IP Property Protection

Intellectual Property Protection for Code

9:00 am  May 15, 2004

Activities that Software developers might control

• Consumer reproduction of object code
• Commercial reproduction of object vode
• Inforporation of parts of source code in new programs
• Preparation and distribution of improved versions/derivative works

4 systems to protect

Trade Secrecy

Contracts

Copyright

Patents

Trade Secrecy

• To qualify
• Info must have been secret
• Plaintiff makes reasonable efforts to keep secret
• Information is commercially viable
• To be liable
• Breach of confidence
• Discovery through improper means
• Break ins, wire tapping, over flights
• Not reverse engineering
• Protection for software
• Companies sell copies of object code, keep source code secret
• Courts rule the public distribution of object code does not forfeit TS protection – so long as source code is hard to reverse engineer
• Appropriate to an era in which software is custom-made for large commercial customers
• Weaknesses
• Gradual improvement of de-compilers
• No protection against ‘piracy’ of object code
• Limited protection against ‘downstream’ consumers
• Consumers demand for access to source code

Contracts

• Shrinkwrap licenses
• Prohibition of actions you may take with the product
• Are these lawful under contract law?
• Challengeable under common law grounds
• Or pre-empted by patent/trademark law
• Pro-CD v. Zeidenberg (CA7 1997)
• Copyright law does not preempt state contract law
• Bowers v. Baystate Tech (CAFC 2003)
  Copyright law does not preempt state contract law used to enforce shrink wrap license restriction on reverse engineering.
• UCITA
• Only in two states

Copyright

• 1964 Register of Copyrights announces willingness to register software
• 1964-77 – 1,205 programs registered – 80% IBM/Burroughs
• 1978: CONTU recommends full copyright protection for software
• 1980: Congress adopts
• 1991 : EC directive –
• 194: TRIPS Arc. 10(1)
• Computer programs shall be protected as literary works under the Berne Convention
• Basic protection
• Reproduction
• Derivative works
• First distribution
• Public performance
• Public display
• Exceptions
• Fair use
• Merger (only expression of idea is protected)
• Essential or archival copying
• Apple v. Franklin (CA3 1983)
• Franklin copied Apples OS
• Apple Brings suit
• Franklin responds – we only copied OS as that was the only way to embody idea of Apple OS.
• Court didn’t buy that argument

Zittrain

Just heard of various forms of protection for software.

Copyright for software or what do the Lion King and copyright have in common?

Battles going on as to how creative works are treated/protected.

British recommended school children place copyright mark on the work to gain respect for copyrights.

Talks of Unix story

AT&T Unix 1969 –

            Berkley got 1974 BSD Unix

            Which formed the bases of Solaris (he unveils the family tree – yikes!)

1984 Consent Decree to breakup AT&T

Richard Stallman create GNU project (also now the Free Software Foundation) www.gnu.org

GNU is not Unix - -just acts like it.

2004 – A taxonomy of software

CopyLeft

1. Must release source code
2. Terms must be those of GPL
3. Licensees can still charge for physical copies of the work

Development Model

·         Open – public comes to gather and raise the barn

Talks about evangelizing open sw by changing the marketing tact – don’t use radical language – use business model language

Major Disputes in Software

Proprietary sw depends on copyright in its business model. 

But, the law was evolving

Dimensions of Diminishing copyright protection

·         Reverse Engineering

o       Strategies for allowing access from apps to OS

§         Free (APIs published)

§         License fees (game manufacturers)

·         Accolade reverse engineered Sega’s lockout program

·         This behavior is deemed excusable ( a strain but excused)

·         Ineffective enforcement

o       Fisher points out a rough correlation between support for Gore and less piracy (hmmph – and the CEO’s of the software companies are donating Republican)

Zittrain

Proprietary system has had nagging doubts about effectiveness of copyright system. 

SCO v. IBM

SCO is now a “licensing” company… The lawyers run the show.

1986 – IBM does AIX

1993 – Novell takes Unix license from AT&T

1994 – Caldera started as Linux consultancy

1995 – SCO created (inherited Unix rights from Novell)

2001 – Caldera bought rights from SCO (which renamed itself) then Caldera took SCO name

SCO sued saying IBM poisoned GNU Linux

SCO believes that if you make a copy of sw to run it – well, then when you run it you are making an unauthorized copy.

So, based on that theory – SCO said Linux is unauthorized derivative.

SCO engaged in lawyerly things to collect.

Incentive was to drive up stock price.  They were not doing well as a software company.

Software Patents

Fisher

Copyright protections were weakening over time.

Patent law had been evolving since the 1970’s. 

Patents on processes and products.  (take a look at last year’s notes).

(I defer to Frank for the rest of this session)