Intellectual Property: Copyrights, Trade Marks and Trade ...quigg/spring2010/Lectures/Lecture15.pdf · suits (also allows for damages plus legal fees) ... Playboy Enterprises Inc

Research Administration for Scientists

Tim Quigg, Associate Chair and LecturerComputer Science Department, UNC-Chapel Hill

Intellectual Property: Copyrights, Trade Marks and Trade Secrets

Research Administration for ScientistsCOMP 918

© Copyright 2010 Timothy L. Quigg All Rights Reserved


What is a copyright?

A right the government grants an author of an original work fixed in any tangible medium of expression to exclude others from copying or commercially using the work without approval.

Copyright Law




Copyright Law


What Rights are Conferred?

Reproduction – copying a work Distribution – distributing work publically Performance – performing work publically Display - displaying work publically to include

posting on web Sound Recording and Digital Audio Transmission

includes all mediums (present and future) Adaptation – preparing derivative works


What is a Derivative Work? Definition – an expressive creation that includes

major, copyright-protected elements of one or more pre-existing work; a work based upon one or more pre-existing work! (see Circular 14)

Includes translation, dramatization, motion picture version of a book, musical arrangement, dramatization, fictionalization, sound recording, art reproduction, abridgement, condensation, or any other form in which a work is recast, transformed or adapted.

For software, derivative works include original modifications to someone else’s code.


Can a Derivative Work be Copyrighted? If the copyright is still in effect on the original works,

permission to use the rights needs to be obtained. A copyright on the derivative work may be obtained

if it displays some originality of its own containing sufficient new expression.

It must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material.

The copyright only extends to the new material contributed by the author.


Case Law: Emphasis on Originality1991 – Feist Publications v. Rural Telephone

Service Co.

The U.S. Supreme Court found that the U.S. Constitution requires, for a work to receive copyright protection, it must reflect creative expression or originality. Thus, the compilation of a telephone directory by Feist was not an infringement even though it was compiled from the information in the Rural Telephone Service White Pages. The information in the white pages was not copyrightable because it comprised “comprehensive collection of facts arranged in conventional formats.”




Copyright Law


Copyright LawWho is an author?

One who originates a work

They are works created by multiple authors with the intent of being merged into inseparable or interdependent parts of a whole

How about joint works?


Copyright LawWho owns a copyright?

Ownership initially vests with the author

Co-authors are deemed tenants in common (each has undivided ownership, but must account to the other owners)

How about joint works?


Copyright LawWhat is standard university policy on

copyright ownership?

Ownership vests with the author – exceptionsmay occur when work was developed under sponsored research agreement

Frequently viewed as works made-for-hire, thus ownership is assigned to company in consulting agreement

How about external consulting agreements?


Copyright LawWho owns copyright for works made-

for-hire (1976 Copyright Act)?

An exception to the author ownership principle where the employer is considered the author. The work prepared is deemed within the scope of employment as if ordered or commissioned by the employer


Copyright LawWhat is the term of copyright protection? Life of author + 70 years Joint authors 70 years after the last surviving

author’s death

95 years from the date of publication or 120 years from the date of creation Whichever expires first!

Is it different for works made-for-hire?


Copyright LawWhen does a copyright go into effect? Common – at moment of creation Registered – with U.S. Copyright Office

(USCO) Helps to prove “first to create” in infringement

suits (also allows for damages plus legal fees) Copyright Notice –

Copyright 2010 Timothy L. QuiggAll Rights Reserved


“[TITLE of SOFTWARE]”

Copyright © [DATE], The University of North Carolina at Chapel Hill

All rights reserved. No part of this software may be sold or distributed in any form or by any means without the prior written permission of the Department of Computer Science, University of North Carolina at Chapel Hill. Distribution and use of this software is subject to the Software License Agreement [ incorporated in this software][set forth below]. By having, retaining or using a copy of this software, you agree to be subject to the terms of the Software License Agreement.

*******

Software License AgreementPermission is given to copy [“Name of Software”], and its files (“the Software”) and to use them locally, as long as foregoing Copyright Notice is not removed and the Software name is retained unaltered. By opening, possessing, retaining, using, or having a copy of the Software, you are deemed to have agreed to the terms of this Software License Agreement.

