A GIFT OF FIRE SARA BAASE CHAPTER 4: INTELLECTUAL PROPERTY

A GIFT OF FIRE

THIRD EDITION

SARA BAASE

CHAPTER 4: INTELLECTUAL

PROPERTY

Original Slides prepared by Cyndi Chie and Sarah Frye

Slides prepared by Cyndi Chie and Sarah Frye (and Liam

Keliher)

Adapted by Enas Naffar for use in Computing Ethics course –Philadelphia university

WHAT WE WILL COVER

 Intellectual Property and Changing

Technology

 Copyright Law and Significant Cases

 Copying and Sharing

 Search Engines and Online Libraries

 Free-Speech Issues

 Free Software

 Issues for Software Developers



INTELLECTUAL PROPERTY

Have you ever posted a homemade video on the web that is set to a popular song?

Have you ever recorded a televised movie to watch later?

Have you downloaded music or a movie from the web without paying for it?




AND CHANGING

TECHNOLOGY

What is Intellectual Property?

• The intangible creative work, not its particular physical form

• Value of intelligence and artistic work comes from creativity, ideas, research, skills, labor, nonmaterial efforts and attributes the creator provides

• Protected by copyrights, patent laws or trademarks.




AND CHANGING

TECHNOLOGY

What is Intellectual Property?

Example:

Designing and developing a computer program can take months or years of work and cost thousands or millions of dollars.

- Protection of intellectual property has both individual and social benefits. How ?




AND CHANGING TECHNOLOGY

(CONT.)

What is “copy right”? ©

Copyright holders have exclusive rights:

• To make copies

• To produce derivative works, such as translations into other languages or movies based on books

• To distribute copies

• To perform the work in public (music, plays, etc.)

• To display the work in public (art gallery, Web site)





(CONT.)

What is “copy right”? ©

• Copyrights last for a limited time.

• Example: The lifetime of the author plus 70 years.

After that, the work in in the public domain.

• Time period for copyrights control has been changed many times .





(CONT.)

Copyrights vs. Patent ?



PRINCIPLES, LAWS, AND CASES

Challenges of New Technology

 Digital technology and the Internet make copyright infringement easier and cheaper.

 New compression technologies make copying large files (e.g. graphics, video and audio files) feasible.

 Search engines make finding material easier.

 Peer-to-peer technology makes transferring and sharing files easier.

Corresponding page number:

183

PRINCIPLES, LAWS, AND CASES

Challenges of New Technology (cont.)

 Broadband connections make transferring files easier and enable streaming video.

 Miniaturization of cameras and other equipment enable audience members to record and transmit events.

 Scanners allow us to change the media of a copyrighted work, converting printed text, photos, and artwork to electronic form.

 New tools allow us to modify graphics, video and audio files to make derivative works.


183

INTELLECTUAL PROPERTY AND

CHANGING TECHNOLOGY

(CONT.)

Result:

In the past, (mostly) only companies worried about protecting copyright, and only companies had access to the technology needed to infringe copyright

Now, computer technology gives everyone the ability to make perfect copies of works on a large scale

• copyright is everyone’s concern



INTELLECTUAL PROPERTY AND

CHANGING TECHNOLOGY

(CONT.)

• The first category of intellectual property to face threats from digital media was Computer Software itself.

• Copying software used to be common practice.

• It was once considered a standard and acceptable practice( if it were considered at all).

• The software industry estimates the value of pirated software in billions of dollars.



COPYRIGHT LAW AND

SIGNIFICANT CASES

A bit of history:

• 1790 first copyright law passed ( covered books, map, charts, etc.).

• 1909 Copyright Act of 1909 defined an unauthorized copy as a form that could be seen and read visually

• 1976 and 1980 copyright law revised to include software and databases that exhibit "authorship"

(original expression of ideas).

• 1982 high-volume copying became a felony

• 1992 making multiple copies for commercial advantage and private gain became a felony




SIGNIFICANT CASES (CONT.)

