Chapter 4 Intellectual Property. What is Intellectual Property The intangible creative work Value of intelligence and artistic work comes from creativity,

Chapter 4

Intellectual Property

What is Intellectual Property

• The intangible creative work• Value of intelligence and artistic work

comes from creativity, ideas, research, skills, labor, non-material efforts and attributes that the creator provides

• Protected by copyright and patent law

Copyrights

• Copyright holders have exclusive rights: To make copies To produce derivative works, such as translations

into other languages or movies based on books To distribute copies To perform the work in public (e.g. music, plays) To display the work in public (e.g. artwork,

movies, computer games, video on a Web site)

Changing Technology

• Digital technology and the Internet has made copyright infringement easier and cheaper

• New compression technologies have made copying large files (e.g. graphics, video and audio files) feasible

• New tools allow us to modify graphics, video and audio files to make derivative works

• Scanners allow us to change the media of a copyrighted work, converting printed text, photos, and artwork to electronic form

Significant Cases

• 1790 - first copyright law passed• Copyright Act of 1909 - defined an unauthorized

copy as a form that could be seen and read visually• 1976 and 1980 - copyright law revised to include

software and databases (“Fair Use” was defined)• 1982 - high-volume copying became a felony• 1992 - making multiple copies for commercial

advantage and private gain became a felony

Significant Cases

• 1997 - No Electronic Theft Act - made it a felony to willfully infringe copyright by reproducing or distributing one or more copies of copyrighted work with a total value of more than $1,000 within a six-month period

• 1998 - Digital Millennium Copyright Act (DMCA) - prohibits making, distributing or using tools to circumvent technological copyright protection systems; and included protection from some copyright lawsuits for Web sites where users post material

• 2005 - Congress made it a felony to record a movie in a movie theater

Fair Use Doctrine

• Under some circumstances, it is legal to reproduce a copyrighted work without the permission of the copyright holder.

• Allows for use of copyrighted material that contributes to the creation of new work

• & uses that are not likely to deprive authors or publishers of income for their work

Fair Use Doctrine

• 4 Factors:1. What is the purpose and character of the use?

2. What is the nature of the work being copied?

3. How much of the copyrighted work is being used?

4. How will this use affect the market for the copyrighted work? (this one generally is given more weight)

Significant Cases

• 1984 - Sony v. Universal Studios

• 1991 - Kinko’s

• 1992 - Sega v. Accolade

• 1992 - Atari v. Nintendo

• 1992 - copies of CD made ok

Significant Cases

• 1994 - Davy Jones Locker

• 1994 - David LaMacchia

• 2000 - Sony v. Connectix Corp.

• 2001 - Napster

• 2005 - MGM v. Grokster

Napster

• Was the sharing of music via Napster fair use?• Napster's arguments for fair use

The Sony decision allowed for entertainment use to be considered fair use

Did not hurt industry sales because users sampled the music on Napster and bought the CD if they liked it

The songs weren’t copied for commercial use• RIAA's (Recording Industry Association of America)

arguments against fair use "Personal" meant very limited use, not trading with thousands

of strangers It wasn’t being used for educational, research, or news use Songs and music are creative works and users were copying

whole songs Claimed Napster severely hurt sales

Napster

• Should Napster be responsible for copyright infringement? Napster had legitimate uses in promoting new

bands & artists who were willing to let users copy their songs

Napster did not keep copies of songs on its computers

It provided a means for users to infringe copyrights (like Betamax)

Courts said Napster was liable because it had the right & the ability to supervise its systems - in 2001, they ruled that Napster “knowingly encourages & assists in the infringement of copyrights”

Ethical Arguments About Copying

• Can’t afford to buy it• The company is large, wealthy• Wouldn’t buy it at retail price anyway so the

company is not losing money• Making a copy for a friend is an act of generosity• This is a small violation compared to those who

engage in large piracy outfits• Everyone does it – you’d be foolish not to• I don’t know how to get permission to use a song or

video clip• I’m posting this video as a public service

Protecting Software

• Expiration date encoded into the program

• Hardware dongle• Copy protection on disks• Activation or registration

• BSA

International Piracy

Stolen Software: Piracy Hits More than Movies and Music PCMag.com article dated Jan 25, 2012 about piracy after all the news of SOPA & PIPA in January, and the take-down of MegaUpload

Countries with lowest & highest rates in 2010:20% U.S. 93% Georgia20% Japan 91% Zimbabwe20% Luxembourg 90% Bangladesh22% New Zealand 90% Moldova24% Australia 90% Yemen24% Austria 89% Armenia25% Sweden 88% Venezuela25% Belgium 88% Belarus25% Finland 88% Libya26% Switzerland 88% Azerbaijan

International Piracy

… so, even among the countries with the lowest piracy rates, 1/5th to 1/4th of all software is pirated. And these percentages don’t tell the story of which countries are responsible for the highest total dollar amount of pirated software:

U.S. $9.5 billion

China $7.8 billionRussia $2.8 billionIndia $2.7 billionBrazil $2.6 billionFrance $2.6 billionGermany $2.1 billionItaly $1.9 billionU.K. $1.8 billionJapan $1.6 billion

Threats to Innovation

• CD writers• DVRs• DVD players• iPod

• Should we ban or restrict software, technology, a device, or research because it has the potential for illegal use, or should we ban only the illegal uses?

Criticisms of DRM

• Prevents or threatens fair uses• Prevents or threatens use of material

in the public domain• Different types on different platforms• Does it even work?

DMCA vs Fair Use, Freedom of Speech, & Innovation

• After DMCA, courts are less likely to protect technologies that have significant, legitimate, non-fringing uses

Video Sharing

• What are the responsibilities of sites on which people post videos?

• Safe-harbor provisions have resulted in putting the burden on copyright holders to find the infringing items and send take-down notices.

Search Engines

• Individuals and companies have sued Google for almost every search service it provides.

Types of Software Distribution

• Free software, open source Copy-left A few examples: Linux, Apache, MySQL,

FireFox, Skype

• Freeware• Shareware• Proprietary software, commercial

software