The Software is provided strictly on an "as is" basis without warranty of any kind. Neither the University of North Carolina at Chapel Hill, its faculty, staff or students, nor anyone else who has been involved in the creation, production or delivery of the Software shall be liable for any direct, indirect, consequential or incidental damages arising out of the use or inability to use the Software even if such entities or persons may be advised of the possibility of such damages.

No part of this software may be sold or distributed in any form or by any means without the prior written permission of the Department of Computer Science, University of North Carolina at Chapel Hill. Your use of the Software is limited to non-commercial, not-for-profit uses and activities. To secure permission to make any other use of the Software, you should contact the person named below.

Contact person:

______________, University of North Carolina at Chapel Hillemail: @cs.unc.eduphone:fax:


Copyright Law

Reproducing the work in copies (piracy) Preparing derivative works Distributing copies of the work to the public

for sale, rent, lease Displaying work publically In the case of sound recordings, performing

the work publically by means of digital audio transmission

What constitutes copyright infringement under the Copyright Law?


Copyright Law

Note: The Copyright Office is an “Office of Record” It is not charged with enforcement Send a “Notice of Infringement” letter to

offender If not corrected, file suit in federal court!

What can a copyright owner do when an infringement occurs?


Background - “My Sweet Lord” written and recorded by George Harrison in 1970 and “He’s So Fine” written by Ronald Mack and recorded by the Chiffons in 1962

Copyright infringement suit filed in 1971 by Bright Tunes Music Corp. (owner of HSF copyright)

Harrison’s offer of $148,000 to settle with him keeping copyright to MSL was rejected

“My Sweet Lord” – “He’s So Fine”


Judge found a highly unusual pattern of notes present in each song, with MSL making only small changes from HSF

Harrison’s attorneys acknowledged that no other example of this pattern could be found

Judge said it is “perfectly obvious that the 2 songs are virtually identical”

Harrison concedes he had heard HSF and that the tune could have been in his subconscious



Judge rules that MSL infringes HSF copyright

In opinion he says “infringement can be established when the 2nd work is substantially similar to the 1st and the second composer had access to the 1st work”

Harrison’s defense of “subconscious copying” was rejected



Remember: “intent to infringe” is not necessary to establish copyright infringement!



“The Florida Northern District Court held that Frena, an electronic bulletin board operator, had violated Playboy’s copyright when one of their photographs was digitized and placed on the bulletin board system by one subscriber and downloaded by another subscriber. According to the decision, “it does not matter that Defendant Frena may have been unaware of the copyright infringement. Intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather innocence is significant to a trial court when it fixes statutory damages, which is a remedy equitable in nature.”

Playboy Enterprises Inc. v. Frena -1993


1998 – 19 year old Shawn Fanning (nickname Napster), a college student at Northeastern University, developed a software application to search for MP3 files on line.

MP3’s – greatly compressed file size (12:1) and high sound quality, made them the preferred means to digitally transmit music files over internet

His peer-to-peer (P2P) file sharing technology allowed users to connect with each other and share individual files stored on their individual hard drives (without regard to copyright)

Recording Industry Association of America v. Napster - 2000


June 12, 2000 – RIAA files lawsuit against Napster for copyright infringement

February 12, 2001 – 9th Circuit Court of Appeals ruled Napster liable for both contributory and vicarious copyright infringement

2000 – Recording Industry Association of America v. Napster


It’s protected by copyright, so do you infringe when you sing it to your child?Background: melody written by Mildred and

Patty Hill in Kentucky with the first words being “Good Morning to You” and used in their kindergarten classroomThe “Happy Birthday” words first appeared in a

song book edited by Robert H. Coleman in 1924With the various extensions to the duration of

copyright that Congress has passed, the current protection extends through 2030

“Happy Birthday to You”


So do you owe royalties when you sing it to your child? It Depends!When performed in public or for commercial

gain, royalties are dueWhen sung at home – no royalties are due So, how about when you sing it at your child’s

party at a local restaurant?Technically yes, but the copyright owner (Harry

Fox Agency) says such infringements are “rarely prosecuted!