A bit of History (cont.):

1997 No Electronic Theft Act made it a felony to willfully infringe copyright by reproducing or distributing one or more copies of copyrighted work with a total value of more than $1,000 within a sixmonth period

1998 Digital Millennium Copyright Act (DMCA):

• prohibits making, distributing or using tools to avoid technological copyright protection systems

• includes protection from some copyright claims for

Web sites where users post material.



FAIR USE IN THE

U.S.

Fair Use Doctrine:

Four factors considered

1. Purpose and nature of use – commercial vs. nonprofit purposes

2. Nature of the copyrighted work (creative or factual?)

3. Amount of significance or portion used

4. Effect of use on potential market or value of the copyright work (will it reduce sales of work?)

No single factor alone determines

Not all factors given equal weight, varies by circumstance



FAIR USE IN THE

U.S.

Fair Use Doctrine helps us figure out under what circumstances we can legally copy music, videos, software, etc.



FAIR DEALING IN

CANADA

Fair Dealing in Canada:

More restrictive than Fair Use in the U.S.

Six considerations:

1. the purpose of the dealing

2. the character of the dealing

3. the amount of the dealing

4. the nature of the work

5. available alternatives to the dealing

6. the effect of the dealing on the work





Significant Cases:

Sony v. Universal City Studios (1984)

• Supreme Court decided that the makers of a device with legitimate uses should not be penalized because some people may use it to infringe on copyright

• Supreme Court decided copying movies for later viewing was fair use

• Arguments against fair use

• People copied the entire work

• Movies are creative, not factual





Significant Cases (cont.):

Sony v. Universal City Studios (1984) (cont.)

• Arguments for fair use

• The copy was for private, noncommercial use and generally was not kept after viewing

• The movie studios could not demonstrate that they suffered any harm

• The studios had received a substantial fee for broadcasting movies on TV, and the fee depends on having a large audience who view for free






Reverse engineering: game machines

Sega Enterprises Ltd. v. Accolade Inc. (1992)

- Accolade made videogames to run on Sega machines.

- They copied Sega program and decompiled it (reverse engineering).

-Sega sued, Accolade won.

Court saw that Accolade’s act fits with the purpose of fair use. How ?






Reverse engineering: game machines

- Atari Games v. Nintendo (1992)

- Sony Computer Entertainment, Inc. v. Connectix

Corporation (2000)

Courts ruled that reverse engineering does not violate copyright if the intention is to make new creative works (video games), not copy the original work (the game systems)






Sharing music: the Napster case

-Napster is a service allowing users to copy songs in

MP3 format from the Hard disks of other users.

-It was popular and had millions of users.

-Napster users copied and distributed songs they had without authorization.

- 18 record companies sued Napster for copyright infringement.

Who won ?!






Sharing music: the Napster case

 Was the sharing of music via Napster fair use?

 Was Napster responsible for the actions of its users?

Napster's arguments for fair use

• The Sony decision allowed for entertainment use to be considered fair use

• Did not hurt industry sales because users sampled the music on Napster and bought the CD if they liked it






Sharing music: the Napster case (cont.)

RIAA's (Recording Industry Association of

America) arguments against fair use

• "Personal" meant very limited use, not trading with thousands of strangers

• Songs and music are creative works and users were copying whole songs

• Claimed Napster severely hurt sales

Court ruled sharing music via copied MP3 files violated copyright







Was Napster responsible for the actions of its users?

Napster's arguments

• It was the same as a search engine, which is protected under the DMCA

• They did not store any of the MP3 files

• Their technology had substantial legitimate uses







RIAA's arguments

• Companies are required to make an effort to prevent copyright violations and Napster did not take sufficient steps

• Napster was not a device or new technology and the RIAA was not seeking to ban the technology

Court ruled Napster liable because they had the right and ability to supervise the system, including copyright infringing activities






File sharing: MGM v. Grokster

Grokster, Gnutella, Morpheus, Kazaa, and others provided peer-to-peer (P2P) file sharing services

• The companies did not provide a central service or lists of songs

• P2P file transfer programs have legitimate uses

Lower Courts ruled that P2P does have legitimate uses

Supreme Court ruled that intellectual property owners could sue the companies for encouraging copyright infringement






Significant Cases

“Look and feel”

• Refers to features such as pull-down menus, windows, icons, and finger movements and specific ways they are used to select or initiate actions.

