Intellectual Properties -- Class Notes

NOTE: These notes are set up so that for those who wish to view the text only there is no need to click on the underlined links.

Protection

Copyrights
Patents
Trade Secrets
Trademarks

Basic Copyright Rules

Definition
Protects original works of authorship against unauthorized copying and thus loss of sales of original items
Application
Literary, dramatic, musical choreographic, pictorial works - extended in 1980 to include computer programs and data bases
Ownership
The person who originates the work but does not necessarily have to mark
Fair Use
The right to reproduce portions with prior permission

Fair Use Guidelines

if you already own a copy, you CAN make another, so long as the original would not normally expect to be replaced on a regular basis (i.e. is a consumable)
generally one can reproduce a literary work so long as the excerpt does not exceed 250 words
the copyright notice must appear on each reproduced copy
teacher copying for class cannot charge for more than the cost of reproduction
copying must not be a substitute for purchasing
cannot create anthologies or compilations

Perhaps the most famous "Fair Use" case is that of "2 Live Crew" and their parodic rendition of the Roy Orbison 1964 song "Oh, Pretty Woman". This page makes extensive use of audio.
A more recent case against David LaMacchia, a Graduate student at MIT, extends the apparent range of the Fair Use Guidelines. However don't assume that the decriminalization of copying also eliminates civil action!

General Rules
- copyright applies to expressions not ideas
- copyright duration - starts at the instance of creation
  - exists for life of author plus 70 years
  - exists 95 years for anonymous works or works for hire
  - registration is not necessary, but cannot sue for infringement unless registered
- copyright exists so long as the copy includes © or equivalent, plus date
- © is not needed on copies not publicly distributed but is highly recommended
Application to Software

DEFINED FOR PROGRAMS IN 1980
- "look and feel" protection based on "structure, sequence, and organization"
- merely one form of early protection
- quicker to obtain than patent rights
- copyright notice must appear when in use
- other general copyright rules apply
Patents
- Supreme Court ruled that a process that would otherwise be patentable without a computer is not unpatentable because it is executed by a computer
  -- Diamond vs. Diehr, 1981
- programs by themselves are NOT patentable, but computers operated by novel or non-obvious programs are patentable
  mathematical algorithms are not patentable
- mental steps doctrine:
  a system performing the same steps as a human would do is not patentable
- unpatentable also:
  methods of doing business, processes involving human judgment, arrangements of printed matter
- rights must be filed within one year of initial public view
Patent Protection
- protection lasts for twenty years from the date of submission and then is returned to the public domain [previously the period was seventeen years from date of approval]
- patents can be infringed even without copying or even knowledge of the existence of the patent
- patents have exclusive rights to the owner, and can exclude all others from use and manufacture
- can cover a wider field than the original application by doctrine of equivalents that perform substantially the same function in the same way
- expensive
- must be protected or will be lost
Reverse Engineering
Sega Enterprises vs. Accolade, Inc.
9th Circuit Federal Court of Appeals, 8 August 1992
California
DISASSEMBLY OF PRODUCT LEGAL - EXAMPLE OF FAIR USE
CRITERIA FOR DISASSEMBLY AS A VALID TOOL:
- any exploitation of disassembly is indirect or derivative
- cannot be examined without copying or disassembly
- ideas "taken" do not compose the whole product
- does not compete but instead promotes diversity
Trade Secrets
- BASED ON COMMON LAW
- VIRTUAL LIMITLESS
- CAN BE ESTABLISHED BY CONTRACT OR RELATIONSHIP WITH EMPLOYEES
- LIMITED TO PREVENTION OF COPYING
- CAN BE REVERSE ENGINEERED WITHOUT INFRINGEMENT
- NOT IN THE PUBLIC DOMAIN AND MUST BE PROTECTED FROM PUBLIC ACCESS
An ongoing case involving not only trade secrets is the case of Cadence Design Systems Inc. vs. Avant! Corporation.
Trademarks
- PROTECTS THE NAMES OF PRODUCTS
- ALSO CALLED SERVICE MARKS
- NOT PROTECTED BY FEDERAL LAW EXCEPT IF USED IN INTERSTATE COMMERCE
- LIMITS USE OF NAME TO SPECIFIC PROCESSES
- CLASSIC CASE IS THE PROGRAMMING LANGUAGE ADA
Why Protect Systems?
- developers have spent a great deal of time, effort and money to develop and market a product
- they deserve a fair chance to recover their investments
- intellectual property has ownership by right of invention, development or expression
- is it worth protecting?
- cannot software be protected in other ways?
- does protection imply a monopoly?
- what about fair competition?
- lack of ownership does not imply that one cannot make a business through a licensing agreement
Responsibility to Protect
- Any intellectual property claim is valid so long as the owner challenges all potential infringements.
- A single failure to protect a claim is sufficient to cause the loss of the property rights.
- A license (including a free license) to use intellectual property is an acknowledgement by the licensee that the owner has property rights.

Intellectual Properties -- Class Notes

Responsibility to Protect