“Happy Birthday to You”

Thanks Harry!


“NEW YORK (KGUN9-TV/AP)- There is a lawsuit being filed through the federal court in New York City that will force Google to pay hundreds of millions of dollars in damages for various pictures and art the search engine has used in the digital library it is trying to construct.

The lawsuit is a copyright infringement case that was filed in court Wednesday by various groups that represented thousands of artists, graphic workers and photographers. The groups plan to get $150,000 for each work of art they believe was infringed upon.

The lawsuit adds to the controversy over whether or not Google should be allowed to take charge of the world's largest digital library.

Google Inc. states that they are positive they are compliant with U.S. and international copyright laws.”

April 7, 2010 – Copyright Infringement Suit Filed Against Google!


Legal threats from Facebook have led to the destruction of a social science dataset about to be released to researchers in February 2010.

Lawyers from the social networking site contacted Pete Warden, an entrepreneur based in Boulder, Colorado, in February after he announced plans to release data he had collected from the public profiles of 210 million Facebook users.

Warden says that Facebook threatened legal action if he did not delete the data. He duly destroyed all the records, saying he did not have the funds to contest a lawsuit.

Data Sifted from Facebook Wiped after Legal Threats

http://petewarden.typepad.com/�

http://petewarden.typepad.com/searchbrowser/2010/03/facebook-data-destruction.html�


Warden's records included a "social graph", a representation of all the friend connections between users in the dataset. This would have been a powerful research tool for social scientists and others interested in how people interact.

More than 50 researchers had requested copies of the dataset, says Warden, after he had blogged about making it available. He had already used the graph to show how the social connections of the 120 million US users his data covered were apparently concentrated in regional clusters.

Some researchers wanted to combine Warden's data with other sources, such as census records, to probe the link between factors such as income, mobility, employment and social connections.

Social Links

http://petewarden.typepad.com/searchbrowser/2010/02/how-to-split-up-the-us.html�


Warden obtained the data by writing "crawler" software that harvested information from Facebook profile pages which could be viewed without logging in to the site.

He gathered users' names, locations, friends and interests, but planned to remove names and use other anonymisation methods to prevent specific profiles being linked to individuals.

In compiling his data without seeking permission, Warden had violated the site's terms of service, said a Facebook spokesperson, adding: "Warden was extremely cooperative with Facebook from the moment we contacted him and he abandoned his plans."

So, how do you think the courts would have decided this case?

Crawling through Facebook


History of U.S. Copyright Law Can be traced to 15th century England and the introduction

of the Printing Press, U.S. copyright law has paralleled that of England and Europe!

1710 – Statute of Anne Established principles of author’s ownership of copyright Created a “public domain” for literature by limiting term of protection

and ensuring that once a work was purchased the author no longer had control over its use

1787 – U.S. Constitution Article I, Section 8, Clause 8, “the Congress shall have power . . . 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”


History of U.S. Copyright Law

1831 – Revision of the U.S. Copyright Act Extended term of protection to 28 years with possibility of a 14 year

extension Conformed with European law

1870 – Revision of the U.S. Copyright Act Administration of copyright registrations moved from District Courts

to the Library of Congress Copyright Office No change in term of protection

1790 – U.S. Copyright Act Granted American authors the right to print, re-print or publish

their work for a period of 14 years and to renew for another 14 years



1908 – Berlin Act Set duration of copyright protection at life of author plus 50 years Expanded scope to include newer technologies

1909 – Revision to the U.S. Copyright Act Broadened scope to protect all works of authorship Extended term of protection to 28 years with possibility of a 28 year

renewal

1886 – Berne Convention Mutual recognition of copyright between sovereign nations Uniform law to replace need for registration in every country U.S. did not become a signatory until 1988



Allowed for libraries to make copies of copyrighted works without permission for purposes of: scholarship preservation inter-library loan

And it codified the “Fair Use Doctrine”

1976 – Revision to the U.S. Copyright Act



“Fair Use” Doctrine - the fair use of a copyrighted work, including reproduction in copies … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.




















