intellectual property issues professor matt thatcher, mis 748
TRANSCRIPT
Intellectual Intellectual Property IssuesProperty Issues
Professor Matt Thatcher, MIS 748 Professor Matt Thatcher, MIS 748
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Comparing ProtectionsComparing Protections(Copyright, Patents, Trade (Copyright, Patents, Trade
Secret)Secret) What is protected?What is protected? For how long?For how long? Penalties for infringement?Penalties for infringement? Is there protection from independent Is there protection from independent
discovery?discovery? Application process?Application process? Is the innovation placed in the public Is the innovation placed in the public
domain?domain?
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Copyright Laws: Copyright Laws: Information vs. ExpressionInformation vs. Expression
Feist Publications v. Rural Telephone Service Feist Publications v. Rural Telephone Service (1991)(1991) RuralRural
telephone provider under statutory obligation to compile telephone provider under statutory obligation to compile phone directory for all customers free of chargephone directory for all customers free of charge
FeistFeist Specialized in compiling directoriesSpecialized in compiling directories Copied 4,000 entries from Rural’s directoryCopied 4,000 entries from Rural’s directory
Rural sued for copyright infringement of its Rural sued for copyright infringement of its collections of informationcollections of information
Court decisionCourt decision Favor of Feist since Rural’s directory had no Favor of Feist since Rural’s directory had no creative creative
expressionexpression
Can you copyright Can you copyright recipesrecipes??
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Copyright Laws: What is Copyright Laws: What is covered?covered?
Graphical User Interfaces (Graphical User Interfaces (look and feellook and feel)?)? Apple v. Microsoft (1994)Apple v. Microsoft (1994)
Apple sued to prevent Microsoft and Hewlett-Apple sued to prevent Microsoft and Hewlett-Packard from using visual GUI elements that were Packard from using visual GUI elements that were similar to Apple’s MacIntosh OSsimilar to Apple’s MacIntosh OS
Apple lost all claims in the lawsuitApple lost all claims in the lawsuit Lotus v. Borland (1995)Lotus v. Borland (1995)
Quattro Pro released a spreadsheet that had a mode Quattro Pro released a spreadsheet that had a mode that imitated the Lotus 1-2-3 menu structure (but that imitated the Lotus 1-2-3 menu structure (but not the code)not the code)
Lotus sued saying the Lotus sued saying the look and feel look and feel is copyrightableis copyrightable Courts disagreed saying the menu system is a Courts disagreed saying the menu system is a
method of operation – method of operation – Courts sided with Borland Courts sided with Borland
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Copyright Law: Fair Use Copyright Law: Fair Use DoctrineDoctrine
The purpose of the useThe purpose of the use Commercial use vs. non-profit useCommercial use vs. non-profit use Education, research, news, critiquesEducation, research, news, critiques
The nature of the copyrighted workThe nature of the copyrighted work Creative works (novels) get more protection Creative works (novels) get more protection
than informational works (databases of than informational works (databases of information)information)
The portion of the copyrighted work usedThe portion of the copyrighted work used The effect of use upon the value of the The effect of use upon the value of the
copyrighted workcopyrighted work
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Copyright Law: Fair Use Copyright Law: Fair Use DoctrineDoctrine
(cont.)(cont.)
Consider the following along the fair Consider the following along the fair use doctrineuse doctrine The use of quotes and short passages The use of quotes and short passages
from a novel in a negative book review from a novel in a negative book review in a newspaperin a newspaper
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Copyright Law: Fair Use Copyright Law: Fair Use DoctrineDoctrine
(cont.)(cont.) Sega v. AccoladeSega v. Accolade (1992) (1992)
case about the use of reverse engineering case about the use of reverse engineering to enable to enable interoperabilityinteroperability
Sega had a computerized lock so that only Sega had a computerized lock so that only Sega game cartridges would work on its Sega game cartridges would work on its gaming systemgaming system
Accolade reverse engineered the lock to Accolade reverse engineered the lock to produce compatible cartridgesproduce compatible cartridges
Court decisionCourt decision It is It is fair usefair use to disassemble protected, to disassemble protected,
copyrighted work to allow copyrighted work to allow interoperability interoperability and and avoid monopoly concernsavoid monopoly concerns
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Copyright Law: Fair Use Copyright Law: Fair Use DoctrineDoctrine
(cont.)(cont.) Sony v. Universal Studios Sony v. Universal Studios (1984)(1984)
Betamax Betamax casecase Universal sued Sony claiming that Universal sued Sony claiming that
manufacturers of technologies that enable manufacturers of technologies that enable copyright infringements should be held liable for copyright infringements should be held liable for any infringements committed by its purchasersany infringements committed by its purchasers
Sony claimed that there are many non-infringing Sony claimed that there are many non-infringing fair uses of betamax and VCRsfair uses of betamax and VCRs
Time-switchingTime-switching Supreme Court Ruling (5-4)Supreme Court Ruling (5-4)
Betamax has substantial non-infringing uses (fair use)Betamax has substantial non-infringing uses (fair use) Manufacturers of home video recording devices Manufacturers of home video recording devices cannotcannot
be held liable for copyright infringement of consumersbe held liable for copyright infringement of consumers
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Copyright Law: DMCACopyright Law: DMCA
Digital Millennium Copyright Act (1998)Digital Millennium Copyright Act (1998) Illegal to:Illegal to:
Circumvent technical protection of copyrighted workCircumvent technical protection of copyrighted work Manufacture or distribute technology that enables Manufacture or distribute technology that enables
others to circumvent copyrighted workothers to circumvent copyrighted work PenaltiesPenalties
5 years in prison / $500,000 for each offense5 years in prison / $500,000 for each offense ExceptionException
Allows reverse engineering for interoperability and Allows reverse engineering for interoperability and computer security researchcomputer security research
Intermediary Liability (and safe harbors)Intermediary Liability (and safe harbors) ISPsISPs
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Copyright Law: DMCACopyright Law: DMCA(cont.)(cont.)
