Download pdf - CIS 485 - Assignment 2 - Guide to Software Copyrighting and Patenting

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CIS 485 ASSIGNMENT 2

Guide to Software Copyrighting and

PatentingUniversity of the Fraser Valley

Duncan Jeffries

Praneet Batwar

6/24/2012


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Introduction

In todays world robbery is not just limited to money or jewelry. Ideas or concepts too

are being stolen. We just dont call it robbery or theft; its called Intellectual Property Theft.

Ideas and Concepts can be worth millions if not billions of dollars. If not copy righted the idea orconcept which could have been worth a lot of money could be used by anybody. Copyright is a

legal tender offered by almost all the government bodies around the world. It gives us the

exclusive rights to our intellectual property. Copyrighting can apply to a wide range of creative,

intellectual or artistic forms or works. We over here will focus mainly on the copyrighting of

software. Software copyright is used by the proprietary software companies to prevent the

unauthorized copying of the software they create.

In recent events the news is filled with large multinational firms battling against the

rights to use a piece of technology. In some cases it maybe as trivial as the mechanism to

unlock the smart phone (The infamous Google vs. Apple). I plan on discussing this topic further

as it supports the cause of having a management plan which includes a Copyrighting/Patenting

action plan. I chose this topic because of the over increasing patent wars that have been

happening. Copyrighting is also another major way to fight against software piracy. As the

number of internet users have increased over the years rogues sites and services have come up

which offer a pirated version of the software for free. This is in general hurts the I.T industry.

History

Today the number of software that is created enjoy protection by the copyright laws wehave now. In the early days of computer programming, the laws werent so clear. It is over the

time and through various experiences that todays laws have come to being. In the 1960s there

were few computers and fewer computer programs. Before software is widely marketed it was

easy to protect the software. The Copyright Act of 1976, which became effective on January 1st

,

1978 made it clear that the government intended software to be copyrightable. The definition

of the kind of works that could be copyrightable were works, other than audiovisual works,

expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the

nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film,

tapes, disks, or cards, in which they are embodied.. What wasnt very clear was how muchprotection the government intended to give the computer programs, and whether there should

be special exceptions to the exclusive rights of the copyright owners.

In 1990 the Computer Software Rental Amendments was passed which made sure that

unless authorized by the owners, even if you purchase the software you cannot replicate it and

sell it or rent or lease it.


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The McAfee vs Symantec (1997) : Case Study

In 1997, McAfee filed a $1 Billion law suit against rival Symantec Corp. This was because

Symantec claimed that McAfee, had stolen software from Symantec. The whole issue revolvedaround a virus scan software which was fairly new then. The initial clash started in April of that

year when Symantec sued McAfee for copyright infringement. The lawsuit was filed because

McAfee made software similar to Nortons CrashGuard; software used to prevent the crashing

of computers due to some applications. Symantec claimed that PC Medic used a similar code

that was stolen from crash guard. Because Symantecs code was copy written McAfee was

ordered to turn over the source code for much of its software. McAfee later on dropped the

case.

This was a 15 year old case. Right now in 2012, software based lawsuits are quite rare

because they are well protected. Also, as the I.T industry is grown, each company develops its

own code. This is where we focus on our main issue, to develop code or programs and making

sure

The Need for Software Patents

Software inventions and hardware inventions are the same. If a new piece of hardware

technology is invented and is patented or copyrighted. Then new software should also becopyrighted. Taking a historic approach to this, the founders of the US, wrote it into the

constitution initially when it was drafted that all intellectual property be protected (Article I,

Section 8, Clause 8). It is known as the Copyright clause. Without any protection to the

inventors and the thinkers, then there would be no motive for innovation.

As I.T industry is increasing more and more companies are having custom programs

being made to automate the companys unique business processes. When employing outside

members as opposed to its own employees, immense care should be taken. There have been

many instances where companies have been taken a shock when they learn that the program

which they had spent a lot of money developing is being sold to others by the outside

developer because there was no copyright assigned. Therefore custom legal contracts which

are related to the computer program should be created in order to protect the companys

investment.

Copyright laws were initially designed to protect the authors creativeworks and guard

them from being stolen or misused. An authors copyright cannot be transferred to another.


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Oral agreements are completely unreliable. Outside programmers are getting smarter and

intend to keep all the work they have done which they have been paid for. Thus those who

employ outside programmers should equally be careful to protect their rights. One right way to

facilitate protection is to design a custom legal agreement between the programmer and the

company. This agreement should be written in order to transfer all the rights of the program tothe company.

