Cfp Tutorial

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TUTORIAL ON

INTELLECTUAL PROPERTY

LAWPamela Samuelson & David Post

Computers Freedom & PrivacyApril 4, 2000


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OVERVIEW

Samuelson will do:

Overview on intellectual property & its purposes

Basics of copyright, emphasizing digital copyrightissues

Basics of trade secrecy and DeCSS case

Post will do:

Trademark & domain name disputes

Patents for software & business methods


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WHAT IS IP?

Intangible rights in commercially valuableinformation permitting owner to control marketfor products embodying the information

Copyrights for artistic & literary works

Patents for technological inventions

Trade secrets for commercially valuable secrets

(e.g., source code, Coke formula) Trademarks (e.g., Coke) to protect consumers

against confusion


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ELEMENTS OF IP LAW

Subject matter to be protected

Qualifications for protection

Who can claim Procedure for claiming

Substantive criteria

Set of exclusive rights

Limitations on exclusive rights Infringement standard

Set of remedies


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DIFFERENT THEORIES

Utilitarian: grant rights to create incentivesfor beneficial investments

Natural rights: persons have natural rightsin their creations if valuable

Personality-based: my creation is an

extension of myself Unjust enrichment: appropriating someone

elses work may be unfair


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ELEMENTS OF COPYRIGHT

Subject matter: works of authorship

(e.g., literary works, musical works, pictorial works; NB:

software is a literary work) Qualifications:

Who: the author (but in US, work for hire rule)

Procedure: rights attach automatically (but US authors

must register to sue; remedies depend on regis.)

Criteria: originality (some creativity); in US, works

must also be fixed in some tangible medium


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COPYRIGHT ELEMENTS (2)

Set of exclusive rights (right to exclude others)

to reproduce work in copies,

to prepare derivative works, to distribute copies to the public,

to publicly perform or display the work, or

communicate it to the public

moral rights of integrity & attribution (US visual art) some rights to control acts of those who facilitate or

contribute to others infringement (e.g., ISPs, agents)


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Limitations on exclusive rights:

Fair use (e.g., Sony Betamax, Acuff-Rose) in US

Fair dealing in UK and Canada First sale (e.g., libraries, bookstores)

Library-archival copying (e.g., ILL, course reserves)

Classroom performances

Special inter-industry compulsory licenses (e.g., cable-network TV)

Other (e.g., playing radio in fast food joint)


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Limitations on exclusive rights: duration

Berne standard: life + 50 years

EU & US: life + 70 years; 95 yrs from publication

Infringement standard: violating exclusive right(often copying of expression from protectedwork based on substantial similarity)

Remedies: injunctions, lost profits, infringersprofits, statutory damages, costs, & sometimesattorney fees


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UNCOPYRIGHTABLE

STUFF Ledger sheets and blank forms

Rules and recipes (merger)

White pages listings of telephone directories

Facts and theories

Ideas and principles Methods of operation/processes

Bicycles and bicycle racks (too functional)


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COMPILATIONS AND

DERIVATIVE WORKS Creativity in selection and arrangement of data or

other elements = protectable compilation

Original expression added to preexisting work =protectable d/w (e.g., novel based on movie)

Compilation or derivative work copyright doesntextend to preexisting material (e.g., data or public

domain play) Use of infringing materials may invalidate

copyright in compilation or derivative work


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INTERNATIONAL TREATIES

Berne Convention for Protection of Literary& Artistic Works

Basic rule: national treatment (treatforeign nationals no worse than do own)

Berne has some minimum standards

(duration, exclusive rights, no formalities) WIPO administers treaties, hosts meetingsto update, revise, or adopt new treaties


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INTERNATIONAL TREATIES

(2) TRIPS (Trade-Related Aspects of Intellectual

Property Rights) Agreement

Sets minimum standards for seven classes of IPR,including copyright, that binds WTO members

Must have substantively adequate laws, as well asadequate remedies and procedures and must

enforce effectively Dispute resolution process now available (e.g., EU

challenge to US music licensing exception)


