Intellectual PropertyOwnership of information will determine accessTwo sides• Entrepreneurs and business argue for strong leg al mea-sures to control proprietary information• Individuals argue for greater access to informationIssues• Ownership of Software• Right to distribute propri etar y software and other infor-mation on the Internet• Is software patentable, copyrightable, or both?• Doe ”look and feel” of an interface deserve IP protection?• Do websites qualify as property?• Transfer and dlownload of MP3 files with proprietaryinformation1Intellectual Property (IP)• Property– Complex concept– Fundamental to shaping society and preserving legalorder– Traditionally land, then tangible items– Abstraction∗ relationship between individuals in reference tothings∗ who has control2• Intellectual Objects = IP– Intangible, creative wor ks or inventions that are ex-pressions of ideas– Non-exclusionarymultiple people can possess it– Non-scarcitycan be easily reproduced– Cannot own an idea– Can own the expression of an idea that is creative ororiginal∗ must be fixed in some tangible medium (e.g. bookor musical score)∗ machine or process3Bases for Protecting IP• Why should property be protected? Because of laws• Anglo-American law is grounded in natural rights andsocial constructs• Natural rights: right is granted for products that resultfrom labor expended to produce the product• Property rights are social constructs established to en-courage inventors/creators to bring results to the mar-ketplace• European law: work is an expression of the creator’s per-sonality, so the creator has the right to determine howthe work is displayed and distributed4Software as IP• No easy answers, fiercely debated in courts• Hardware has patent protection, like other tangible ob-jects• Conceptual muddles– Software expression: human readable? source vs.machine code– Invention to be patented or algorithm that cannotbe patented?• Forms of protection: copyright, patent, trademark, trades-ecret5Copyright• Copyright Law– 1790 boo ks, maps, charts– 1909 any form read and seen visually – excludedplayer piano rolls⇒ machine readable vs human readable– 1976 Modified, but still excluded software– 1980 Literary work extended to include programs,computers and databases that exhibit authorship∗ program is a set of instuctions to be used directlyin computer to bring about certain results∗ to copyright, need an original expression or ar-rangement of ideas and not just ideas– 1984 Semiconductor Chip Protection Act– Protection for ”look and feel” of an interface deniedby courts6– 1998 Sonny Bono copyright Term Extension Act ( SBCTE A)∗ life of author + 50 years → life of author + 70years∗ works of hire before 1978: 75 years → 95 years∗ can take work out of the public domain– Digital Millenium Copyright Act (DMCA)∗ forbids development of any software or hardwaerthat circumvents copyrighted digital media∗ very controversial• Copyright law protects the author (person or corpora-tion)• Copyright is given for expression of an idea that is orig-inal, nonfunctional, fixed in a tangible medium• Functions, processes and inventions are protected by patents• Author’s rights: make copies, produce derivative wor ks,distribute copies, perform or display works in public7• Fair use doctrine– Every author or publisher may make use of copy-righted work for criticism, comment, news, research,or teaching– supports ”reverse engineering” – the anticircumven-tion of DMCA is a challenge• First-Sale Doctrine– Once original wor k is sold for the first time, theowner loses rights over the work– Not clear if you can give away so ftware licensed foruse by a particular owner– Challenged by DMCA and SBCTEA8• Software Piracy as Copyright Infringement– Are dollar losses exaggerated?– Issue: small number of copies vs. systematic piracy– Morally worng? OK if you can’t afford it? No realharm to large vendors? Slippery Slope?– LoMacchia’s BBS – case dropped9• No Electronic Theft Act 1997 (NET)– Criminalized dissemination of copyrighted materialby electronic means– Too far? Is online viewing of copyrighted materialillegal? ”fixed” in memory?– Centralized server (Napster) vs. Decentralized servers(Gnutella,Morpheus, KaZaA) : conceptual muddle• DeCSS– Decrypts DVD’s– Argued for fair use on linux (cannot handle encryptedDVD’s)– Shot down under anticircumvention of DMCA∗ illegal to circumvent using decryption∗ under appeal– Precedent: not legal to prohibit use o f technologybecause it can be used in copyright infri nge ment ifit has other uses (5-4 Supreme Court)10Jurisdiction• International– Treaties∗ TRIPS IP and co pyright∗ EU – unifying contract law∗ UN convention on contracts for the sale of goods• US– Uniform Commerce Code∗ sale of goods and contracts∗ lease of goods– Uniform Computer and Information Transactions Act(UCITA)∗ Computer Information transactions∗ All contracts regarding software∗ Gives venfors right to rem ot e repossession∗ Need vendor permission to transfer license∗ Undermines consumer protection laws and threatesfair use and first sale exceptions∗ Good for e-commerce, cre ates jobs11Patents• Invention or process• 20-year exclusive monopoly• Based on Constitution• Current: Patent Act of 1952, amended 1995• Inventions must satisfy three conditions: usefulness, nov-elty, nonobviousness• Three types: design, utility and plant– Design: for an article of manufacture– Utility: process, machine or article of manufacture• Computer hardware covered• Diamond vs. Diehr– New process rubber → tire– Computer program is ”new” part– Supreme Court ruled pat ent is fo r the process as awhole12Trademarks• Word, name, phrase, symbol that identifies a product orservice• 1946 Lanham Act• Supposed to be distinctive• Issues of trademark dilutionTrade Secrets• Information used in business suficiently secret and valu-able to afford potential economic advantage• Protect formulas (Coca Cola), blueprints, chemical com -pounds, manufacturing processes• Owner has exclusive rights as long as the secret is main-tained• Law difficult to enforce at international level13Philosophical Foundations of IP• Labor Theory– John Locke (1690)– financial/economic basis– A person is ent it le d to the fruits of