• Reflects major creative effort by programmers.




SIGNIFICANT CASES

DISCUSSION QUESTION

What do you think the impact would be on creative industries, such as music, movies and fiction novels, if copyright laws did not protect their intellectual property?



COPYING AND

SHARING

The problem looks different from different perspectives. How?

- Users

- Writers, artists, etc

- Publishers, software companies, etc

- Amateur artists

- scholars and advocates



COPYING AND

SHARING

Responses from the Content Industries:

Ideas from the software industries

• Expiration dates within the software

• Dongles (a device that must be plugged into a computer port).

• Copy protection that prevents copying

• Activation or registration codes



COPYING AND

SHARING

Responses from the Content Industries:

Ideas from the software industries

Some companies sold programs that deactivate the built-in copy protections on other programs.

- Court orders to shut down Internet bulletin boards and Web sites that threatened intellectual property.



COPYING AND

SHARING (CONT.)

Responses from the Content Industries (cont.):

Banning, suing and taxing

• It penalizes products, companies and activities that do not always infringe copyrights.

• This approach threatens innovation.



COPYING AND

SHARING (CONT.)



• Ban or delay technology via lawsuits

• CD-recording devices

• Digital Audio Tapes (DAT)

• DVD players (with copy feature)

• Portable MP3 players

• Require that new technology include copyright protections (copy-protection mechanisms).

• Tax digital media to compensate the industry for expected losses

• blank CDs/DVDs, iPods, cell phones



COPYING AND

SHARING (CONT.)



Should we ban or restrict a technology, a device or a software because it has the potential for illegal use?



COPYING AND

SHARING (CONT.)

Digital Rights Management (DRM):

• Collection of techniques that control uses of intellectual property in digital formats

• Includes hardware and software schemes using encryption

• The producer of a file has flexibility to specify what a user may do with it

• Apple, Microsoft and Sony all use different schemes of DRM



COPYING AND

SHARING (CONT.)

Digital Rights Management (DRM):

• DRM prevents fair uses as well as infringing uses.

• DRM is sometimes ineffective!



COPYING AND

SHARING (CONT.)

Video Sharing: Conflict and Solutions:

• New technology made it easier to infringe a copyright. How?

• Industry issues "take down" notices (DMCA)

• As long as sites like YouTube and MySpace comply with take down notices they are not in violation.

• Take down notices may violate fair use; some have been issued against small portions of video being used for educational purposes.



COPYING AND

SHARING (CONT.)

New Business Models and Constructive

Solutions:

After supreme court decision in MGM v. Grokster, people who wanted to operate legitimate businesses providing music realized they had to :

- Either filter out industry owned material.

- Or make agreements with, and payments to music companies.

-Organizations set up to collect and distribute royalty fees.



COPYING AND

SHARING (CONT.)


Solutions:

Negotiated payments:

- Some entertainment companies and Web contentsharing sites negotiate contracts for the Web site company to pay a share of its ad revenue to the entertainment companies.

- Some sharing sites use filtering software that examines files as people upload them, looking for the digital “fingerprint” of the entertainment company’s property.



COPYING AND

SHARING (CONT.)


Solutions:

- Revenue sharing allows content-sharing sites to allow the posting of content and share their ad revenues with content owners in compensation.

- Depending on agreements between the companies, the site can block the post entirely or pay the entertainment company for its appearance on the site.



COPYING AND

SHARING (CONT.)


Solutions:

- What do you think about this approach?!



COPYING AND

SHARING (CONT.)


Solutions:

More uses of advertising

The industry imbeds advertising in files that it then posts to the P2P sites.

• The advertiser pays fees to the copyright holder.

advertiser gets its message out, industry gets its fees

Some P2P sites are not happy with this development.

They consider marketing messages to be a form of spam .



COPYING AND

SHARING (CONT.)


Solutions:

Fan Fiction: Let it be

Fan Fiction includes stories written by amateurs using characters from popular fiction such as Harry Potter and

Star Trek.

Fan fiction is generally not seen as a threat

• The writers are often also customers

• Fan stories are not copies of copyrighted work, but they are derivative works.