Folsom v. Marsh – 1841

The defendant had copied 343 pages from the plaintiff’s 12-volume biography of George Washington in his two-volume work. He claimed a “fair use” defense in that his work was a “criticism”. In this famous decision, Justice Joseph Story wrote:


Folsom v. Marsh – 1841“A reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purpose of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy…”


Folsom v. Marsh – 1841“In short, we must often … look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”


These Principles were Later Written into Copyright Law

To determine whether use is a “fair use” one must consider the:

1. purpose and character of use (including whether the use is commercially motivated or instead is for nonprofit educational purposes)

2. nature of the copyrighted work3. amount and substantiality of the portion used in

relation to whole4. effect of use on potential market


1. Purpose and Character or Use To justify the use as fair, one must

demonstrate how it either advances knowledge or the progress of the arts through the addition of something new!

The use must be transformative!

Not merely for personal gain!


2. Nature of the Copied Work Facts and ideas are separate from copyright –

only their particular expression or fixation is subject to copyright protection

Sometimes social importance of the work can outweigh copyright protection: Zapruder film of JFK’s assassination was purchased

by Time Magazine and copyrighted Copyright was not upheld in “Time Inc. v. Bernard

Geis Associates” dealing with publishing stills from the film


3. Amount and Substantiality Generally the less that is used in relation to

the whole, the more likely the use will be viewed as fair

However, in “Harper & Row Publishers, Inc. v. Nation Enters”: use of 400 words from President Ford’s memoir

by a political opinion magazine was ruled an infringement

because those particular words were viewed as“heart of the book”, thus were substantial!


4. Effect Upon the Work’s Value Supreme Court in previously mentioned

“Nations” case called this the “single most important issue” in determining fair use

Two kinds of harm to potential markets are considered: Is the use a direct market substitute for original

work? Does the use limit other potential market

opportunities, e.g., licensing?


Case Law: Test of “Fair Use”1991 – Basic Books, Inc. v. Kinko’s

Graphics Corp.A Federal District Court in New York ruled that Kinko’s Graphic Corporation infringed copyrights, and did not exercise fair use, when it photocopied course packs that included book chapters, and then sold them to students for class work. The court found that most of the fair use factors worked against Kinko’s in this case, especially given Kinko’s profit motive in making the copies. Additionally, the court found that the classroom guidelines did not apply to Kinko’s. The court did not rule that course packs cannot constitute fair use in other circumstances.


Other Factors Considered by the Courts in Determining Fair Use

Codes Developed by Professional Groups:Documentary Filmmakers Statement of Best

Practices for Fair Use - 2005Code of Best Practices for Fair Use in Media

Literacy Education - 2008Code of Best Practices for Fair Use for Online

Video - 2009


Fair Use Summary for Educators Examples of Fair Use in education:

• Minimal use for classroom instruction • Using quotes from a book in a book review to

illustrate the author’s style

Be careful with web postings! – In 2000, the court found Free Republic guilty of copyright infringement for copying the full text of LA Times news articles and posting for free on their website, thus allowing readers to avoid paying normal fees to the LA Times!


Parody: Fair Use or Copyright Infringement

A parody, because it is a method of criticism, must inevitably make use of another creative work. This inherently creates a conflict between the creator of the work that is being parodied (as no one likes to be criticized, made fun of or ridiculed) and the creator of the parody. It is also highly unlikely that a copyright owner will grant permission or a license to a parodist to use their copyright protected work in creating a parody.


Parody: Fair Use or Copyright Infringement

Since copyright law prohibits the substantial use of a copyrighted work without permission of the copyright owner, it may be necessary for the parodist to rely on the fair-use defense to forestall any liability for copyright infringement.

Another defense – first amendment right of free speech!


Parody: Fair Use or Copyright Infringement The courts have distinguished between parody

using a work in order to poke fun at or comment on the work itself, and satire – using a work to poke fun at or comment on something else!

