Intellectual Property
Lecture Notes
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The controversy over intellectual property
rights in cyberspace can be viewed as a
battle between two groups whose
interests are diametrically opposed:
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One camp advocates greater control of
proprietary information.
The other advocates unrestricted access to
electronic information that is now available
globally because of cybertechnology.
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How do these two camps relate to the
opposing camps in the privacy policy
debates?
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Entrepreneurs and business interests
argue for strong legal measures that will
enable them to control proprietary
information in cyberspace, while ordinary
users argue for greater access to that
information.
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Our main focus will be on software as
intellectual property.
The disputes in the intellectual property
realm for software include the question of
whether software programs should be
copyrightable or patentable or both and
whether the “look and feel” of a user
interface deserves the protection of
intellectual property laws.
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A major intellectual property issue in
recent years has related to the
downloading of MP3 files that include
proprietary information.
The RIAA has aggressively pursued
enforcement of intellectual property laws.
What is Intellectual Property?
Why Should it be Protected?
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Legal scholars and philosophers point out
that property laws and norms play a
fundamental role in shaping a society and
in preserving its legal order.
Originally, “property” referred to land.
It now includes tangible objects that an
individual can own, such as an
automobile, articles of clothing, etc.
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Ownership claims involving “intellectual
property” are similar in certain respects,
but less straightforward in others.
Intellectual property consists of objects
that are often not as overtly tangible as
physical objects.
These intellectual property objects
represent creative works and inventions
which are manifestations or expressions of
the intellect.
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A physical object can only be possessed
by one person at a time. Intellectual
property can be held by many people
simultaneously.
Legal protection is only given to a tangible
expression of an idea that is creative or
original.
For a literary or artistic idea to be
protected it must be expressed (or “fixed”)
in some tangible medium such as a
physical book or a sheet of paper
containing a musical score.
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If the idea is functional in nature, such as
an invention, it must be expressed as a
machine or a process.
Whereas authors are granted copyright
protections for expressions of their literary
ideas, inventors are given an incentive, in
the form of a patent protection, for their
functional ideas.
Why Protect Intellectual Objects?
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The philosophical justification for granting
property rights is grounded in two
different theories about property.
One theory is based on the rationale that
a property right is a type of “natural right”
that should be granted to individuals for
the products that result from the labor
expended in producing an artistic work or
a practical invention.
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The other theory is that property rights
are social contracts designed to encourage
creators and inventors to better serve
society by bringing forth their artistic
works and practical inventions into the
marketplace.
Philosophers and legal theorists point out
that the introduction of computer software
has created questions regarding
intellectual property laws for which there
are no easy answers.
Software as Intellectual Property
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In the US software is eligible for copyright,
patent, and trade secret protection.
Both copyright and patent law derive from
Article 1, Section 8 of the US Constitution,
which (in turn) was based on earlier
concepts from British law:
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“The Congress shall have the power … to
promote the Progress of Science and the
useful Arts, by securing for limited Times to
authors and inventors the exclusive Rights to
their respective Writings and Discoveries.”
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The first copyright law in the United States
was enacted in 1790 and applied primarily
to books, maps, and charts.
The copyright law was extended to cover
new media as they emerged; media such
as photographs, movies, and audio
recordings.
In 1909 the copyright law was amended
so that it would not protect the roll for a
player piano, since it was something that
could not be read by humans.
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It became legal to copy a song onto a
player piano roll. It was not a copyright
violation.
More details on the relevant Supreme
Court rulings follow. The question is: Why
is digital music different from a player
piano roll?
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Beginning in the 1960s arguments were
made that computer programs should be
eligible for copyright protection.
With computer programs, the source code
is readable by humans, but the executable
is more like a roll for a player piano.
The Copyright Act of 1976 did not protect
software, but it was amended in 1980 to
extend copyright protection to programs,
computers, and databases that “exhibit
authorship”.
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The Copyright Act of 1976 has been
amended several times. Copyright
protection still applies to software.
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Another issue is whether the look and feel
of the user interface of a program could
be copyrighted.
In 1987 Lotus Development Corporation
filed a lawsuit against Paperback Software
International, LTD, whose user interface
included menus and buttons that
resembled the Lotus 1-2-3 product.
In 1990, a federal court judge in Boston
decided in favor of Lotus.
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However, the “look and feel” protection
issue has evolved in the other direction.
Lotus initially won a copyright
infringement suit against Borland
International, Inc., in a look and feel case,
but that decision was overturned in 1995.
Apple lost its suits against MicroSoft and
Hewlett-Packard. Apple had claimed that
MS and HP had stolen the look and feel of
the Macintosh user interface (which Apple
basically stole from Xerox PARC).