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DIGITAL COMPLICATIONS

Digitized photographs of public domain works(e.g., Microsoft claims ownership in some)

Very easy to reselect and rearrange the data indatabases; uncreative databases may be veryvaluable; EU has created a new form of IP right incontents of databases to deal with this

New ways to appropriate information (e.g., NBAsued Motorola for stealing data from NBAgames for sports pager device)

Digital environment lacks geographic boundaries


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DIGITAL COMPLICATIONS

(2) Cant access or use digital information without

making copies

Very cheap and easy to make multiple copies anddisseminate via networks

Very easy to digitally manipulate w/o detection

People expect digital information to be free or

nearly so Many people think that private copying doesnt

infringe copyright; much of industry disagrees


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DIGITAL COPYRIGHT

CONTROVERSIES Linking, framing, & filtering

iCraveTV case

Cyberpatrol case

RIAA v. Diamond (Rio player case)

UMG Recordings v. MP3.com Napster case

DeCSS cases


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US WHITE PAPER ON

IP & THE NII (1995) Full potential of NII wont be realized

unless IP/copyright owners are adequately

protected

Many are withholding works from the net

because of threat of piracy

Copyright can be adapted to digitalenvironment, need a few changes


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WHITE PAPER POSITIONS

Authors have right to control temporary copies inRAM (reading or browsing as infringement?)

Fair use should recede (if work can be licensed, itmust be licensed)

No more first sale/sharing rights (first sale onlypermits redistributing same copy, not making new

ones) ISPs should be held strictly liable for user

infringements


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WHITE PAPER POSITIONS

Need for new rules to make it illegal to

remove or alter copyright management

information (CMI) Need to outlaw technologies useful for

bypassing technical protection systems

Get international treaty to universalize thesenew norms


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WIPO COPYRIGHT TREATY

(1996) Reproduction right applies to digital works

(but no agreement on temporary copies)

Exclusive right to communicate digitalworks to the public by interactive service

Fair use and other exceptions can apply asappropriate; new exceptions OK

Merely providing facilities forcommunication not basis for liability


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WIPO TREATY (2)

Tampering with copyright management

information to enable or conceal infringement

should be illegal Need for adequate protection and effective

remedies for circumvention of technical

protection systems

Treaty not yet in effect, but US has ratified; EU in

process of implementing; Canada has signed


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DMCA

Digital Millennium Copyright Act (1998)

Safe harbor provisions for ISPs

Transitory network communicationSystem caching

User-stored information

Information location tools Section 1201: anti-circumvention rules

Section 1202: false CMI/removal of CMI


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DMCA ANTI-

CIRCUMVENTION RULES Treaty very vague; unclear whats required

Campbell-Boucher bill in US: proposed to outlaw

circumvention of TPS to enable copyrightinfringement

MPAA: wanted all circumvention outlawed

Compromise in DMCA: illegal to circumvent an

access control, 17 U.S.C. s. 1201(a)(1)

But 2 year moratorium; LOC study; 7 exceptions


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EXCEPTIONS TO

CIRCUMVENTION RULE Legitimate law enforcement & national

security purposes

Reverse engineering for interoperability

Encryption research and computer security

testing

Privacy protection & parental control

Nonprofit shopping privilege


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ANTI-DEVICE PROVISIONS

Illegal to manufacture, import, offer topublic, provide or otherwise traffic in

Any technology, product, service, device,[or] component

Ifprimarily designed or producedtocircumvent TPS, if only limited commercialpurpose other than to circumvent TPS, or ifmarketedfor circumvention uses


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MORE ON DEVICE RULES

1201(a)(2)--devices to circumvent effective

access controls

1201(b)(1)--devices to circumvent effectivecontrols protecting right of cop. owners

Actual & statutory damages + injunctions

Felony provisions if willful & for profit

MPAA v. Reimerdes 1st civil case


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CURIOUS THINGS ABOUT

1201 Only 3 exceptions to 1201(a)(1) explicitly

allow building tools

Only interoperability exception limits bothanti-device rules

Did Congress mean to allow circumventionto make fair use, yet make it illegal to maketools needed to accomplish? (Ha! Ha!)