Universal v. Reimerdes Universal v. Reimerdes (2000)(2000) first test of the DMCAfirst test of the DMCA Universal sued three new York men who made Universal sued three new York men who made
DeCSS DeCSS (a reverse engineering tool for overriding (a reverse engineering tool for overriding DVD protections) available on their websitesDVD protections) available on their websites
The men claimed The men claimed DeCSS DeCSS has a fair use has a fair use (interoperability)(interoperability)
Court rulingCourt ruling DeCSS DeCSS violated the DMCAviolated the DMCA The individuals were forced to take The individuals were forced to take DeCSSDeCSS off their off their
sitessites How can you protect fair use? How can you protect fair use?
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Copyright Law: DMCACopyright Law: DMCA(cont.)(cont.)
The The Napster Napster casecase Dec 1999 – RIAA sues Napster for $100,000 per Dec 1999 – RIAA sues Napster for $100,000 per
copied song and claims that 90% of files copied copied song and claims that 90% of files copied via Napster violate record label copyrightsvia Napster violate record label copyrights
DefenseDefense Safe harbor under DMCASafe harbor under DMCA Some works were not copyrighted Some works were not copyrighted Fair use (sampling, space-shifting) Fair use (sampling, space-shifting) Permissive distributionPermissive distribution
Court rulingCourt ruling Rejected Napster’s argumentsRejected Napster’s arguments Napster had an adverse impact on the market for CDs, Napster had an adverse impact on the market for CDs,
especially among college studentsespecially among college students Pay creators and copyright owners a $26 million Pay creators and copyright owners a $26 million
settlement for past, unauthorized uses of music, and an settlement for past, unauthorized uses of music, and an advance against future licensing royalties of $10 advance against future licensing royalties of $10 million. million.
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Copyright Law: DMCACopyright Law: DMCA(cont.)(cont.)
MGM Studios v. GroksterMGM Studios v. Grokster Ruling led to a Ruling led to a controversial new testcontroversial new test to to
determine if software is protected by determine if software is protected by SonySony ruling ruling It has to be shown that the distributors of It has to be shown that the distributors of
the program have advertised and/or the program have advertised and/or otherwise induced it use for copyright otherwise induced it use for copyright infringementinfringement
Grokster forced to pay $50 million to Grokster forced to pay $50 million to the music and recording industriesthe music and recording industries
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Digital Rights Digital Rights ArchitectureArchitecture
Trusted systemsTrusted systems Digital Rights Management SystemsDigital Rights Management Systems
How do you ensure fair use?How do you ensure fair use? How do critics, scholars, and teachers How do critics, scholars, and teachers
access material?access material? Is there an invasion of privacy as Is there an invasion of privacy as
creators track what we read, use, etc. creators track what we read, use, etc. with the trusted systemswith the trusted systems
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TrademarksTrademarks
DefinitionDefinition Anything that enables a customer to differentiate Anything that enables a customer to differentiate
one company’s product from another’sone company’s product from another’s Word, phrase, symbol, graphic, soundWord, phrase, symbol, graphic, sound Law prevents the use of a mark or a confusingly Law prevents the use of a mark or a confusingly
similar marksimilar mark Exceptions for fair use and parodiesExceptions for fair use and parodies
Trademark Court CasesTrademark Court Cases Universal v. NintendoUniversal v. Nintendo (1984) (1984)
the Donkey Kong casethe Donkey Kong case Hasboro v. Internet Entertainment Group Hasboro v. Internet Entertainment Group (1996)(1996)
the Candyland casethe Candyland case
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Domain NamesDomain Names
Assigning domain namesAssigning domain names Pre-1999 Pre-1999 Network Solutions Inc. Network Solutions Inc. Post-1999 Post-1999 Internet Corporation for Internet Corporation for
Assigned Names and Numbers (ICANN)Assigned Names and Numbers (ICANN) What domain names can’t you use – What domain names can’t you use –
Free Speech issues?Free Speech issues? Scientology-kills.net (OK)Scientology-kills.net (OK)
Does not deceive and expresses an opinionDoes not deceive and expresses an opinion Jews-for-Jesus.com (not OK)Jews-for-Jesus.com (not OK)