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In the rulings against Apple and Lotus the
courts determined that icons and menus in
a computer interface were analogous to
buttons on a VCR or to controls in a car.
What do you think of this reasoning?
What would have happened if these
rulings had gone in the other direction?
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In 1998 Congress passed the Sonny Bono
Copyright Term Extension Act (SBCTEA).
The SBCTEA extended the length of copyright
protection from the life of the author plus fifty
years to the life of the author plus seventy
years.
Protection for “works of hire” produced before
1978 were extended from 75 to 97 years.
If an author receives payment from a
corporation or organization to write something,
it is a work of hire and the copyright belongs to
the corporation or organization.
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Critics of the SBCTEA point out that the
law was passed just in time to keep
Mickey Mouse from entering the public
domain and they also point out that
Disney Corporation lobbied very hard for
the passage of this act.
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I practically wrote that law!!!
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What an irony! Walt Disney’s Mickey
Mouse character was a rip-off from one of
Buster Keaton’s movies!!!
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Congress also passed the Digital
Millennium Copyright Act (DMCA) in 1998.
The DMCA has been criticized by many
legal and technology experts for going too
far in protecting intellectual property.
For example, computer security experts
think it is a disaster because it prohibits
sharing information obtained through the
reverse engineering of closed source
software with other security professionals.
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The DMCA contains a highly controversial
anti-circumvention clause, which forbids
the development of any software or
hardware technology that circumvents
protections for copyrighted digital media.
News bulletin: The Supreme Court rules
against the file-sharing service Grokster in
a closely watched piracy case.
What Does Copyright Law Protect?
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A copyright is given to a person, called the
author.
The author can be an individual, an
organization, or a corporation.
Copyright protection is given for an
expression of an idea such as a book,
poem, musical composition, photograph,
dance movement, motion picture,
audiovisual work, or computer software.
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For a work to be protected under
copyright law, it must be:
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Original
Nonfunctional
Fixed in a tangible medium.
Functions and processes, including
inventions, are protected by patents and
typically are not eligible for copyright
protection.
Ideas, concepts, facts, processes, and
methods are not protected by copyright
law.
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Copyright holders have the exclusive right
to:
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Make copies of the work,
Produce derivative works (e.g., translations
into other languages, movies based on the
book, etc.)
Distribute copies,
Perform works in public (e.g., musicals, plays,
etc.), and
Display works in public (e.g., art works).
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Specific exceptions have been made to
these exclusive rights in certain
circumstances.
For example, the purchaser of software is
permitted to make one archival copy of
the program.
Fair Use and First Sale
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Fair use means that every author or
publisher may make limited use of another
person’s copyrighted work for purposes
such as criticism, comment, news
reporting, teaching, scholarship, and
research.
College professors have special rights to
share information with students and
colleagues under the fair use doctrine.
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The first sale doctrine states that once
you buy a copyrighted work, the original
owner of the copyright loses certain
rights.
For example, once you purchase a copy of
a book, audiotape, painting, etc., you are
free to give it away, resell it, or even
destroy your copy.
Whether this applies to software is not
clear.
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Let’s go over the Eric Eldred Web site
case illustration from Herman Tavani’s
book.
News bulletin: Authors Guild sues Google.
Software Piracy
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Software manufacturers claim to have lost
millions of dollars of potential revenue
because of software piracy.
Critics have argued that claims made by
the software manufacturers about their
loss of revenue due to pirated software in
developing countries are either greatly
exaggerated or altogether bogus.
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They point out that many people and
organizations in those countries cannot
afford to pay the prices set by American
software companies for their products.
This is the main theme of an article about
getting blood from a turnip.
Helen Nissenbaum says that there are
certain cases in which making a copy of a
neighbor’s software program can be
morally justified.
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Nissenbaum gives an example of a
graduate student who cannot finish her
dissertation unless she has the
appropriate word processing software.
Nissenbaum suggests that more harm
results when the student, who cannot
afford the word-processing program, is
denied the use of that program.
Do you buy this argument?
What are the implications of Open Source
for this situation?
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Others defend software piracy on the
grounds that you are not hurting Micro$oft
since Micro$oft has billions upon billions of
big bucks.
However, if one accepts this argument, it
can easily lead to a slippery slope kind of
situation in terms of ethical reasoning.
Many argue that the unauthorized copying
of software is never morally permissible.
They argue that making an unauthorized
copy of a program is a form of theft.
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Since theft always results in harm to
someone, software piracy can never be
morally justified according to this
argument.
Let’s go over the Robert LaMacchia case
illustration from the handout.
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In response to the LaMacchia case, the No
Electronic Theft (NET) Act was passed in
1997.