The court’s have been more friendly to parodies

In the end, “fair use” is determined by application of the same four rules


Roy Orbison’s publisher, Acuff-Rose Music Inc. sued 2 Live Crew in 1989 for their use of Orbison’s “Oh, Pretty Woman” in a mocking rap version with altered lyrics

The court viewed 2 Live Crew’s version to be a “ridiculing commentary” (thus a parody) on the earlier work

The court established that a commercial use could be a fair use especially when the markets for an original work and a transformative work are different

Campbell v. Acuff-Rose Music Inc. - 1994


“Food Chain Barbie: Case

Artist Tom Forsythe’s series of 78 photographs titled “Food Chain Barbie” generally show nude Barbiesbeing attacked by vintage household appliances as a parody of “mindless consumer advertising”

Mattel sued for copyright & trademark infringement Forsythe, defended by the ACLU, prevailed and

Mattel lost its final appeal in 2003.


Trademark LawWhat is a trademark? Any word or symbol that is consistently attached to a

product to identify and distinguish it from others in the marketplace, e.g., a brand name

Often used with patents for extra protectionXerox has patents on photocopiers and the Xerox

trademark name If patent expires, trademark still offers some

protection Also used with products that are not patent protected

(Hula Hoop, Crock Pot)


Trademark LawOther protected words/symbols include:

Service Marks (Blue Cross/Blue Shield Emblem)

Certification Marks (Good Housekeeping Seal of Approval)

Collective Marks (FDIC Symbol)

Trade Name (Proctor & Gamble is trade name -Ivory is trademark)


Trademark Law So, you need a Band-Aid (sterile bandage strip)

and an Aspirin (acetylsalicylic acid), because while you were in the park Roller-blading (in-line skating) and rocking out to your Walkman(portable stereo device), a Frisbee (plastic flying disk toy) clocked you on the noggin (head).

Trademark names are a common in our vocabulary! But these laws are specific per country. And some countries don’t even have trademark laws.


Trademark LawIssues to consider when selecting a

trademark:

The Strongest (easiest to defend) are: Arbitrary (Apple Computers), fanciful(Double Rainbow Ice Cream), or coined terms (Intel for Integrated Electronics) The weakest are: Generic (“The Pill” for

birth control pills) or descriptive (“Electric Fork”)


Trademark LawIssues to consider when selecting a

trademark: Generally, it is best not to select a mark already

in use (or close enough to cause customer confusion, mistake or deception); however There are many duplicate trademarks used in

different fields: Apple Computers and Apple Records, Delta Airlines and Delta Faucets Begin using the name or file an intent-to-use

(ITU) and register it with PTO


Victoria’s Secret v. Victor’s Little Secret

January, 2003 – the case involved a Kentucky mom-and-pop business called Victor’s Little Secret that sells “adult novelty” and “wild outfits.” They claimed the name was inspired by owner Victor Moseley’s desire to keep the business secret from a former employer. The lingerie manufacturer Victoria’s Secret, which has held the trademark on its name since 1981, claimed unfair competition, trademark infringement, and sued him.


Victoria’s Secret v. Victor’s Little SecretAt issue for the Supreme Court was whether

Victoria’s Secret had to show its trademark was “diluted,” or whether there was merely the likelihood of economic harm if the store was allowed to keep the name.

A unanimous court ruled that while Victoria’s Secret unquestionably has an interest in protecting its famous name, federal trademark law requires more evidence that a competitor actually caused harm by using a sound-alike or knockoff name. Ruling for Victor’s Little Secret.


Matel v. MCA Records and Aqua

Mattel sued Aqua, a Danish band, who called Barbie a “blond bimbo” in their smash 1997 dance single “Barbie Girl.”

The 9th Circuit ruled that Aqua’s free speech rights in their parody outweighed Mattel’s right to see its trademark untarnished and undiluted by Aqua’s mean lyrics.

January, 2003 – The Supreme Court declined without comment to hear an appeal from Mattel.


Remember the Goal: Balance of Private Rights and Public Interest

“the Congress shall have power . . . 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”








So How’s Our Current Approach

Working?


Is it accomplishing the goal of “promoting” the progress of science and the useful arts (for the

public good)?


My Observations on Current State of Patent Law & Practice

With qualification, the current system works - sort of!