A computer program generally has two parts, literal and non-literal. The literal part of

the software is generally the source code. This is easily copyrightable. The non-literal part of the

source code is the design, the structure of the program, the sequence in which the program

engages the user. The literal parts can be copyrightable, but the non-literal parts can be

reduced to a tangible expression so that it can be copy righted. Usually it is better for the

company to give in the non-literal inputs.

Another plus side to patenting or copyrighting your software is protection againstpiracy. In the year 2004, $80 Billion worth of commercial packaged software was installed

worldwide, but only $51 billion was paid for. This led the software companies to suffer a 36%

loss globally. Currently several principal international treaties provide copyright protection

under an umbrella system in which a copyrighted work released in any member country has

copy right protection in all member countries. The Digital Millennium Copyright Act (DMCA) of

1998 not only criticized the copyright infringement, but also penalizes production and

distribution of technology that has been copyrighted.

In the year 2008, software companies saw a loss of 41%, in 2009 they saw a loss of 43%

and in 2010 a loss of $ 50 Billion was reported.

Risks and Loopholes in Patenting

Although there are standard laws that protect the programs and the software from

piracy and intellectual property thefts, there arent any solid rules that protect the non-literal

on intangible aspects of a program. These can include interfaces, program structures, sequence,

GUIs. And methods, systems, processes and functionalities cannot be copy righted. Therefore

there easily can be a loophole used to copy software.

A major example that can explain this is the Google vs Oracle case. Oracle sued Google

over copyright infringement. Oracle has managed to prove that Google has copied nine lines of

code in their Android operating system. On May 31 2012, Judge Alsup ruled that the specific

code that is used to carry out a function can be copyrighted but the methods, fucntions,

declarations or method headers or classes cannot be copyrighted. To accept Oracles claim


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would be to bar anyone from righting code to perform a particular function. The case was

controlled by the following principles

Under the merger doctrine, when there is only one (or only a few) ways toexpress something, then no one can claim ownership of such expression by

copyright.

Under the names doctrine, names and short phrases are not copyrightable. Under Section 102(b), copyright protection never extends to any idea,

procedure, process, system, method of operation or concept regardless of its

form. Functional elements essential for interoperability are not copyrightable.

Under Feist, we should not yield to the temptation to find copyrightabilitymerely to reward an investment made in a body of intellectual property.

Patent Trolls

Patent trolls are large companies that buy a lot of patents and then extort fees from smaller

companies that are unaware of violating them. These surprise lawsuits can have a devastating

effect on smaller companies who cannot afford to hire a corporate lawyer to fight the case for

themselves. Even if you are in the right it can be very expensive to defend yourself. Therefore

smaller companies just give up and pay the license fee. This is definitely a misuse of the patent

system.

Patent Warfare

Large tech companies are using patent lawsuits to slowdown each other. Understanding thatthe cost of engaging a lawsuit is a lot less than the profit made by slowing the competitor, the

large tech companies are engaging in a non-stop war. These companies use everything they

have to slow down the opposite company. It can be hardware patents, software patents even

design ideas. This trend is majorly seen in mobile phone companies such as Apple, Samsung and

Motorola.

Apple vs Samsung (Case Study)

Apple initially started the attack stating that Samsung copied the design of iPad, iPod and

iPhone and implemented it in its Galaxy Tab. Apple said that instead of pursuing independent

product development, Samsung has chosen to copy Apple's innovative technology, distinctive

user interfaces, and elegant and distinctive product and packaging design, in violation of

Apple's valuable intellectual property rights.

Two weeks later Samsung replied with another lawsuit on Apple stating that Apple infringed on

patents concerning reducing data transmission errors in WCDMA (Wideband CDMA) mobile


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networks, tethering mobile phones to PCs so the PC can use the phone's wireless data

connection, and reducing power consumption when transmitting data over HSPA (High Speed

Packet Access) networks

This is a clear case study showing Apples and Samsungs aggressive strategy in slowing down

each others business.

Recommendation

As an IT consultant I suggest it is necessary to make sure to employ these ideas in the business

model of this company.

1. Make sure that each piece of new software code that is developed is copyrighted or at leastpatented for a long period of time.

2. If it is a literal or tangible part of the software such as the code, then it can be easilycopyrighted. If it is a non-literal part of the software then an agreement must be developed

so that the design and the idea of the software should be protected.

