Introduction to intellectual property

law
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with acknowledgements to Hal Abelson,
Randy Davis and Jonathan Zittrain
Biased
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.
- Thomas J efferson
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.
- Thomas J efferson
Non-exclusionary
Non-rivalrous
The eighteenth century imagined the Republic of
Letters as a realm with no police, no
boundaries, and no inequalities other than those
determined by talent. Anyone could join it by
exercising the two main attributes of citizenship,
writing and reading. Writers formulated ideas,
and readers judged them. Thanks to the power
of the printed word, the judgments spread in
widening circles, and the strongest arguments
won.
- Robert Darnton
Three basic means of protecting
intellectual property
Trade secret
Patent
Copyright

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Trade secret
Definition
Any information that
provides a competitive advantage
is kept secret
Limits
Essentially none; unlimited lifetime
Abridged by
Stealing the information
Unauthorized passing on
Legally avoided by
Independent discovery
Emergence into the public domain
Reverse engineering
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The Fundamental Mechanism: A Time-limited
Monopoly

US Constitution, Article 1, 8:
The Congress shall have the power
To promote the Progress of Science and the
Useful Arts, by securing for limited Times
to authors and inventors the exclusive
Right to their respective Writings and
Discoveries.
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The Fundamental Mechanism: A Time-limited
Monopoly

US Constitution, Article 1, 8:
The Congress shall have the power
To promote the Progress of Science and the
Useful Arts, by securing for limited Times
to authors and inventors the exclusive
Right to their respective Writings and
Discoveries.
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Patent basics
Definition
Application of an idea to create something novel, useful, and non-obvious
(prior art)
Machines, processes, new forms of matter
Covers only the claims specified
Provides the right to exclude others from making, selling, using
Requires adequate disclosure
Limits
20 years from date of filing
Excludes: math formulas, natural laws, mental steps
Obtained by:
Application to US PTO; expensive, claims examined
Can be challenged later
Abridged by: Any use of application
Avoided by: Careful search

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Copyright on one slide
Covers
Original work of authorship, fixed in a tangible medium
Covers entire work
Gives the author the following exclusive rights
To reproduce the work
To prepare derivative works
To distribute the work
To perform and display the work publicly
Lasts for the life of the author + 70 yrs, or 95 yrs from publication (for a
corporation)
Automatic since 1978 works are born copyright
Ignorance is no defense against copyright infringement. (Copyright is a strict
liability regime.)
Abridged by: copying (literal and non-literal)
Legally avoided by: independent creation
The details are complicated (about 250 pages in the US Legal Code)
Access + similarity => infringement

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Insufficient originality
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Sufficient originality
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Derivative work
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Fair Use

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While the Lexicon, in its current state, is not a fair use of the
Harry Potter works, reference works that share the Lexicon's
purpose of aiding readers of literature generally should be
encouraged rather than stifled.

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http://www.utsystem.edu/ogc/intellectualproperty/lectures.htm
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30 February 25, 2010
The Fundamental Mechanism: A Time-limited
Monopoly

US Constitution, Article 1, 8:
The Congress shall have the power
To promote the Progress of Science and the
Useful Arts, by securing for limited Times
to authors and inventors the exclusive
Right to their respective Writings and
Discoveries.
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Increasing duration of copyright
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1928+75=2003
1928+95=2023
http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/publicdomain/HedenkampF
reeMickeyMouseVaSp&E(2003).htm#Document2zzFN_B14
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More on copyright - limitations
First sale doctrine
Fair use defense
Consider
Nature of the use
Nature of the work
Amount of the work used
Impact on potential market for the work
...




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The Internet
Disrupts Business Models Based on
Scarcity
Disrupts Quality Control Based on Cost
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I say to you that the VCR is to the
American film producer and the
American public as the Boston strangler
is to the woman home alone.
MPAA head Jack Valenti to US
Congress, 1982
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A Dream or a Nightmare?

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Judge Denny Chin
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Problems with the settlement
Creates de facto monopoly (and also de
jure)
Google, not competition, sets prices
Orphan works should be in the public
domain

a library or an employee or agent of a
library shall not release or disclose a
library record or portion of a library
record to a person without the written
consent of the person liable for payment
for or return of the materials identified in
that library record (Michigan law
309.603.3.2)
44 March 15, 2010
45 March 15, 2010
What May Not be
Disclosed In a Library
Must Be Disclosed in
the Digital Library
46 February 25, 2010

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Patents and Copyrights
COPYRIGHT PATENT

Scope all of work

specific claims
Disclosure avoidable

unavoidable
Standard originality

novelty
Infringement
avoided by
independent
creation
licensing

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Even more on copyright Types of infringement
Direct infringement
Contributory infringement
There has been a direct infringement by someone
The accused contributory infringer knew or should have
known about the underlying direct infringement
The accused contributory infringer induced, caused, or
materially contributed to the underlying direct
infringement
Vicarious infringement
There has been a direct infringement by someone
The accused vicarious infringer had the right or ability to
control or supervise the inderlying direct infringement
The accused contributory infringer derived a direct
financial benefit from the underlying direct infringement

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source
the cloud
destination
internet
service
providers
internet service providers
regulation
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The Universal Declaration of Human
Rights (December 10, 1948)
Article 19. Everyone has the right to freedom
of opinion and expression; this right includes
freedom to hold opinions without interference
and to seek, receive and impart information
and ideas through any media and regardless
of frontiers.
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The Universal Declaration of Human
Rights (December 10, 1948)
Article 27.(1) Everyone has the right freely to
participate in the cultural life of the
community, to enjoy the arts and to share in
scientific advancement and its benefits.
(2) Everyone has the right to the protection of
the moral and material interests resulting
from any scientific, literary or artistic
production of which he is the author.
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