I’ll comment on various important aspects of current law/practice: Novelty Infringement Enforcement Subject Matter Period of Exclusivity Bayh-Dole and Universities!



Novelty!I still like the U.S. novelty requirement – but! Every minute, worldwide scientific knowledge

increases by 2,000 pages - it would take 5 years to read all of the scientific material produced every 24 hours

Even with sophisticated search capabilities, some relevant prior art is missed

Therefore, some patents issue that aren’t novel But post-issuance patent challenges serve as a remedy



Infringement Enforcement!Works most of the time – except…!

Easier when dealing with tangible inventions, e.g., a new drug, the “make, use, sell” exclusion is possible to monitor within a geographic area

Easier to identify when a single patent is represented in a product (a product containing rights to hundreds of patents is far more difficult)

Puts burden of enforcement on patent owner –probably right except when owner is “weak”



Subject Matter!Some changes are overdue! Predicted changes as a result of Bilski to disallow

business methods as patentable subject matter will be an improvement

The whole area of “software patents” needs reconsideration as well – as Europe has done!

Bilski may cause a rethinking of these as well



Period of Exclusivity!Seems reasonable and balanced! 20 year duration of “patent monopoly” is a

reasonable and balanced incentive for stimulating innovation

It allows adequate time for significant upfront product investment to be recovered during the period of “exclusive rights”!


My Observations on the Impact of Bayh- Dole on Universities!

Universities have adapted, sort of! Best model - when patenting/licensing are viewed as

legitimate methods for transferring knowledge from the academy to the marketplace

Most troubling model - when the TTO is viewed as a “profit center” expected to operate as a business

Ongoing Issues: managing conflicts of interest (public perception) impact on primary mission of academia


Your Thoughts on Patent Law?


My Observations on State of Copyright Law & Practice

It’s broken – for oh, so many reasons!

Digital Media and the Internet: The switch from difficult to copy analog media (books,

records, movies) to easy to copy digital media Infinite number of high quality copies can be produced at

the “press of a button” – and distributed world-wide Internet knows no borders, yet copyright laws are

country-specific Enforcement of copyright laws nearly impossible!


Copyright Law and Practice system is broken

Enormous volume (media and users): 161 exabytes (billion gigabytes) of digital content was

created and copied on the internet in 2006 – equal to 3 million times all the books ever written

> 1.8 billion users worldwide (27% of population) Librarians say it isn’t possible to track information sharing

“…it’s a bit of a Wild West situation…” Enforcement of copyright laws nearly impossible!



Attitudes & Behavior of Users (USDE) 89% of knowledge workers share documents with

colleagues on a weekly basis 85% regularly forward content to others w/o thinking of

copyright 70% say the WWW is a main source of information 30% think its legal to share information they pay for

(music, electronic books) Enforcement of copyright laws nearly impossible!



Excessive Duration of Exclusivity The duration of “copyright monopoly” of 95 years (120

when made-for-hire) beyond the life of the author is unreasonable and completely “out of balance” with the rights of the public

Congress has, and likely will continue to be influenced by powerful special interests who wish to push their rights to perpetuity



Excessive Duration of Exclusivity This perceived unfair exclusivity period along with relative

ease of infringement, make widespread compliance difficult and increasingly unlikely!

So we may face a serious dilemma created by both greed(excessive exclusivity brought about through political pressure) and technology (digital media and the internet)!


The Digital Intellectual Property Dilemma:

The internet offers access to an ever increasing quantity of high quality information while

Potentially imperiling the means for rewarding those who create and publish the information thus

Reducing the incentive to create!


“No man but a blockhead ever wrote, except for

money”Samuel Johnson


So, if authors and creators of copyrighted works aren’t fairly rewarded due to wide-spread infringement (enabled by the

internet), will the internet have “killed the goose”?


A Few Attempts to Cope:Copyleft Licenses

A creative use of existing copyright law to distribute licenses to use works (software, documents, music, art) with a few stipulations Copyleft licenses grant the right to distribute

copies and modified versions while requiring the same rights be preserved in modified versions This is a novel way to insure a work remains

freely available!


