Intellectual Property

any unique product of the human intellect that has commercial value [7]. Examples of intellectual property are books, songs, movies, paintings, inventions, chemical formulas, and computer programs. distinguish between intellectual property and its physical manifestation in some medium. If a poet composes a new poem, for example, the poem itself is the intellectual property, not the piece of paper on which the poem is printed.

John Locke (1632-1704) developed an influential theory of property rights. In The Second Treatise of Government, Locke makes the following case for a natural right to property. Locke's description of a natural right to property is most useful at explaining how virtually unlimited resources are initially appropriated. It

However, since Locke was talking about the ownership of physical objects and we are talking about the ownership of ideas, we must resort to an analogy. We'll compare creating a piece of intellectual property to making a belt buckle [9]. In order to make a belt buckle, a person must mine ore, smelt it down, and cast it. To write a play, a playwright "mines" words from the English language, "smelts" them into stirring prose, and "casts" them into a finished play. First, every intellectual property is one-of-a-kind. Second, copying a piece of intellectual property is different from stealing a physical object.

a society may choose to grant intellectual property rights to people because of the beneficial consequences Article I, Section 8, of the U.S. Constitution gives Congress the power to "promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Hence there is a tension between the need to reward the creators of intellectual property by giving them exclusive rights to their ideas and the need to disseminate these ideas as widely as possible. Congress has traditionally addressed this tension is through a compromise. It has granted authors and inventors exclusive rights to their writings and discoveries, but only for a limited period of time At the end of that time period, the intellectual property enters the public domain

Today, there are four different ways in which individuals and organizations protect their intellectual property: trade secrets, patents, copyrights, and trademarks/service marks.

confidential piece of intellectual property that provides a company with a competitive advantage The right of a company to protect its trade secrets is widely recognized by governments around the world. In order to maintain its rights to a trade secret, a company must take active measures to keep it from being discovered An advantage of trade secrets is that they do not expire. A company never has to disclose a trade secret

word, symbol, picture, sound, or color used by a business to identify goods.

mark identifying a service

By granting a trademark or service mark, a government gives a company the right to use it and the right to prevent other companies from using it. Through the use of a trademark, a company can establish a "brand name." When a company is the first to market a distinctive product, it runs the risk that its brand name will become a common noun used to describe any similar product. When this happens, the company may lose its right to exclusive use of the brand name. Some trademarks that have become generic are "yo yo," "aspirin," "escalator," "thermos," and "brassiere." Companies strive to ensure their marks are used as adjectives rather than nouns or verbs

A patent is a way the U.S. government provides an inventor with an exclusive right to a piece of intellectual property. patent is a public document that provides a detailed description of the invention. The owner of the patent can prevent others from making, using, or selling the invention for the lifetime of the patent, which is currently 20 years. After the patent expires, anyone has the right to make use of its ideas.

Kodak had infringed on seven of Polaroid's original ten patents; six years later Kodak paid Polaroid a $925 million settlement

copyright is how the U.S. government provides authors with certain rights to original works that they have written. The owner of a copyright has five principal rights: 1. The right to reproduce the copyrighted work 2. The right to distribute copies of the work to the public 3. The right to display copies of the work in public 4. The right to perform the work in public 5. The right to produce new works derived from the copyrighted work Copyright owners have the right to authorize others to exercise these five rights with respect to their works.

Since he had not profited from his actions, he had not violated copyright law. To close this legal loophole, Congress passed the No Electronic Theft Act of 1997, which made it a criminal offense simply to reproduce or distribute more than $1,000 worth of copyrighted material in a six-month period

The government and groups representing the entertainment industry, including The Walt Disney Co., the Motion Picture Association of America, and the Recording Industry Association of America, argued that Congress does have the Constitutional authority to extend the terms of existing copyrights [31].

The right given to a copyright owner to reproduce a work is a limited right. Under some circumstances, called fair use it is legal to reproduce a copyrighted work without the permission of the copyright holder. Examples of fair use include citing short excerpts from copyrighted works for the purpose of teaching, scholarship, research, criticism, commentary, and news reporting.

The United States Copyright Act does not precisely list the kinds of copying that are fair use. Instead, what is considered to be fair use has been determined by the judicial system. 1. What is the purpose and character of the use? An educational use is more likely to be permissible than a commercial use. 2. What is the nature of the work being copied? Use of nonfiction is more likely to be permissible than use of fiction. Published works are preferred over unpublished works. 3. How much of the copyrighted work is being used? Brief excerpts are more likely to be permissible than entire chapters. 4. How will this use affect the market for the copyrighted work? Use of out-of-print material is more likely to be permissible than use of a readily available work. A spontaneously chosen selection is better than an assigned reading in the course syllabus.

that time shifting television programs is a fair use of the copyrighted materials [35]. It said that the private, noncommercial use of copyrighted materials ought to be presumed fair use unless it could be shown that the copyright holder would be likely to suffer economic harm from the consumer's actions

Someone with a digital recording device can copy a CD perfectly because it encodes music digitally—as a stream of ones and zeroes. When consumers didn't have access to digital recording devices, that wasn't a problem, but in the mid-1980s, Sony began selling digital audio tape (DAT) recorders in Japan and Europe

the Audio Home Recording Act requires manufacturers of digital audio recorders to incorporate the Serial Copyright Management System (SCMS). The SCMS allows a consumer to make a digital copy from the original recording, but it prevents someone from making a copy of the copy.

affirmed that space shifting, or copying a recording in order to make it portable, is fair use and entirely consistent with copyright law (Figure 4.7).

