Intellectual Property and
Privacy Basics
What Is Intellectual Property?
Tangible property: a cup of coffee, a chair to sit in…
Intellectual property: music to listen to, stories to
read while drinking the coffee…
Physical property involves individual items (my car).
Intellectual property involves classes of items (the
same poem can be printed in many books).
Differences Between Physical
and Intellectual Property
Intellectual property is non-rivalrous: we can both
read the same book, but we can’t both drink the
same cup of coffee.
Legal Systems to Protect
Intellectual Property
Protections for IP include:
• Copyright.
• Patent.
• Trade secret.
• Trademark.
Copyright
Copyright:
– Protects the expression of ideas fixed in a tangible
medium for a limited duration, currently the life of the
author plus 70 years.
– Does not protect ideas, processes, discoveries, facts.
Copyrighted material must be original.
Rights of Copyright Holders
Copyright holders can:
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Reproduce their work.
Adapt or derive works from their work.
Distribute copies of the work.
Display or perform the work.
Limitations on Copyright
Copyright limitations include:
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Fair use doctrine.
Limitation to expressions of ideas (merger doctrine).
Limited terms of copyright.
First sale rule.
Author Rights in Europe
The Berne Convention states:
Independently of the author’s economic rights, and even
after the transfer of the said rights, the author shall have
the right to claim authorship of the work and to object to
any distortion, mutilation or other modification of, or
other derogatory action in relation to, the said work,
which would be prejudicial to his honor or reputation.
Patent
Patents:
– Protect useful, novel, and non-obvious processes,
machines, means of manufacturing.
– Are of more limited duration than copyright (20 years).
– Grant a monopoly over implementation of the patented
idea.
Trade Secret
A trade secret is, er, a secret that can give you an
advantage in the marketplace. The secret Coke
formula, for example.
Trade secrets:
– Last as long as the secret is maintained.
– Can be any type of information.
– Cannot be readily discerned (reverse engineered) or
obvious to others in the industry.
Trademark
Trademarks:
– Protect product or brand names, phrases, logos, so that
customers aren’t misled or confused about where products
are coming from. (Is it real or a knockoff?)
– Are meant to ensure “good will”: association of a
mark/product with its actual manufacturer.
– Last as long as the good will does.
Typically, you want your trademark to be used as an
adjective, not as a generic noun or process.
– Good: I need some Kleenex facial tissue. Where is the Xerox
photocopier?
– Bad: Got a kleenex? Can you xerox this for me?
Why are we talking about IP?
The concept of property structures information in defiite ways.
Legal and ethical implications associated with ownership to
expressions of information may affect:
• If a work can be disseminated or preserved.
• How that work can be disseminated or preserved.
• How that work is described.
• Who can access it.
There may also be legal and ethical implications assocated with
information that cannot be owned: e.g., most personal information.
Thus the relationship with privacy.
Types of Privacy
Law professor Jerry Kang (and others) discuss three
types of privacy:
– Spatial. Controlling access to one’s person and private
space.
– Decisional. Making personal decisions without
interference.
– Informational. Limiting access to information about
oneself.
Privacy in the U.S. Legal System
Privacy laws include:
• Privacy torts (for civil cases).
• Court cases that set precedents for interpretations
of constitutional privacy.
• Hodgepodge of individual statutes (HIPAA,
COPPA, etc) for specific kinds of information.
Prosser’s Four Privacy Torts
• Private facts. Physically or otherwise disrupting the
solitude of another.
• False light. Publicly creating an offensive and false
impression of another.
• Intrusion. Distributing offensive private
information that is not in the legitimate public
interest.
• Misappropriation. Using another’s name or
likeness for personal gain without consent.
Dilution of Privacy Torts
The torts of private facts and intrusion often fail
because of the difficulty of distinguishing public and
private information.
Example: Florida Star vs. BJF, 1989. A rape
survivor sues a newspaper for publishing her name.
She wins, but the decision is reversed on appeal,
because the name was available in police reports.
Constitutional Privacy
The U.S. Constitution does not mention privacy.
Privacy is first accepted in constitutional law in the decision
for Griswold v. Connecticut, 1965.
The court’s decision held that although the Constitution does
not explicitly protect a general right to privacy, guarantees to
privacy may be found in the “penumbras,” or shadows, of
various provisions in the Bill of Rights.
“Privacy” in the Bill of Rights
• The First Amendment guarantees the right of association (in
particular anonymous association).
• The Third Amendment prohibits the quartering of soldiers “in any
house” in times of peace without consent of the owner.
• The Fourth Amendment protects against unreasonable searches
and seizures.
• The Fifth Amendment protects against self-incrimination.
• The Ninth Amendment claims that just because a particular right
isn’t mentioned, that doesn’t imply it should be denied.
• The Fourteenth Amendment guarantees that no one shall be
deprived of liberty without due process.
Weaknesses of
Constitutional Privacy
Of course, the government does violate our privacy in a
multitude of ways.
In terms of decisional privacy, there are laws against taking
certain drugs, against gambling, against euthanasia, and many
other activities that might be deemed private decisions.
In terms of spatial (and, in the Internet age, also
informational) privacy, search and seizure restrictions have
been relaxed according to the open view doctrine and the
Patriot Act.
Legality vs. Morality
This lecture has concentrated on the legal landscape
associated with intellectual property (and with personal
information not considered intellectual property, via privacy).
In contrast, the articles for this week—Himma, Stallman, and
Friedman, et al—concentrate on morality, or ethics (in other
words, on how people should address issues of intellectual
property and personal information, as opposed to what the
law says). Himma emphasizes that it’s important to
differentiate between larger ethical questions and the current
legal means of addressing those questions.
To get at this, we are going play some puzzles (and then make
some puzzles to play!)