A Few Attempts to Cope:Open-Source Licenses

Copyright licenses for software that make source code available under terms allowing for modification and redistribution without having to pay the original author Some requirements may be added, e.g., keeping

name of author on all copies Often associated with “Open Source Initiative”

and the “Open Source Definition”


A Few Attempts to Cope:Open-Source Definition

Free Redistribution Must include source code Require modifications and derived works to be licensed

under same terms as original license Integrity of author’s source code No discrimination against persons, groups or fields of

endeavor License must not be specific to a product, restrict other

software and be technology neutral


A Few Attempts to Cope:Other Approaches to Manage Copyrights Copyright Clearance Center Rightsconnect Rightslink Creative Commons All are attempts to make the current system work

by streamlining licensing and keeping users out of trouble!

While well-intentioned, I believe these are nothing but temporary fixes!


Future Trends: Current trends will escalate as our environment

becomes increasingly information rich “Living” or “dynamic” documents will replace

static ones Participation will increasingly be central to our

content experience New tools and new technologies will continue to

disrupt the status quo The very concept of copyright as we currently

understand it will need to change!


Summary:In the past, with copyright protection for analog media, there was relative balance between our

laws, public policy, economics and technology. A book could be copied, but it was expensive to do so and the quality of the copy was poor. If you loaned the book to someone else, you were deprived of the

ability to read it!

But with digital media, these important societal systems are no longer in balance!


Final Observations: Laws always lag behind technology We need to rethink our fundamental assumptions

and practices dealing with copyright Test cases of significant importance occur

almost daily These changes are every bit as significant to

society as those associated with the industrial revolution

All this is occurring in the context of a global economy where laws/practices vary widely


Your Thoughts on Copyright Law?


Trade Secret LawWhat is a trade secret?

Any information, design, devise, process, composition, technique, or formula that is not known generally andthat affords its owner a competitive business advantage

Trade secrets may also take the form of “Business Information.” Customer lists Names of suppliers Pricing data


Trade Secret LawFamous example of trade secret: Coke Formula

“The company presents the formulaas a closely held trade secret known only to a few employees, mostly executives!”

May 23 2007: 3:54 PM EDT

ATLANTA (CNN) -- Two former Coca-Cola employees were sentenced Wednesday to serve federal prison terms for conspiring to steal and sell trade secrets to rival Pepsi.Joya Williams, 42, of Norcross, Ga., received an eight-year prison term, while Ibrahim Dimson, 31, got a five-year term, according to a news release from the U.S. attorney's office for the Northern District of Georgia. They were arrested last July after a federal sting operation was launched when Pepsi tipped off Coke that it was being offered inside information.


Trade Secret LawProtection for trade secrets?

In the United States, trade secrets are not protected by law in the same manner as patents or trademarks. Specifically, both trademarks and patents are protected under Federal statutes. Trade secrets are protected by state laws. All states except MA, NY, NJ, NC and TX have adopted the Uniform Trade Secrets Act (UTSA).


Trade Secret LawThese laws afford protection for trade secrets:

1. Proportional to their business value and

2. Based upon how well the business has protected the secret.

The courts have rejected requests for relief if company had sloppy procedures for protecting secrets!


Relationship of Patents To Trade Secrets

Why would an owner of IP choose to protect their Ip under trade secret law rather than seek patent protection?

Perpetual protection is possible Cost Confidentiality makes it hard to “design around” Inventors aren’t named in trade secret rights Trade secret rights are obtained immediately


Relationship of Patents To Trade Secrets

Why would an owner choose patent protection over trade secret law? Reverse engineering is possible with trade secrets. Patents are presumed valid by the court, trade secrets

must be proven to exist before the suit may proceed. Trade secrets discovered by legitimate means may be

patented by others (if an invention is protected under trade secret law and put to commercial use, a patent must be filed within one year or any subsequently issued patent may be invalided).

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Intellectual Property: Copyrights, Trade Marks and Trade ...quigg/spring2010/Lectures/Lecture15.pdf · suits (also allows for damages plus legal fees) ... Playboy Enterprises Inc