Introduction to intellectual property law April 22, 20091 with acknowledgements to Hal Abelson,...
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Transcript of 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
April 22, 2009 6
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
April 22, 2009 7
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.”
April 22, 2009 8
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.”
April 22, 2009 9
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
April 22, 2009 10
© 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
April 22, 2009 17
April 17, 2009 Harvard Bits 24
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.
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.”
April 22, 2009 31
• http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/publicdomain/HedenkampFreeMickeyMouseVaSp&E(2003).htm#Document2zzFN_B14
April 17, 2009 Harvard Bits 35
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
– ...
April 22, 2009 37
The Internet
• Disrupts Business Models Based on Scarcity
• Disrupts Quality Control Based on Cost
38
• “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
39
43
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)
44March 15, 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
April 22, 2009 50
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.
April 17, 2009 Harvard Bits 59
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.
April 17, 2009 Harvard Bits 60