COPYING AND

SHARING (CONT.)


Solutions:

• The response of writers and publishers to fan fiction was more calm than the response of the music and movie industries to unauthorized distribution of their products on the web.

• With derivative works, publishers do not worry only about loss of potential revenue but also about damages to their image.



COPYING AND

SHARING (CONT.)


Solutions:

Cloud storage raises copyright issues.

• Is copying legally purchased files to and from the cloud a fair use?

• Will the companies operating the cloud services have any responsibility for unauthorized content their customers store and share?

• Since copyright holders do not see what is stored, they do not have the option of sending takedown notices.



COPYING AND

SHARING (CONT.)

Ethical Arguments About Copying:

• Unlike physical property, copying or distributing a song, video, or computer program does not decrease the use or enjoyment by another person

• Copying can decrease the economic value of creative work produced for sale

• The fair use guidelines are useful ethical guidelines

• There are many arguments for and against unauthorized copying



COPYING AND

SHARING (CONT.)

Arguments For Copying:

“I cannot afford to pay for it.”

“The company is large and wealthy.”

“I’ll buy it later if I like it.”

“Copying it for my friend is an act of generosity.”

“My copying is minor compared to the large-scale piracy that goes on.”

“I don’t know how to contact the owner.”

“Everyone does it.”



COPYING AND

SHARING (CONT.)

Ethical Arguments About Copying:

Laws are not always good guides for ethical decisions, but the Fair use guidelines do a good job of identifying criteria to help distinguish fair and unfair copying.



COPYING AND

SHARING (CONT.)

International Piracy:

• Some countries do not recognize or protect intellectual property

• Countries that have high piracy rates often do not have a significant software industry

• Many countries that have a high amount of piracy are exporting the pirated copies to countries with strict copyright laws

• Many countries with high piracy rates do not have a significant software industry.



SEARCH ENGINES AND

ONLINE LIBRARIES

Search Engines

• Copying is essential to services of search engines.

• In response to search queries, search engines display copies of text excerpts from web sites and copies from images and videos.

• Search engine sometimes copy entire books so that they can search and display segments in response to user queries.

• Some search engines provide links to websites that infringe copyrights.





Search Engines

• Caching and displaying small excerpts is fair use.

Why ?

• Creating and displaying thumbnail images is fair use

• Court ordered Google to remove links to pages that infringe copyright.





Search Engines

BUT

• The display of short excerpts can reduce income to copyright holders in some situations.

• Google negotiated licensing agreements to copy and display headlines, excerpts and photos.





Books Online

• Project Guttenberg digitizes books in the public domain

• Microsoft scanned millions of public domain books in University of California's library

• Google has scanned millions of books that are in the public domain and that are not; they display only excerpts from those still copyrighted.





Books Online

Some court rulings favor search engines and information access; some favor content producers.



FREE-SPEECH ISSUES

Domain Names:

• A trademark is any word, name, symbol, or design, or any combination, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.

• Domain names may be used to criticize or protest

(e.g. XYZisJunk.org)

• Companies sue under trademark violation, but most cases dismissed.




Domain Names:

• Some companies buy numerous domain names containing their name so others cannot use them

• Does trademark violation claims interfere with freedom of speech ? How?




Posting Documents for Criticism:

• Documents that are copyrighted and trade secrets have been posted as a form of criticism

• Organizations have sued to have the documents removed from the Web

• In some cases courts have ruled that it is a copyright violation and the documents must be removed.




Posting Documents for Criticism:

• Some people posted copyrighted documents containing sacred teaching of the Church of Scientology on the internet.

• The people who posted the documents argued it was a fair use.

• They made copies for entire documents but not for commercial gain.

• The church argued the posted documents were “secret” ones and would show them only to high-ranking members who pay fees to move up ranks.

• In one judgment against the Church of Scientology, the court ruled that the church’s primary motivation was "to stifle criticism of Scientology in general and to harass its critics“.




Posting Documents for Criticism

• In two cases, courts found men who posted material infringed the church’s copyright.

• The church demanded Google not show the documents in search results



FREE SOFTWARE

• We have talked about free stuff in Chapter One.