This law criminalizes the dissemination of
copyrighted information by electronic
means.
The NET Act has made it criminal to
reproduce or distribute, including by
electronic means, one or more copies of
vinyl disks or one or more copyrighted
works, which have a total retail value of
more than $1,000.
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Like LaMacchia’s Web site, Napster
provided a distribution center for
proprietary electronic information,
although Napster was not distributing
software.
The piracy laws apply to illegal copying
and distribution over a computer network
of any kind of proprietary information in
digital form.
Let’s go over the Napster case illustration
in our handout.
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“Thus far, the courts have ruled against
Napster, but many believe that the
Napster controversy is just the beginning
of an ongoing battle with the recording
industry over the use of the latest
available technologies to exchange
proprietary music on-line.”
The RIAA has sued almost 8,500 people
(many of them students) for illegal
copying and distribution of music.
The DeCSS Case
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In the summer of 2000, Paramount
Pictures, Universal Studios, and MGM
Studios brought a lawsuit against the
owners and operators of three commercial
Web sites, each of which included
software that users could download for
free and that would enable them to view
DVDs on machines that were not
authorized to use that technology.
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Jan Johansen and two of his teenage
friends in Norway developed the
controversial program, called DeCSS in
1999.
DeCSS enables users to decrypt the CSS
(Content Scrambling System) code that
lies at the base of DVD technology.
Let’s go over the Decrypting Code for DVD
Technology case illustration in the
handout.
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Should it be illegal to include DeCSS
software on a Web site merely because
that software could be used in activities
that would violate the law?
Many critics of the DMCA point out that
many items currently available for
purchase on the Internet should also be
banned for sale if we employ the rationale
that such an item could be used illegally
(e.g., scissors, knives, and razors).
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A similar issue was involved in the case of
Sony Corp of America vs. Universal City
Studios, Inc. (1984).
The Supreme Court ruled in favor of Sony.
The Court ruled that just because VCR
technology could be used to do something
illegal, that was not sufficient grounds for
banning the technology.
Universal Studies had argued that the new
Sony VHS technology could allow for the
making of illegal copies of movies.
Patents
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Patent protection is implicit in Article 1,
Section 8 of the US Constitution.
Patent protection applies to inventions and
processes.
The Patent Act requires that an invention
or process satisfy three conditions:
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Usefulness
Novelty
Non-obviousness
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The owner of a patent has a complete
monopoly over the use of his or her
invention or process for twenty years.
Although computer hardware inventions
clearly satisfied the requirements of patent
law, this was not initially the case with
computer software.
Legal decisions (such as Gotshalk v.
Benson, 1972) established a strong
precedent for not awarding patents for
software.
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Benson applied for a patent for an
algorithm that translated the
representation of numbers from decimal to
binary.
If granted a patent for his algorithm,
Benson would have controlled almost
every computer in use for a number of
years.
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He was denied a patent on the basis of a
policy that bars the granting of patents for
mere mathematical formulas or abstract
processes that can be performed as a
series of “mental steps” with the aid of
pencil and paper.
Then came the pivotal Diamond v. Deihr
case discussed in the handout.
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In the Diamond v. Deihr case the
Supreme Court ruled that computer
algorithms were not patentable.
They pointed out that the patent awarded
to Deihr was not for the computer
program, but for the rubber tire
transformation process as a whole.
Since the Deihr case, patents have been
granted to computer programs and
software applications.
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Some fear that patent protection has
gone too far.
The US Patent and Trademark Office
(PTO) currently issues about 20,000 new
software patents every year.
This raises a lot of issues about what
exactly can be patented in software
applications and, especially, user
applications in e-commerce.
This brings us to one of my favorite
topics: ACACIA’s patent for video and
audio streaming.
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Another important issue that has been in
the news in recent months is the SCO
case. Some supporters of Open Source
since this as the biggest threat to the
Open Source movement.
Let’s go over the Amazon.com v.
BarnesandNoble.com case in the handout.
What do you think about this patent
business?
Perhaps you’ll find the following comments
that Bill Gates has made over the years
regarding patents especially interesting:
“If people had understood how patents
would be granted when most of today’s
ideas were invented and had taken out
patents, the industry would be at a
complete stand-still today.”
“The solution … is patenting as much as we
can … . A future start-up with no patents
of its own will be forced to pay whatever
price the giants choose to impose. That
price might be high. Established
companies have an interest in excluding
future competitors.”
Okay, so I’ve had a change of mind!
Trade Secrets
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A trade secret consists of information used in
the operation of a business or other enterprise
that is sufficiently valuable and secret to afford
an actual or potential economic advantage over
competitors.
