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Ps and Qs of IP, Privacy 
Policies and Open Source 
Software 
WordCamp Tampa 
October 4, 2014
Intellectual Property 
• Copyright 
– Expression of ideas 
• Trademarks 
– Source indicator- logos, phrases 
• Patents 
– ...
Copyright 
• Simple to invoke 
– Fixation in a tangible medium 
• Long period of protection 
– Life of author + 70 years-s...
Copyright 
• Registration is your best bet 
– Gives you advantages 
– Don’t mail it to yourself!!! 
• Registering software...
Copyright 
• Owner gets a bundle of rights 
– Reproduce work 
– Display it publicly 
– Make derivative works 
– Distribute...
DMCA-Digital Millennium Copyright Act 
• Covers sites where content is posted by 
others 
• Need copyright agent to receiv...
Copyright 
• Know who owns the work, get permission 
(license) 
• Get permission in writing 
• Don’t just rely on fair use...
Creative Commons 
• Variety of Licenses 
– Attribution 
– Attribution-Share Alike 
– Attribution-NoDerivs 
– Attribution-N...
Trademark 
• Source indicator for goods or services 
• Matter of federal, state law 
• Can include 
– Names, slogans 
– Lo...
Trademarks 
• Strongest protection- Federal registration 
• Done by class of goods or services 
• Can reserve mark prior t...
Trademark 
• Standard: Use in commerce 
– Strongest protection: federal registration 
• Factors for strength of mark: 
– G...
Trademark 
• New gTLDs 
– Concern for trademark owners 
– Over 1900 domains applied for with ICANN 
• .app, .blog, .book, ...
Privacy Policies 
• Why do we have 
privacy policies?
Privacy Policies 
• And people want to 
know what you’re 
doing with their data
Privacy Policies and ToS 
• …but let’s face it, most people just click 
‘accept’ and here’s why… 
Why We Just Click ‘Accep...
Species of Privacy Laws 
• Species of Privacy Laws 
– FERPA 
– HIPAA 
– COPPA 
– CALOPPA 
– Potpourri of State Privacy Law...
Terms of Service or Use/EULAs 
• Rules of the road 
• Govern what you can do 
– Hey, that’s my light saber! 
• Apps w/ ter...
COPPA 
• Children’s Online Privacy Protection Act 
(COPPA) (1998) 
– Prohibits operators of commercial websites 
and onlin...
COPPA 
– Notice required 
• Operators must tell parents what information is 
collected and how it is used, even if they co...
CALOPPA 
• California Online Privacy Protection Act 
• Requires all commercial operators of 
websites or online services c...
CALOPPA 
• New requirements- eff. Jan 1, 2015 
– “Delete button”: Require retailer to allow minor 
who is registered user ...
CALOPPA 
• Joint Statement of Principles 
– With major app platforms 
– Voluntarily agreed to 
• Provide consumers with op...
DMCA 
• Make sure you have a copyright agent 
• Register with the Copyright Office 
• Have a takedown/put back policy 
• F...
Best Practices 
• Keep it current 
• Revisit often 
• Keep it prominent 
• Should be living documents 
• Revise often, ada...
Open Source Software 
• Software where source code is available 
• Greater freedom to use, modify 
• Great variety in lice...
Open Source- Who is 
Licensing? 
• Author 
• Contributor 
• Distributor
Licensing Spectrum 
BSD/MIT CDDL/MPL GPL2/GPL3 
Less Restrictive/Wide Open More Restrictive/‘Militantly Open’
Terms to Consider 
1. Heredity 
2. Copyleft 
3. Linking 
4. Open source improvements 
5. Patent Grant 
6. Merging 
7. Dist...
License Terms- Permissive 
• Beer License 
– Can do what you want with source code 
• BSD 
– Have to use copyright notice ...
Hybrid Licenses 
• Usually revocable if you violate terms 
• Eclipse 
– Have to make source code available 
• MPL, CDDL 
–...
Restrictive/Copyleft Licenses 
• Keep software open source forever 
• GPL, LGPL 
• GPL2 
• GPL3 
• LGPL 
– Exceptions for ...
GPL 2 or Later 
• GPL 2 
– Strong copyleft 
– No linking 
– Can charge for object code, but must provide 
source code 
– H...
