introductory lecture on ip

Intellectual PropertyElisabeth Jones, Michael Eisenberg, Adam Moore

INFO 200, Winter 2009Image from: http://xkcd.com/14/

http://xkcd.com/14/

http://xkcd.com/14/

Why Do We Have Intellectual Property?

2 of 32

Why Do We Have Intellectual Property?

Incentive for innovation

Protect artists and inventors

Stimulate the economy

Create wealth

2 of 32

In Groups of 4...Pick a case:

Music

AIDS drugs

Television

Big6

Assign roles:

Consumer

Creator

Host (system)

Host (publisher)

Answer Two Questions:1. Are intellectual property rights justified? (copyright or patent)2. Who is responsible for enforcing IP?

3 of 32

Means vs. Ends (1)U.S. Constitution, Article I, Section 8

Congress shall have the right...

“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.”

4 of 32

Means vs. Ends (2)

End: “To promote the Progress of Science and useful Arts”

Means: “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

Not the other way around!

5 of 32

So, Again: Why IP?

To create an incentive for innovation

IP is a mechanism, not an end in itself

Are there other ways to encourage innovation?

What makes you want to make things?

6 of 32

Putting the “I” in IP(it’s different from physical property)

Tangibility: Physical property is just that - physical. IP doesn’t give you control over any physical item.

Excludability: If I own a physical thing, I have the right to prevent others from using it, period. For IP, depending on the type, I may not have that right at all, or it may be more limited. Plus, once an idea is out, there’s no putting it back.

Non-rivalrous: If I steal your physical property, you can’t use it anymore - it’s “rivalrous”; if I steal your idea, though, you can go on using it.

Zero-Sum: Builds on non-rivalrousness - physical property is zero-sum, IP tends not to be

The Commons: A pool of items available for use by all7 of 32

Thomas Jefferson, 1813“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

8 of 32

Thomas Jefferson, 1813

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it....”

9 of 32

Thomas Jefferson, 1813

“...Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

10 of 32

So how is downloading an album illegally different from stealing a CD from a store? (Is it?)

?=11 of 32

Four Types of IP

12 of 32

Four Types of IP

Copyright

Patent

Trademark

Trade Secret

12 of 32

Copyright

Protects Expression

1976 Copyright Act:

§ 102: (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression

There was a picture of Mickey Mouse here, but I didn’t want to be sued (or C&D’ed) by Disney, so I

removed it for the Web.

13 of 32

Copyright Covers...Literary works

Musical works, including any accompanying words

Dramatic works, including any accompanying music

Choreographic works and pantomimes

Pictorial, graphic, and sculptural works

Motion pictures and other audiovisual works

Sound recordings

Architectural works

Computer software14 of 32

Copyright Grants Five Exclusive Rights

Right to reproduce

Right to adapt the work or derive other works

Right to distribute copies

Right to display the work publicly

Right to perform the work publicly

15 of 32

Copyright is also Restricted

Idea/Expression DistinctionYou cannot copyright an idea, only your expression of it

“Limited” DurationIn the U.S., copyright expires 70 years after the author’s death, or after 95 years for corporate copyright holders (at least in theory)

First SaleOnce you purchase an expressive work, you have the right to resell it without permission (again, at least in theory)

Fair Use...16 of 32

Fair Use(The Public Has Rights Too!)

Judges consider 4 factors in considering whether an otherwise infringing use is “fair:”Purpose and character of the useNature of the copyrighted workAmount and substantiality of the portion takenEffect of the use upon the potential market for the original

17 of 32Image by Shepard Fairey, available, among other places, at http://creativebits.org/files/Shepard_Fairey_obama-poster.jpg.

http://creativebits.org/files/Shepard_Fairey_obama-poster.jpg




Orphan WorksOrphan works are copyrighted works whose owner cannot be located Some ways a work can be “orphaned:”

The owner did not register the workThe owner sold rights in the work and did not register the transfer The owner died and his heirs cannot be found

Creates problems for reuse: risks having to pay huge damages if an owner emergesSo how do we balance the rights of the original creators with the needs of those who wish to build upon their work?

