Intellectual Property

By Thomas Kafalas

What is Intellectual Property?

What is Intellectual Property?

Any unique product of the human intellect that has commercial value

Includes songs, movies, books, art, computer programs, video games, etc

Trademarks

A word, symbol, picture, or sound used to identify goods from a certain business

Some trademarks become generic (yo yo, asprin, escalator, etc.)

Copyrights

How the government provides an inventor with an exclusive right to a piece of intellectual property. Such rights include:

• Right to reproduce the copyrighted work• Right to distribute copies of the work to the public• Right to display copies of the work in public• Right to perform the work in public• Right to produce new works derived from the

copyrighted work

Copyrights

Copyright Act of 1976 explicitly recognized that software can be copyrighted

Copyright protects the expression of the idea, not the idea itself

Copyright protects the executable program, not the source program

Patents

U.S. Government's way of providing an inventor with an exclusive right to a piece of intellectual property

Patents are in the public domain and provide detailed descriptions of the inventions

Apple's patent for cover flow

Patents

Patents expire 20 years after the filing date Software patents didn't exist until 1981

− Diamond v. Diehr – Supreme Court ruled that an invention related to curing rubber could be patented though the principal innovation was using a computer to control the heating.

Software can only be patented if it manipulates data representing values in the real world

Trade Secrets

Confidential piece of intellectual property that provides a company with a competitive advantage

Trade secrets never become public domain Companies can treat source code as a trade

secret

Fair Use

When circumstances allow the reproduction of a copyrighted work without the permission of the copyright holder (cited excerpts, news reports, etc)

Fair Use

Commercial nature vs non-profit educational purposes, Preamble purposes (criticism, comment, reporting,

teaching, research), Degree of transformation

Fair Use

Some intellectual property is more deserving of protection than others

Fair Use

Amount taken Quality of utilized work Ratio of amount taken to utilizing work (no more taken

than necessary)

Fair Use

Harm done to the (potential) market Includes harm done to derivative works

Audio Home Recording Act of 1992

Protects the rights of consumers to make copies of analog or digital recordings for personal, non-commercial use

No Electronic Theft Act 1994 – MIT student named

David LaMacchia posted copyrighted software on a public bulletin board on a university computer

Prosecutors were forced to drop charges because the programs were available for free

Congress passes act to make it a criminal offense to reproduce or distribute more than $1000 worth of copyrighted material in a six month period

Digital Millennium Copyright Act

Illegal for users to circumvent encryption schemes

Illegal to sell software programs designed to circumvent copyright controls

Online service providers that misuse copyrighted material face penalties

Extends copyright protection to music broadcast over the internet

Digital Rights Management

Any actions that owners of intellectual property may take to protect their work

xkcd.com

DRM Example: Sony BMG Music Entertainment

2005 – Sony ships millions of CDs with Extended Copy Protection

ECP prevented users from ripping audio tracks into MP3 format and monitored user listening habits by installing a rootkit when the CD was first played

Sony forced to cease production, make a patch available to uninstall the rootkit, allow customers to exchange their CDs, and offer $7.50 or 3 free album downloads for every CD with ECP that was exchanged

DRM: Copyproof CDs

PC CD drives use yellow book standards and will reread a block of bad bits until the data appears to be correct

Audio CD players use red book standards and skip an bad bits they encounter

Companies deliberately plant bad blocks of data to prevent computers from reading the CD

Midbar Tech's Cactus Data Shield, Sony's key2audio, SunnComm's MediaCloq

DRM Criticism

Technology is bound to fail Can undermine the principle of fair use Restrictions sometimes prevent libraries from

reformatting materials to make them accessible to people with disabilities

Can prevent people from anonymously accessing content

− Windows Media Player has an embedded globally unique identifier and keeps track of the content the user views.

Open Source

• 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

Open Source

• 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 (a program's open source license cannot require all other programs on a CD to be open source)

Open Source Programs

Benefits of Open Source

Gives people the opportunity to improve the program

New versions appear much more frequently Eliminates tension between obeying copyright

law and helping others Programs are the property of the user

community Shifts focus from manufacturing to service

Criticisms of Open Source

If the project doesn't attract many developers, the overall quality of the software can be poor

There is a possibility that different groups of users will independently make enhancements to a product that are incompatible with each other

Tend to have relatively weak GUIs Poor mechanism for stimulating innovation.

Companies develop new products because they are financially rewarded for them

Peer to Peer

Definition: transient network allowing computers running the same networking program to connect with each other and access files stored on each others' hard drives

Peer to Peer: RIAA Lawsuits

2003 – RIAA warned users of KaZaA and Grokster that there would be legalpenalties imposed for swapping copyrighted music files

RIAA identified the IP addresses of the most active KaZaA supernodes and subpoenaed Verizon, asking it to identify the names of the customers running the nodes.

Verizon was ordered by a judge in Washington DC to release the names

Peer to Peer: RIAA Lawsuit

RIAA sued 261 people for distributing copyrighted music and sent letters to 204 more who had downloaded over 1000 music files and gave them the option to settle before going to court

Lawsuits were setback when the Supreme Court ruled that Verizon didn't need to respond to the subpoenas of the RIAA

Peer to Peer: MP3 Spoofing

Recording industry wants to make downloading mp3s from peer to peer networks unreliable

Overpeer is responsible for posting spoofs of over 30,000 songs, games, and videos on P2P networks

Spoofs contain defects like an annoying noise or repetition of a part of the song

Locke's Theory of Property Rights

• People have a right to property in their own person

• People have a right to their own labor• People have a right to those things that they

have removed from Nature through their own labor

Locke's Theory of Property Rights

Locke's Theory was developed for physical objects, paradoxes occur when applied to intellectual property

What if two people have the same idea independently?

What happens if intellectual property is copied?

Utilitarian View Based on a chain of consequences • Copying software results in lost sales

– Reduced sales result in a decline in the industry

• A decline in the industry will result in fewer products

– Fewer products means fewer benefits for society

• Software copying is wrong

Conclusion

Dealing with the protection of intellectual property is still something we are working on. We have yet to come up with a viable solution for protecting IPs and it is hard to make laws for something that isn't tangible. The effects of piracy are very hard to quantify and current DRM solutions can cause more harm than good.