Does deceive and tries to intercept those Does deceive and tries to intercept those thinking of convertingthinking of converting
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LinkingLinking
Ticketmaster v. MicrosoftTicketmaster v. Microsoft (1997) (1997) Can you link to anything any way you want?Can you link to anything any way you want? Linking rules:Linking rules:
avoid linking to sites that prohibit itavoid linking to sites that prohibit it Link in the way requested by the linked siteLink in the way requested by the linked site Have a familiarity with the content of the linked Have a familiarity with the content of the linked
sitesite Avoid impression that a link implies an Avoid impression that a link implies an
endorsement in any way of one’s own product or endorsement in any way of one’s own product or servicesservices
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Open SourceOpen Source
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Optimal ProtectionOptimal Protection
What does a good protection policy What does a good protection policy for software products look like?for software products look like? This is a good research question – This is a good research question –
optimal mix of copyright, patent, trade optimal mix of copyright, patent, trade secret, open source, digital rights secret, open source, digital rights managementmanagement
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Midterm Exam OverviewMidterm Exam Overview IT value (Class 2)IT value (Class 2)
Slides 21 – 26Slides 21 – 26 Product category (digital good vs. physical good)Product category (digital good vs. physical good) Market structure (monopoly vs. competition)Market structure (monopoly vs. competition) Type of IT (design tool vs. production tool)Type of IT (design tool vs. production tool)
Newly Vulnerable Markets (Class 3)Newly Vulnerable Markets (Class 3) Slides 4 and 18Slides 4 and 18 Easy to enter, attractive to attack, and difficult Easy to enter, attractive to attack, and difficult
to defendto defend The case of Capital One FinancialThe case of Capital One Financial
what happened? why did it happen? can it keep what happened? why did it happen? can it keep happening? where else can it happen?happening? where else can it happen?
Recording industry, Newspaper industryRecording industry, Newspaper industry
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Midterm Exam OverviewMidterm Exam Overview
Information Privacy (Class 4)Information Privacy (Class 4) Compare and contrast European and United Compare and contrast European and United
States approaches to consumer privacyStates approaches to consumer privacy How would you write a website’s privacy policy?How would you write a website’s privacy policy?
FTC Consumer Fair Information PracticesFTC Consumer Fair Information Practices Notice, choice, integrity, access, enforcement, Notice, choice, integrity, access, enforcement,
accountabilityaccountability Privacy seal programsPrivacy seal programs P3PP3P Privacy norms (industry) vs. privacy policies (firm) Privacy norms (industry) vs. privacy policies (firm)
vs. law (govt) vs. technology and education vs. law (govt) vs. technology and education (consumer)(consumer)
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Midterm Exam OverviewMidterm Exam Overview IT Safety and Reliability (Class 5)IT Safety and Reliability (Class 5)
Review the Killer Robot case (Slides 3-4)Review the Killer Robot case (Slides 3-4) IT roles and responsibilitiesIT roles and responsibilities (slides 14 -19) (slides 14 -19)
Intellectual Property (Classes 6)Intellectual Property (Classes 6) Copyright vs. Patents vs. Trade Secret Copyright vs. Patents vs. Trade Secret
(Slides 2-11)(Slides 2-11) Definitions, compare and contrast Definitions, compare and contrast see Slide 2 of this class (Class 7)see Slide 2 of this class (Class 7)
PatentsPatents Know the Patent Outcome Region (POR) and be Know the Patent Outcome Region (POR) and be
able to discuss Figures 1a, 1b, and 2 – compare able to discuss Figures 1a, 1b, and 2 – compare POR areas with Market Outcome (MO)POR areas with Market Outcome (MO)
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Midterm Exam OverviewMidterm Exam Overview
Intellectual Property (Class 7)Intellectual Property (Class 7) CopyrightCopyright
Fair use doctrine (related court cases)Fair use doctrine (related court cases) Digital Millenium Copyright Act (related court Digital Millenium Copyright Act (related court
cases)cases) TrademarkTrademark
DefinitionDefinition I must say that I like the I must say that I like the Donkey Kong Donkey Kong court court
casecase Do these protections provide incentive for Do these protections provide incentive for
innovation or stifle innovation?innovation or stifle innovation?