CIS 2 Chapter 6 notes

Chapter 6:

1. What is Intellectual Property?

A. According to Webster's College Dictionary:

Intellect: "capacity for thinking and acquiring knowledge of a high or complex order"

Property: "that which a person owns."

Can one "own" the capacity for thinking and acquiring knowledge?

B. Why is intellectual property given legal
protection?

Its value comes from the ideas, creativity, skills, research, and labor of its creators, e.g., designing and developing a software program can take years of work and cost millions of dollars.

Intellectual property is intangible creative work embodied in a physical form, e.g., a novel, painting, or a database.

Intellectual property differs from physical property in that making a copy does not deprive its creator of its use; thus "theft" by copying is different from theft of physical property.

C. Examples of intellectual property: (quotes are from Webster)

Books, articles, plays, songs, works of art, movies, and software are protected by copyright, "the exclusive ownership of and right to make use of a literary, musical, or artistic work, protected by law for a specified period of time."

Some software is protected by patent, "the exclusive right granted an inventor to manufacture or sell an invention for a specified number of years." Patents differ from copyrights in that they protect the underlying idea of an invention, not just a particular expression or implementation of it; they prohibit anyone else from using the idea without authorization of the patent holder,
even if the other person independently came up with the same idea or invention.

2. Copyrights and Patents

A. US copyright law (page 167)

B. Exception: "Fair Use Doctrine" (page 171)

1. The purpose and nature of the use,
including whether it is for commercial purposes or nonprofit educational purposes.

2. The nature of the copyrighted work:
creative work, such as a novel, has more protection than factual work.

3. The amount and significance of the
portion used.

4. The effect of the use on the potential
market for or value of the copyrighted work. Uses that reduce sales of the original work are less likely to be considered fair.

C. Is copyright or patent more appropriate
protection for software? Or, should software have it's own separate type of legal protection?

First, what is the nature of a new kind of program: an invention or an idea, or is it a "writing," an expression of ideas, algorithms, techniques?

Second, what are the practical consequences of each choice in terms of encouraging innovation and production of new products?

Examples (page 168): VisiCalc, Stac, Microsoft, and Nintendo.

"look and feel" of software: VisiCalc and Lotus 1-2-3

3. History of Copyright Law

A. First US copyright law: 1790 - covered
books, maps, and charts.

B. Copyright act of 1909 - specified that an
unauthorized copy had to be seen or read visually. Piano rolls did not violate copyright.

C. 1960s - government began recognizing
copyrights for software and databases, although it did not mention them specifically.

D. 1976 and 1980 - copyright law revised to cover
software: appropriate literary works could be copyrighted "regardless of the nature of the material objects ... in which they are embodied." This covers film, tapes, discs, and cards.

E. 1982: High volume copying of records and
movies was made a felony.

F. 1992: making multiple copies of copyrighted
work "willfully and for the purposes of commercial advantage or private gain" became a felony offense.

Making or distributing 10 or more copies with retail value of more than $2,500 within 6 months is punishable by up to 5 years in jail. The copies can be of different programs (e.g., one copy each of 10 programs). Repeat offenders can get up to a 10-year jail sentence.

Lesser offenses (fewer than 10 copies) are punishable by up to a year in jail. Fines can be as high as $250,000.

What copying is permissible: 1 copy to install the software on a computer and one "archival" copy.

Some software licensing agreements allow a second copy to be used if only one copy is in use at a time.

4. What is Software Piracy? What does it cost?

A. 3 main categories of "software piracy:"

· Some businesses produce and sell unauthorized copies of popular software packages.

· Many businesses, organizations, and schools
buy one or a few copies of a software package and install it on dozens or hundreds of computers.

· People intentionally put copyrighted software
on computers accessible by modem for others to download. Some computer bulletin board systems exist almost exclusively for this purpose.

B. Software theft has 2 social costs:

1. Higher prices for legally sold copies

2. Less development of good software because it
reduces the return to software developers on their investment of time, creativity, and labor.
Result: less employment for programmers.

C. Copying for resale (page 175)

Hardware vendors sometimes load unauthorized copies of software onto a machine they are selling and charge the buyer a price below the price of legal copies.

Counterfeiting of brand name products is very common in Asia: from blue jeans to expensive watches to software.

D. Other examples of illegal copying of software:

In-house copying by organizations

Freebies for friends

5. Protecting Software Copyrights

Technical solutions:

· Copy protection on software
· Serial numbers registered with manufacturer
· Expiration dates on sample versions
· Cookies

Enforcement and Education:

Software Publishers Association: "Don't copy that floppy"

Markets and management:

· Different pricing policies: network metering of
usage.

· Academic and quantity discounts

· Demo copies

Abandon Software Copyright?

6. Copyright in Cyberspace

A. Bulletin Board Services: BBSs - freeware and
shareware vs commercial software

Is a BBS operator legally liable for actions taken by subscribers?

1) The BBS operator knowingly and
willfully operates the board for illegal purposes.

2) The operator is aware of the infringing
material on the BBS but does nothing to eliminate or discourage it.

3) The operator runs a large BBS for
legitimate purposes, but some users upload and trade copyrighted software.

B. Literary and Artistic Material in Cyberspace

Disney characters, Star Trek items, Digital cable music, photographs and paintings

7. Proposed Legislation:

The government's 1995 report, "Intellectual Property and the National Information Infrastructure" recommends expanding copyright protection, ... implicitly removing some rights such as virtually all fair use rights. It would extend copyright owners' control to all digital copies, including temporary files stored in a computer's memory and copies necessary for transmission of files.

This report puts the responsibility for enforcement of copyright law on the online services, holding them legally liable for copyright infringement by subscribers.

Questions:

Is it possible for Internet Service Providers (ISPs) to monitor all traffic to find violators?

If they do catch someone, can they legally disable the person's computer by deleting files from its hard disk?