GPL 3 
• Major changes 
– Cannot use with digital rights management 
media 
– Adds hardware lock protection 
– Grant anyon...
Why Do the Licenses Matter? 
• Can affect 
– Products 
– Company 
– Finances 
• And everyone’s 
favorite….lawsuits!
Recent Litigation 
• Patent cases 
• Copyright cases 
– BusyBox software 
– Table Turner 
– Palm Pre
Best Practices 
• Know where every line of code came from 
• Know what the license says 
• Include required documentation ...
More Tips 
• Evaluate risk 
– Value versus risks 
• Be very, very responsive to claims 
• Audit and track your IP 
• Creat...
How Not to Provide Author Info 
• Don’t just include link to generic license 
• Have to provide the info to fill in the bl...
Questions? 
• Follow me on Twitter 
@punklawyer 
• @ChrissieScelsi
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WordCamp Talk 2014

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"Ps and Qs of IP, Privacy Policies and Open Source Software" presentation, given October 4, 2014 at WordCamp Tampa.

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WordCamp Talk 2014

  1. 1. Ps and Qs of IP, Privacy Policies and Open Source Software WordCamp Tampa October 4, 2014
  2. 2. Intellectual Property • Copyright – Expression of ideas • Trademarks – Source indicator- logos, phrases • Patents – Inventions, business methods
  3. 3. Copyright • Simple to invoke – Fixation in a tangible medium • Long period of protection – Life of author + 70 years-single author • Serious penalties – Criminal, fines of up to $250,000 per offense
  4. 4. Copyright • Registration is your best bet – Gives you advantages – Don’t mail it to yourself!!! • Registering software – First and last 25 pages of source code – Elements you want to protect, can include audiovisual elements
  5. 5. Copyright • Owner gets a bundle of rights – Reproduce work – Display it publicly – Make derivative works – Distribute copies – Perform the work- literary, dramatic works – Perform via digital transmission- sound recording
  6. 6. DMCA-Digital Millennium Copyright Act • Covers sites where content is posted by others • Need copyright agent to receive takedown notices, put back notices • Viacom v. YouTube – Upholds safe harbor protection for websites, puts responsibility to enforce rights on copyright owner instead
  7. 7. Copyright • Know who owns the work, get permission (license) • Get permission in writing • Don’t just rely on fair use • Pay attention to terms of use, licenses
  8. 8. Creative Commons • Variety of Licenses – Attribution – Attribution-Share Alike – Attribution-NoDerivs – Attribution-Non Commercial – Attribution-Non Commercial- Share Alike – Attribution-Non Commercial-No Derivs
  9. 9. Trademark • Source indicator for goods or services • Matter of federal, state law • Can include – Names, slogans – Logos – Colors – Scents – Sounds
  10. 10. Trademarks • Strongest protection- Federal registration • Done by class of goods or services • Can reserve mark prior to actual use through application • Test for infringement – Likelihood of confusion – Unauthorized use of mark
  11. 11. Trademark • Standard: Use in commerce – Strongest protection: federal registration • Factors for strength of mark: – Generic – Descriptive – Suggestive – Arbitrary or Fanciful
  12. 12. Trademark • New gTLDs – Concern for trademark owners – Over 1900 domains applied for with ICANN • .app, .blog, .book, .sucks, .rip • Applications being evaluated • Some going to contract soon – Trademark Clearinghouse • Will give TM owners opportunity to object to registrations for infringing domains
  13. 13. Privacy Policies • Why do we have privacy policies?
  14. 14. Privacy Policies • And people want to know what you’re doing with their data
  15. 15. Privacy Policies and ToS • …but let’s face it, most people just click ‘accept’ and here’s why… Why We Just Click ‘Accept’ Trying to make the update pop up go away So much tiny font… Just take me to my download already! Boring!
