Introduction to intellectual property law April 22, 20091 with acknowledgements to Hal Abelson,...

Introduction to intellectual property law

April 22, 2009 1

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 Jefferson

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 Jefferson

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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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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April 17, 2009 Harvard Bits 16

© 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



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.

• http://www.utsystem.edu/ogc/intellectualproperty/lectures.htm


30February 25, 2010




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Increasing duration of copyright

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1928+75=20031928+95=2023

• http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/publicdomain/HedenkampFreeMickeyMouseVaSp&E(2003).htm#Document2zzFN_B14


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)

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45March 15, 2010

What May Not be Disclosed In a

LibraryMust Be Disclosed

in the Digital Library

46February 25, 2010

Patents and Copyrights

COPYRIGHT PATENT

Scope all of work

specific claims

Disclosure avoidable

unavoidable

Standard originality

novelty

Infringement avoided by

independent creation

licensing

April 22, 2009 49

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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sourcesource

the “cloud”the “cloud”

destinationdestinationinternetinternetserviceserviceprovidersproviders

internet service providersinternet service providers

regulation

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.


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.


Introduction to intellectual property law April 22, 20091 with acknowledgements to Hal Abelson,...

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