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1. Readers in the United States would have much easier access to millions of copyrighted books, including millions of books that are out-of-print, by allowing readers to search through them and preview them online. 2. The market for copyrighted books in the United States would grow by offering Google Books users the opportunity to purchase online access to them. 3. People would gain online access to out-of-print books at designated computers in U.S. public libraries and university libraries. 4. U.S. colleges and universities would have the opportunity to purchase subscriptions that would enable their students to gain online access to the collections of some of the world's greatest libraries. 5. Authors and publishers would receive payments earned from the online access of their books, fees paid when people printed pages from their books, and advertising revenues. As part of the settlement

The primary purpose of the DMCA was to bring the United States into compliance with international copyright agreements it had signed [34]. Provisions in the DMCA significantly curtail fair use of copyrighted material. The DMCA makes it illegal for consumers to circumvent encryption schemes placed on digital media, and it is illegal to sell (or even discuss online) a software program designed to circumvent copy controls [48].

Digital rights management (DRM) can refer to any of a variety of actions owners of intellectual property may take to protect their rights. As Christopher May puts it, "All DRM technologies are aimed at tracking and controlling the use of content once it has entered the market"

DRM restrictions sometimes prevent libraries from reformatting materials to make them more accessible to persons with disabilities. In addition, DRM protections, unlike copyrights, never expire [65]. Finally, some DRM schemes prevent people from anonymously accessing content.

A year later, Amazon became the first online music store to reach an agreement with all four major labels to sell music free of DRM restrictions [68]. Apple followed suit in 2009 with an announcement that it, too, had reached an agreement with all the major music labels to sell music without DRM restrictions [69]

peer-to-peer refers to a transient network allowing computers running the same networking program to connect with each other and access files stored on each other's hard drives (

submitted computer programs to be registered, reasoning that a computer program is like a "how-to" book. The Copyright Act of 1976 explicitly recognizes that software can be copyrighted. Second, copyright usually protects the object (executable) program, not the source program. Typically, the source code to a program is confidential, in other words, a trade secret of the enterprise that developed

The holder of a copyright has a right to control the distribution of the copyrighted material. Obviously, this includes making copies of the program However, doing any of the following actions without authorization of the copyright holder is a violation of copyright law: 1. Copying a program onto a CD to give or sell to someone else 2. Preloading a program onto the hard disk of a computer being sold 3. Distributing a program over the Internet

The U.S. Court of Appeals for the Third Circuit ruled in favor of Apple Computer, establishing that object programs are copyrightable

Video game-maker Accolade wanted to port some of its games to the Sega Genesis console. Sega did not make available a technical specification for the Genesis console, so Accolade disassembled the object code of a Sega game in order to determine how to interface a video game with the game console

The court ruled that the software was patentable because the numbers being manipulated by the computer program represented concrete values in the real world. Further court rulings reinforced the idea that computer software and data structures could be patented in the United States [104].

Some companies specialize in holding patents and licensing the rights to use these patents. Patent-holding companies aggressively use the courts to enforce their patent rights;

. The copyright system was designed for an era in which it was difficult to create copies. Digital technology has made copying trivial. In order to enforce copyrights in the digital age, increasingly harsh measures are being taken. These measures infringe on our liberties. . The purpose of the copyright system is to promote progress, not to make authors wealthy. Copyrights are not promoting progress in the computer software field. . It is wrong to allow someone to "own" a piece of intellectual property. Granting someone this ownership forces the users of a piece of intellectual property to choose between respecting ownership rights and helping their friends.When this happens,the correct action is clear. If a friend asks you for a copy of a proprietary program, you would be wrong to refuse your friend. "Cooperation is more important than copyright" [113].

the philosophical position that source code to software ought to be freely distributed and that people should be encouraged to examine and improve each other's code. The open-source software movement promotes a cooperative model of software development.

alternative way of distributing software. Licenses for open-source programs have the following key characteristics (there are others) [114]: 1. There are no restrictions preventing others from selling or giving away the software. 2. The source code to the program must be included in the distribution or easily available by other means (such as downloadable from the Internet). 3. 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. 4. There are no restrictions regarding how people can use the software. 5. These rights apply to everyone receiving redistributions of the software without the need for additional licensing agreements. 6. The license cannot put restrictions on other software that is part of the same distribution. For example, a program's open-source license cannot require all of the other programs on the CD to be open source.

The first benefit of open source is that it gives everyone using a program the opportunity to improve it. Rapid evolution of open-source software leads to the second benefit: new versions of open-source programs appear much more frequently than new versions of commercial programs. A third benefit of open source is that it eliminates the tension between obeying copyright law and helping others The fourth benefit is that open-source programs are the property of the entire user community, not just a single vendor. The fifth benefit of open source is that it shifts the focus from manufacturing to service, which can result in customers getting better support for their software [115].

First, if a particular open-source project does not attract a critical mass of developers, the overall quality of the software can be poor [115]. Second, without an "owner," there is always the possibility that different groups of users will independently make enhancements to a software product that are incompatible with each other. Third, open-source software as a whole tends to have a relatively weak graphical user interface, making it harder to use than commercial software products. This Fourth, open source is a poor mechanism for stimulating innovation. Currently, corporations invest billions of dollars developing new software products. By