  16. 16. Species of Privacy Laws • Species of Privacy Laws – FERPA – HIPAA – COPPA – CALOPPA – Potpourri of State Privacy Laws – EU Data Privacy Laws – Cloud – Mobile Payments
  17. 17. Terms of Service or Use/EULAs • Rules of the road • Govern what you can do – Hey, that’s my light saber! • Apps w/ terms that conflict with the app they work with – i.e. SnapHack and Snapchat
  18. 18. COPPA • Children’s Online Privacy Protection Act (COPPA) (1998) – Prohibits operators of commercial websites and online services; – From collecting or disclosing personal information – Of minors under age 13; – Without verifiable parental consent
  19. 19. COPPA – Notice required • Operators must tell parents what information is collected and how it is used, even if they consent – Not just for Kids’ Sites • Applies to any site that collects birth date information from children • Many sites forbid registration if D.O.B. indicates user is under 13, to avoid COPPA problems • COPPA prohibits conditioning a child’s participation in a game, or the offering of a prize, on child disclosing “more personal information than is necessary” to participate
  20. 20. CALOPPA • California Online Privacy Protection Act • Requires all commercial operators of websites or online services conspicuously post privacy policies to inform consumers about – Categories of PII being collected and – With which 3rd parties the PII will be shared
  21. 21. CALOPPA • New requirements- eff. Jan 1, 2015 – “Delete button”: Require retailer to allow minor who is registered user to delete or request deletion of any content posted by the minor – Operators must provide minors with notice of ability delete online content and instructions – Operators prohibited from marketing or advertising certain categories of products or services to minors
  22. 22. CALOPPA • Joint Statement of Principles – With major app platforms – Voluntarily agreed to • Provide consumers with opportunity to review app’s privacy policy before downloading • Work to educate app developers about their privacy obligations, and • Develop tools for consumers to report non-compliant apps
  23. 23. DMCA • Make sure you have a copyright agent • Register with the Copyright Office • Have a takedown/put back policy • Follow it!
  24. 24. Best Practices • Keep it current • Revisit often • Keep it prominent • Should be living documents • Revise often, adapt to meet new needs • Monitor FTC rulings, developments • Be really careful about apps & kids • Protect the data you collect • Collect only as much data as you need
  25. 25. Open Source Software • Software where source code is available • Greater freedom to use, modify • Great variety in license terms, types • Can save you time, money • But what does that license say?
  26. 26. Open Source- Who is Licensing? • Author • Contributor • Distributor
  27. 27. Licensing Spectrum BSD/MIT CDDL/MPL GPL2/GPL3 Less Restrictive/Wide Open More Restrictive/‘Militantly Open’
  28. 28. Terms to Consider 1. Heredity 2. Copyleft 3. Linking 4. Open source improvements 5. Patent Grant 6. Merging 7. Distribution 8. Change tracking 9. Attribution 10. Hardware Locks
  29. 29. License Terms- Permissive • Beer License – Can do what you want with source code • BSD – Have to use copyright notice • MIT – More like a license grant • Apache – Patent grant, attribution requirement
  30. 30. Hybrid Licenses • Usually revocable if you violate terms • Eclipse – Have to make source code available • MPL, CDDL – Very popular – MPL requires new license for new contributions • Artistic License 2.0 • APL
  31. 31. Restrictive/Copyleft Licenses • Keep software open source forever • GPL, LGPL • GPL2 • GPL3 • LGPL – Exceptions for linking to use libraries
  32. 32. GPL 2 or Later • GPL 2 – Strong copyleft – No linking – Can charge for object code, but must provide source code – Have to give attribution – No hardware locks
  33. 33. GPL 3 • Major changes – Cannot use with digital rights management media – Adds hardware lock protection – Grant anyone using or modifying code license to use patents that protect algorithms in code – Can’t link to code w/ DMCA protections
  34. 34. Why Do the Licenses Matter? • Can affect – Products – Company – Finances • And everyone’s favorite….lawsuits!
  35. 35. Recent Litigation • Patent cases • Copyright cases – BusyBox software – Table Turner – Palm Pre
  36. 36. Best Practices • Know where every line of code came from • Know what the license says • Include required documentation • Know what will trigger the license • Cover open source issues in contracts with suppliers – Indemnities • Train your team
  37. 37. More Tips • Evaluate risk – Value versus risks • Be very, very responsive to claims • Audit and track your IP • Create policies and follow them • Document compliance efforts
  38. 38. How Not to Provide Author Info • Don’t just include link to generic license • Have to provide the info to fill in the blanks to help people comply
  39. 39. Questions? • Follow me on Twitter @punklawyer • @ChrissieScelsi

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