• Free software - idea, an ethic, advocated and supported by large group of computer programmers who allow people to copy, use, and modify their software.

• Free means freedom of use, not necessarily lack of cost.

• Open source - software distributed or made public in source code (readable and modifiable)

• Proprietary software - (commercial) sold in object code (obscure, not modifiable) (E.g.: Microsoft

Office)



FREE SOFTWARE

Advantages and Disadvantages?!

- More people can use and benefit the program

- Bugs could be found and fixed quickly

It’s not easy to use (for ordinary people)

- Lack of support (like manuals)



FREE SOFTWARE

GNU project

• Began with a UNIX-like operating system, a sophisticated text editor, and many compilers and utilities

• Now has hundreds of programs freely available and thousands of software packages available as free software (with modifiable source code)

• Developed the concept of copyleft



FREE SOFTWARE

Should All Software Be Free?

 Would there be sufficient motivation to produce the huge quantity of consumer software?

 Would the current funding methods for free software be sufficient to support all software development?

 Should software be covered under copyright law?

 Concepts such as copyleft and the GNU Public

License provide alternatives to proprietary software within today's current legal framework



ISSUES FOR SOFTWARE

DEVELOPERS

Patent decisions, confusion, and consequences

• Patents protect inventions by giving the inventor a monopoly for a specified time period.

• Laws of nature and mathematical formulas cannot be patented.

• Obvious inventions or methods cannot be patented.




DEVELOPERS

Patents for Software?

• Patents protect inventions of new things or processes

• The Supreme Court (1981) said that software could not be patented; however a machine that included software could

• In 1980s and 1990s, U.S. started issuing patents for software

• Patents not supposed to be given for things that are obvious or already in common use




DEVELOPERS (CONT.)

Patents on Web Technologies:

Microsoft was fined $1.5 billion for violating MP3 patents. The decision was voided; the case continues.

Friendster applied for a patent on its socialnetworking Web techniques. While the patent was pending, sites such as MySpace and Facebook sprang up

• Friendster's patent was granted and it may now charge licensing fees to businesses using the technology.




DEVELOPERS (CONT.)

A few cases

• Paul Allen, co-founder of Microsoft, and ecommerce and Web-viewing

• Apple, Android, and tap-touch screens

• IBM , Amazon, and electronic catalogues



PATENTS FOR INVENTIONS IN

SOFTWARE

To patent or not?

 In favor of software patents





Reward inventors for their creative work

Encourage inventors to disclose their inventions so others can build upon them

 Encourage innovation


218-219

PATENTS FOR INVENTIONS IN

SOFTWARE

To patent or not?

 Against software patents







Patents can stifle innovation, rather than encourage it.

Cost of lawyers to research patents and risk of being sued discourage small companies from attempting to develop and market new innovations.

It is difficult to determine what is truly original and distinguish a patentable innovation from one that is not.


219

A GIFT OF FIRE SARA BAASE CHAPTER 4: INTELLECTUAL PROPERTY

A GIFT OF FIRE

SARA BAASE

CHAPTER 4: INTELLECTUAL

PROPERTY

Copyrights vs. Patent ?

PRINCIPLES, LAWS, AND CASES

PRINCIPLES, LAWS, AND CASES

New Business Models and Constructive

Solutions:

New Business Models and Constructive

Solutions:

Advantages and Disadvantages?!

PATENTS FOR INVENTIONS IN

SOFTWARE

PATENTS FOR INVENTIONS IN

SOFTWARE

Related documents

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Support

A GIFT OF FIRE SARA BAASE CHAPTER 4: INTELLECTUAL PROPERTY

A GIFT OF FIRE

SARA BAASE

CHAPTER 4: INTELLECTUAL

PROPERTY

Copyrights vs. Patent ?

PRINCIPLES, LAWS, AND CASES

PRINCIPLES, LAWS, AND CASES

New Business Models and Constructive

Solutions:

New Business Models and Constructive

Solutions:

Advantages and Disadvantages?!

PATENTS FOR INVENTIONS IN

SOFTWARE

PATENTS FOR INVENTIONS IN

SOFTWARE

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