal sued Sony, the developer of the
first VCR, because users taped movies
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1: Noncommercial (but not educational) use
2: Movies are creative works
3: Users taped entire movies
4: Universal couldn’t show financial harm
Supreme Court ruled 5-4 that videotaping is legal
Supreme Court ruled that you can’t sue a
company for a device that has many
legitimate uses but can be used illegally.
 Digital Millennium Copyright Act has eroded
this ruling significantly.
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Sega v. Accolade (1992)
Accolade reverse engineered Sega games in
order to create new games to run on Sega
platform
 Sega sued Accolade and lost
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– Accolade did not sell copies; it sold new games
– Fits guiding principle of fair use – new creative work
Same result in Atari v. Nintendo
 Same result in Connectix vs Sony
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– Reverse engineered Sony Playstation to allow playing
Playstation games on a computer with Connectix software
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Napster (2001)
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Napster had 50 million users/100 million MP3 files in
2000
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Napster was sued by 18 record companies
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Napster claimed fair use, but:
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1: Copies weren’t for educational purposes
2: Copies were of creative material
3: Entire songs were copied
4: Sales of CDs went flat in 2000
Napster claimed Sony v. Universal as precedent, but:
– Napster maintained a central list of available music
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MGM v. Grokster (2005)
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Grokster and similar services provided peer-to-peer
copying without a central server
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Like VCRs, such a service has many legal and
productive uses
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Lower courts ruled in favor of Grokster
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But Supreme Court ruled unanimously that
companies could be sued for encouraging copyright
violation as a business model.
Computer Software
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Piracy varies from low of 21% in U.S. to highs of
95% in Armenia (estimated for 2006)
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Rampant copying outside of the US
– Many different copyright laws
– Difficulty of prosecution
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Copy protection schemes have (in general) totally
failed
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Digital Media Have Changed the
Playing Field
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Before the 90s, large-scale copyright violation
required large capital investment
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But things have changed because
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Digital copies are perfect
Digital copies are extremely inexpensive
Digital copies can be compressed
Digital copies can be distributed via the Internet
The cost is no longer proportional to the harm
Digital Millennium Copyright Act
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DMCA enacted in 1998
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Created four “safe harbors” for ISPs:
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Transitory communications
System caching
Information stored at direction of users
Information location tools
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To take advantage of safe harbors, ISPs must
participate in notice and takedown
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Also contains an anticircumvention provision
DMCA: Notice and Takedown
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ISP must designate an agent
Copyright holder can ask agent to take down
infringing material
ISP must remove material expeditiously and notify
the user who put the material up
Upon counter notification from user, ISP must
inform the copyright holder and restore the material
between 10 and 14 days after counter notice.
The two parties are then aware of each other and
can deal directly
Provision to sanction abuse of notification
DMCA: Anticircumvention
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Prohibits making, distributing, or using tools (devices,
software, or services) to circumvent technological copyright
protection schemes used by copyright holders”
DeCSS
– 15 year old Norway programmer developed to defeat DVD protection
– 2600.com operator was sued to remove DeCSS from its web site
– Judge ordered removal under DCMA
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Researchers at Princeton responded to challenge to break
Secure Digital Music Initiative
– Professor was to present paper, but SDMI threatened to sue
– Researchers sued back the recording industry and government but case
was tossed because paper never presented
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Company in Russia sold program to break Adobe e-book code
– Developer arrived in US to present paper and was arrested
– Criminal case pursued, defendants acquitted for variety of reasons
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Ethical Arguments About Copying
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I cannot afford to buy the product
The company is a large, wealthy corporation
– Doesn’t justify stealing; also what about programmers, writers,
musicians, actors?
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I wouldn’t buy it at the retail price anyway. The
company is not really losing a sale.
– You are still taking something for nothing
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Making a copy for a friend is an act of generosity
– It is not your “right” to be generous, it is the copyright’s owner
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The violation is insignificant compared to the
billions of dollars lost to piracy by dishonest
resellers making big profits
– Still doesn’t make it ethically right
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Everyone does it. You would be foolish not to.
– Doesn’t determine what is right
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So, How Do You Feel About This?
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Some people view downloading music and movies
for free as an ok thing to do
As a software developer, how would you feel about
someone stealing your software?
– Isn’t this the same as what a musician must feel?
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Some view that all software should be free
– So, how does one get paid as a software professional?
– A lot of “free” software is developed by people in their spare time,
while during the day they are paid to develop software
– If everything is free, how do you develop software that takes a
very long time to figure out, research, and build?
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What business models should we have for software
and music and ???
– Services, support, training for software?
– Promotional, merchandising for movies and music?
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Patent Protection
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Can patent an invention that is:
– Not obvious to someone skilled in the art
– Has a useful purpose and works (can’t patent “gears” or “time
machine”)
– Not a discovery about the natural world, nor a plant or animal, …
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Software patents in U.S. first started appearing in
1970s
– But inventor of first spreadsheet (VisiCalc) was advised he
couldn’t patent his idea
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To obtain a patent, the invention must be disclosed
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Gives inventor a 20-year monopoly on the invention
Process of Obtaining a Patent
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File patent application with USPTO
Examiner takes the case, looks for “prior art”
New examiner spends ~80 hours, experienced one
~20 hours
Process takes ~18 months
Process is not adversarial, but others can
contribute opinions
Hard to invalidate a patent after it is granted
Problems with Patent Process
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Not enough examiners
Examiners aren’t paid enough, so they aren’t
necessarily technically competent
Insufficient prior art in the form of patents in case of
software patents
Rise of patent “trolls”: companies that are in
business only to acquire and enforce patents
Various reforms have been proposed
Examples of Patents
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US 6,935,954: Sanity System for Video Game
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US 5,960,411: Method and System for Placing a
Purchase Order Via a Communications Network
Recent Patent Cases
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NTP vs. RIM (Blackberry)
– NTP (a patent troll) held patent related to e-mail that was infringed by
the Blackberry
– RIM didn’t take NTP seriously
– Settled for $612 million in 2006
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Verizon vs. Vonage (VoIP)
– Vonage’s VoIP service infringed on three patents held by Verizon
– Verizon awarded $58 million in damages in 2007
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MercExchange vs. eBay
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MercExchange holds patent related to “Buy it Now”
MercExchange sought injunction prevent using of “Buy It Now”
Supreme Court ruled that injunction is not required, hurting trolls
eBay bought patents from MercExchange in 2008
In Closing
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More information:
– http://digital-law-online.info/index.html
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Lee Hollaar is an expert in this whole copyright,
intellectual property business
– He teaches a class on it and is well worth attending
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