Trade secrets can be used to protect:
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Formulas (e.g., Coca-Cola)
Blueprints for future projects
Chemical compounds
Processes of manufacturing
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Trade secrets are generally recognized as
“secrets” on which a company has
expended money and energy and that are
shown only to a select few within an
organization.
One problem with protecting trade secrets
is that trade secret law is difficult to
enforce at the international level.
There is growing evidence that suggests
that international industrial espionage has
become a growing industry.
Philosophical Foundations
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Let’s briefly characterize three theories
that have traditionally been used to justify
property rights (before the cyberspace
era):
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The Labor Theory of Property
The Utilitarian Theory of Property
The Personality Theory of Property
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The Labor Theory of Property. The basic
idea behind this approach is that a person
has the right to the fruit of his or her
labor.
This approach traces its origins to 17th
century philosopher John Locke.
Let’s consider the relevance of Locke’s
theory to the ABC Corp v. XYZ Inc
scenario in the handout.
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The Utilitarian Theory of Property.
According to this theory, granting property
rights will maximize the good for the
greatest number of people in a given
society.
Utilitarian theory underpinned the
rationale used by the framers of the US
Constitution for granting intellectual
property rights.
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The Founders reasoned that if incentives
were given for individuals to bring out
their creative products, American society
in general would benefit.
Let’s go over the Sam’s Multiple CD Loader
/ Reader scenario in the handout.
The question raised by this scenario is
what motivates creativity in computer
technology.
Linus Torvalds addressed this issue in our
earlier news bulletin.
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Was a utilitarian incentive (i.e., financial
benefits) necessary to get Sam to follow
through on his invention?
Would he have brought his invention into
the marketplace if there were not a
financial enticement?
How can we assure continued innovation
and creativity – two prerequisites for
American prosperity?
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The Personality Theory of Property.
According to the personality theory of
property, the intellectual object is an
extension of the creator’s or author’s
personality.
For this reason, advocates of the
personality theory believe that artistic
works deserve legal protection.
Let’s go over the case illustration and
scenario at the end of our handout (Nile’s
television commercial and Angela’s B++
tool.)
INFORMATION WANTS
TO BE FREE
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Richard Stallman is opposed to intellectual
property rights for software.
He did copyright his emacs editor, but he
claims he did this to prevent others from
copyrighting and then making a profit
from his software.
Stallman has been a staunch advocate of
the view that INFORMATION WANTS TO
BE FREE.
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Stallman believes that programmers would
continue to write software programs even
if they received no financial rewards in the
form of copyright protections.
Stallman makes the point that information
is something that human beings desire to
share with one another.
Stallman believes that software
development is like science. Science
progresses most rapidly when knowledge
is shared openly.
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According to Stallman, in order for
information to be shared, it must be
communicated, so elaborate intellectual
property structures and mechanisms that
prohibit, or even discourage, the
communication of information would seem
to undermine its very purpose – as
something to be shared.
Your reaction?
INFORMATION WANTS
TO BE SHARED
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Herman Tavani argues that INFORMATION
WANTS TO BE SHARED has a chance to be
taken far more seriously than INFORMATION
WANTS TO BE FREE.
The WWW came into being because SIR Tim
Berners-Lee, who invented HTTP, shared it freely
with the world.
The idea behind HTTP was to allow for the
sharing of information.
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Doug Englebart never received a patent
for his invention, the mouse. He shared it
freely with everybody.
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The sharing of this kind of information has
benefited many of those entrepreneurs
who now seek to control the flow of
information in cyberspace.
MS Windows ultimately derived from ideas
that came from Apple and Steve Jobs (at
Apple) got most of those important ideas
from Xerox PARC.
It is reasonably accurate to say that
current user interfaces have benefited
from the sharing of information along the
way.
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The Open Source movement is certainly
consistent with this idea that
INFORMATION WANTS TO BE SHARED.
Eric Raymond was greatly influenced by
Richard Stallman.
PRESERVING THE
INTELLECTUAL COMMONS
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This section of Tavani’s book was
especially inspiring.
They are similar to ideas expressed by the
Stanford University law professor,
Lawrence Lessig.
Lessig is a strong supporter of the Open
Source Movement.
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The key question relates to the future of
the intellectual commons.
What if all the information that we have
traditionally shared freely were to
disappear from the public domain and
enter the world of copyright protection?
In the short term, the result might be that
corporations and some individuals will
profit handsomely from this privatization
of information policy.
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In the long term, however, our society
may be worse off intellectually, spiritually,
and even economically, if the short-term
goals or privatization are not balanced
against the interests of the greater public.
If these topics interest you, you might
want to look at some of Lessig’s books.