LOC to study only act, not device rules


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PROBLEMS WITH A/C REGS

Legitimate purpose circumventions

existing exceptions overly narrow

need for general purpose exceptionclarify that fair use circumvention is OK

Dual use technologies

tools to enable legitimate useshow device rules could be narrowed

Copyright-centric regulations


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EXCEPTIONS TOO NARROW

Interoperability: not just programs; otherreverse engineering may be legitimate

Encryption and computer security research:no authorization and expert requirements

OK to make tools

less onerous rules on disseminating results

Privacy exception: Windows 2000hypothetical


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A GENERAL PURPOSE

EXCEPTION? Need for or other legitimate purpose

exception to access control rule

Examples of other legitimate acts:if reasonable grounds to believe infringing copy

or computer virus inside TPS

illegitimate invocation of technical self-help

Courts able to tell difference betweenlegitimate & illegitimate acts


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DUAL USE TECHNOLOGIES

Circumvention tools are not burglars tools

Ways to narrow rules:

substantial noninfringing use standard intent/knowledge/injury/infringement requirement

commercially significant cf. apparent legitimatepurpose (freeware should not be vulnerable)

technology-specific (e.g., circumvention of SCMS)

Think through relation between range oflegitimate circumventions and availability of tools(if X is lawful, tool to do X should be OK)


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COPYRIGHT-CENTRICITY

Encryption protects more than commercialcopyrighted products (e.g., private personalcommunications, trade secret/confidential business

information, e-cash)

Circumvention of encrypted information is a moregeneral problem (sometimes legitimate, sometimesnot)

So is the availability of circumvention technology

Would suggest the need for a general law


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UNINTENDED

CONSEQUENCES? X makes software that circumvents Ys encryption

system

Z is a copyright owner who decides to use Ysencryption system to protect digital pictures

Does Xs tool then become illegal?

Can Y sue X? Can Z sue X? What harm has Xs

software done to Y or Z? 1201 (a)(2) and (b)(1) does not require any

underlying infringement; mere potential is enough


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MPAA v. REIMERDES

Injunction vs. posting of DeCSS on websites orotherwise making it available

CSS is effective access control for DVDs

DeCSS circumvents it & has no othercommercially significant purpose

Lack of evidence for Linux compatibility

argument Besides, 1201(f) only protects interoperation with

programs, not data on DVD


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ELEMENTS OF TRADE

SECRECY Information that can be used in business that is

sufficiently valuable & secret as to afford aneconomic advantage to the holder

Outgrowth of unfair competition law

No exclusive rights as such, but protected vs.use of improper means & breach of confidence

Independent development & reverse engineeringare legitimate ways to acquire a trade secret

Relief generally limited to period in whichindependent development would have occurred


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DVD-CCA v. McLAUGHLIN

Trade secret misappropriation case

CSS = proprietary information; DVD-CCA tookreasonable steps to maintain secret

Inference: someone must have violated clickwraplicense forbidding reverse engineering

Breach of agreement was improper means

Even though DeCSS on web for 4 months, not toenjoin would encourage posting TS on Web

Judge upset by boasting about disrespect for law


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IMPLICATIONS OFDVD-CCA

Anti-reverse engineering clauses are common insoftware licenses; enforceability much debated

Judges willingness to enforce and treatinformation obtained through reverse engineeringas trade secret worrisome

Judges willingness to enjoin information that hadbeen public for several months may be error

Fruit of poisonous tree rationale (judge knowsJohansen didnt reverse engineer, nor did manyposters, yet held as trade secret misappropriators)


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CONCLUSION TO PART I

Digital technology has posed many difficultquestions and problems for copyright law

Much remains in controversy; how current casesare resolved matters a lot

Possible to build balance into law, but USselling broad anti-circumvention rules

Gap in perception about law as between copyrightindustry and the public; enforceability & respectfor law contribute to difficulties

Easier to see the risks than the opportunities

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