Definition from Public Knowledge, http://www.publicknowledge.org/issues/owImage from http://www.jerrybrito.com/2008/04/25/new-orphan-works-bills-introduced/ 18 of 32

http://www.publicknowledge.org/issues/ow

http://www.publicknowledge.org/issues/ow

http://www.jerrybrito.com/2008/04/25/new-orphan-works-bills-introduced/

http://www.jerrybrito.com/2008/04/25/new-orphan-works-bills-introduced/

The Digital Millennium Copyright Act (DMCA)

Huge piece of legislation, 1998Two provisions are especially important for Informatics:Safe HarborAnti-CircumventionThe Copyright Office accepts applications for exemptions from anti-circumvention provisions every 3 yrs (next=2009!)

19 of 32Image from http://xkcd.com/488/

http://xkcd.com/488/

http://xkcd.com/488/

Provides easy-to-understand licenses, so that you can share your work on terms that you choose

Fewer restrictions than traditional copyright

Creative Commons

20 of 32

Comic from http://wiki.creativecommons.org/Howitworks_Comic1

http://wiki.creativecommons.org/Howitworks_Comic1






PatentProtects useful, new ideasGrants "the right to exclude others from making, using or selling the invention throughout the United States" for 20 yearsBroader in scope, but more limited in duration than copyright

21 of 32Image from: http://tothewire.wordpress.com/2009/01/29/caveman-and-electricity/#

http://tothewire.wordpress.com/2009/01/29/caveman-and-electricity/#

http://tothewire.wordpress.com/2009/01/29/caveman-and-electricity/#

Patent Covers...A Process, such as a new approach to brewing beer or to depositing circuits on silicon

An Article of Manufacture, such as a kit to identify an infectious disease or a machine, such as a new machine tool

A Composition of Matter, such as a novel type of concrete or a new molecule

New & Useful Improvements of the Above

Any Distinct and New Variety of Plant that is Asexually Reproduced

Any New, Original, and Ornamental Design for an article of manufacture

From Jaffe & Lerner 2004: 27 22 of 32

A Patent Application Must Pass 3 Tests

Utility

Novelty

Non-Obviousness

23 of 32

A Few Patent Issues

Frivolous Patents

Patent Trolling

Chilling Effects

24 of 32

TrademarkPrevent consumer confusionTrademarks “protect words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods” (USPTO)

25 of 32Image from: http://www.battletrade.com/images/view/10/trademarksjpg.html

http://www.battletrade.com/images/view/10/trademarksjpg.html

http://www.battletrade.com/images/view/10/trademarksjpg.html

Trademark

Can be renewed indefinitely

Must be protected

Explicitly deals with commerce, rather than ideas or expressions

26 of 32

Trade SecretProtects secrets that give companies competitive advantageAlmost unlimited in terms of content or subject matter that may be protected Typically relies on private measures, rather than state action, to preserve exclusivity

27 of 32Image from: http://www.mediabistro.com/agencyspy/brands/can_coke_survive_with_no_marketing_89637.asp

http://www.mediabistro.com/agencyspy/brands/can_coke_survive_with_no_marketing_89637.asp

http://www.mediabistro.com/agencyspy/brands/can_coke_survive_with_no_marketing_89637.asp

The Google Books Library Project

Initially, 5 Libraries: Harvard, Oxford, Michigan, Stanford, and the NYPLScanning all the books!For all but Michigan, just public domain books, for the time beingProviding digital copies to the source libraries

28 of 32


2006: The Authors Guild & the Association of American Publishers sued Google for copyright infringementGoogle claimed fair use

A lot of authors disagreed with the lawsuit

Others said the libraries had made a huge mistake in partnering with Google

Now there’s a settlement

29 of 32


What do you think?Does the project infringe copyrights?Did the libraries make a mistake?Should authors oppose the project? Should publishers?

30 of 32

IP exists to promote innovation; protecting authors is the mechanism it uses to do that

Copyright protects expression, not ideas

Fair use protects the public’s rights

Patent protects ideas, not expression

Trademarks prevent consumer confusion

Trade Secret protects information that can be used for competitive advantage

Summary

31 of 32

The End!The images in this presentation do not fall under this license - they have been used without permission (fairly, I believe).

Lolcat via http://www.istartedsomething.com/20071121/

a-team-cease-desist-zegoe/

introductory lecture on ip

Education