3. While employing an outside programmer to make software for the company, it is necessaryto make sure that agreement is met where the author of the code doesnt sell the code

later on to the outside market.

4. It is also important to make sure that before employing a new piece of software or beforedeveloping a new code or software, it should be checked if it has already been patented or

not. This is very important as Patent trolls could sue to company.


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References

1. Symantec (1997). Symantec Launches Lawsuit Against McAfee for CopyrightInfringement. Retrieved on June 24 2012 from

http://www.symantec.com/about/news/release/article.jsp?prid=19970423_01

Symantec launches a lawsuit against McAfee for copyright infringement. The subject

matter was a code for a anti-crash software. Used for historical purposes.

2. Symantec (1997). McAfee Drops Suit against Symantec In Japan. Retrieved on June 242012 from

http://www.symantec.com/about/news/release/article.jsp?prid=19970828_01

McAfee drops a lawsuit on Symantec. The lawsuit revolved around a code for a virus

scanning software. Used for historical purposes.

3. Shaw, Steven (2012 June, 12). Why we need software patents. Retrieved on June 242012 from

http://www.zdnet.com/blog/law/why-we-need-software-patents-part-3-of-3/129

Steven Shaw an active blogger and e-reporter enumerates and explains why software

patents are needed. He argues that Software inventions are the same as hardwareinventions and they too need equal patenting rights.

4. The IP Law Blog (2007 May, 06). Is That Expensive Custom Computer Program ReallyYours?Retrieved on June 24 2012 from

http://www.theiplawblog.com/archives/-copyright-law-is-that-expensive-custom-

computer-program-really-yours.html

The admin of the site in detail explains how an outsourced programmer can easily claim

ownership of the code created by the contracting firm even after taking the fullpayment for the work. The admin also further explains how a company should make

sure that its software is protected.
http://www.symantec.com/about/news/release/article.jsp?prid=19970423_01http://www.symantec.com/about/news/release/article.jsp?prid=19970423_01http://www.zdnet.com/blog/law/why-we-need-software-patents-part-3-of-3/129http://www.zdnet.com/blog/law/why-we-need-software-patents-part-3-of-3/129http://www.zdnet.com/blog/law/why-we-need-software-patents-part-3-of-3/129http://www.symantec.com/about/news/release/article.jsp?prid=19970423_01


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5. Sookman, Barry (2012 June, 03). So you want to protect computer programs bycopyright, the Oracle v Google and SAS v WPL cases.Retrieved on June 24 2012 from

http://www.barrysookman.com/2012/06/03/so-you-want-to-protect-computer-

programs-by-copyright-oracle-v-google-and-the-sas-v-wpl-cases/

Sookman explained how copyrighting codes are easy. But it is not easy to copy right

APIs, program structures, sequencing and organizations. The case of Google vs Oracle is

also given, where the final verdict of the case is given and the principles on which the

case was decided are also given.

6. Chiviz, Huang and Fernandez (2003)A New Weapon Against Piracy:Patent Protection asan Alternative Strategy for Enforcement of Digital Rights Retrieved on June 24 2012

from http://law.bepress.com/cgi/viewcontent.cgi?article=4193&context=expresso

This is a white paper by Chiviz, Huand and Fernandez, where they explain the effect

software piracy is having on the software global industry. They also go ahead and

explain, how patenting is a good way to protect your software in global markets.

7. Mace, Michael (n.d.). The case of software Patents.Retrieved on June 24 2012 fromhttp://mobileopportunity.blogspot.ca/2011/08/case-for-software-patents.html

Michael mace explains how patenting is being misused and companies are using patents

to extort money from smaller firms who use the patented software unknowingly. He

also tells us how large companies are engaging in Patent Warfare, where they file

lawsuits against each other to slow down their business.

8. McDonald, Stephanie (2012, June 25).Apple vs Samsung timeline: Clash of the Titans.Retrieved on June 24 2012 from

http://www.techworld.com.au/article/428531/apple_vs_samsung_timeline_clash_titan

s/?pp=2

Case study where large technology firms such as apple and Samsung are engaging in

constant patent warfare to slow down each others business.
http://mobileopportunity.blogspot.ca/2011/08/case-for-software-patents.htmlhttp://mobileopportunity.blogspot.ca/2011/08/case-for-software-patents.htmlhttp://mobileopportunity.blogspot.ca/2011/08/case-for-software-patents.html