Introductory Lecture on IP

Intellectual Property Elisabeth Jones, Michael Eisenberg, Adam Moore INFO 200, Winter 2009 Image from: 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: Assign roles: Music Consumer AIDS drugs Creator Television Host (system) Big6 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 all 7 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 There was a 1976 Copyright Act: picture of Mickey Mouse here, but I § 102: (a) Copyright didn’t want to be protection subsists, in sued (or C&D’ed) accordance with this by Disney, so I title, in original removed it for the works of authorship Web. fixed in any tangible medium of expression 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 software 14 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 Distinction You cannot copyright an idea, only your expression of it “Limited” Duration In 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 Sale Once 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 use Nature of the copyrighted work Amount and substantiality of the portion taken Effect of the use upon the potential market for the original Image by Shepard Fairey, available, among other places, at http:// 17 of 32 creativebits.org/files/Shepard_Fairey_obama-poster.jpg.

Orphan Works Orphan works are copyrighted works whose owner cannot be located Some ways a work can be “orphaned:” The owner did not register the work The 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 emerges So 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/ow 18 of 32 Image from http://www.jerrybrito.com/2008/04/25/new-orphan-works-bills-introduced/

The Digital Millennium Copyright Act (DMCA) Huge piece of legislation, 1998 Two provisions are especially important for Informatics: Safe Harbor Anti-Circumvention The Copyright Office accepts applications for exemptions from anti- circumvention provisions every 3 yrs (next=2009!) 19 of 32 Image from http://xkcd.com/488/

Creative Commons Provides easy-to- understand licenses, so that you can share your work on terms that you choose Fewer restrictions than traditional copyright Comic from http:// wiki.creativecommons.org /Howitworks_Comic1 20 of 32

Patent Protects useful, new ideas Grants \"the right to exclude others from making, using or selling the invention throughout the United States\" for 20 years Broader in scope, but more limited in duration than copyright Image from: http://tothewire.wordpress.com/2009/01/29/caveman-and-electricity/# 21 of 32

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 22 of 32 From Jaffe & Lerner 2004: 27

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

Trademark Prevent consumer confusion Trademarks “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 32 Image from: 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 Secret Protects secrets that give companies competitive advantage Almost 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 32 Image from: 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 NYPL Scanning all the books! For all but Michigan, just public domain books, for the time being Providing digital copies to the source libraries 28 of 32

The Google Books Library Project 2006: The Authors Guild & the Association of American Publishers sued Google for copyright infringement Google 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

The Google Books Library Project 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

Summary 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 31 of 32

The End! Lolcat via http:// The images in this presentation do not fall under this license www.istartedsomething.com/20071121/ - they have been used without permission (fairly, I believe). a-team-cease-desist-zegoe/

Introductory Lecture on IP

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