Intellectual property law
From Blindside
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[edit] What is it?
Intellectual property law has generally been written on the basis of two balancing principles. First, that creators and inventors are valuable to society and need to be encouraged with financial incentives. Second, that their creations and inventions are valuable to society and need to be accessible for others to build upon and use. On the basis of the first principle, intellectual property law, in the form of copyright, patents, trademarks, and designs, grants the creator/inventor or that person's heirs or assigns a monopoly in the creation or invention during which to profit from it. On the basis of the second, IP law limits that monopoly by making it temporary.
The 20th century saw a number of changes to intellectual property in both practice and law. The concentration of media into large, multinational conglomerates means that the largest proportion of copyrighted materials are now owned by a relatively small number of very large companies. Creators (including photographers) who used to retain copyright in the work they created and merely licence specific rights to publishers and others are increasingly forced to sign away all rights, transferring their traditional right to exploit their work further to those companies. The application of patent law has become broader, incorporating patents on software (specifically banned in a number of European countries unless the software is part of a device that has an effect on the physical world). The term of copyright has been extended multiple times. A work copyrighted in 1970 had to be registered to receive protection for an initial term of 28 years; active renewal was required to extend that term for another 28 years. A work created today is automatically protected for the life of the author plus 70 years – or more than a century for corporations. Intellectual property specialists like to call copyright term extensions after the Disney character Mickey Mouse. It's only partly a joke because, whether by coincidence or otherwise, such extensions tend to be passed by the US Congress whenever Mickey Mouse is in danger of falling into the public domain.
As is well documented, both copyright and software patents have become extremely contentious issues in relation to IT and digital media, copyright because of the ease with which digital media can be copied, modified, combined, and distributed, and patents because of their impact on software development. While larger technology companies such as IBM, Microsoft, Siemens, and Nokia all publicly support software patents, many, if not most, software developers oppose them because in writing new software it is generally impossible to tell if a portion of code infringes an existing patent. Opponents of the widening compass of intellectual property law argue that the balance between the public's right of access and the right of exploitation by the inventor/creator/rightsholder has tipped too far in favour of rightsholders and that these organisations are attempting to use intellectual property law to stifle competition or free speech.
In addition to the law, rightsholders continue to attempt to develop technologies that will force digital media to conform to the restrictions inherent in physical media. The primary such technology is digital rights management, which has its own problems for information assurance, and therefore its own page.
Several organisations are attempting to use copyright to guarantee freedom of reuse, modification, and distribution instead of to restrict it. These include the Free Software Foundation, whose leader, Richard Stallman, pioneered the General Public License (GPL), variants of which are used to protect open source software from being subsumed into commercial products, and Creative Commons. Founded by a group including Stanford law professor Lawrence Lessig, Creative Commons makes it easy for online users to create a clearly understandable licence that can be posted alongside the content, for example one that grants the right to make derivative works for non-commercial use.
[edit] Impact & Maturity assessment
Impact: 3 Maturity: 3
[edit] Information Assurance issues
There are five ways in which intellectual property law as it's presently drafted and practiced may destabilise information assurance.
First: rightsholders' legitimate rights may be violated as new technology makes it cheaper, faster, or easier to do so. For example: counterfeit DVDs are extensively distributed and sold over online auction sites.
Second: consumers' and creators' legitimate rights may be violated by overreaching copyright actions. For example: the Science Fiction Writers Association of America, on behalf of the estates of writers Isaac Asimov and Robert Silverberg, recently sent a list of material it wanted taken down under the Digital Millennium Copyright Act (1998) to several etext file-sharing services. The list included works that were not written by Asimov or Silverberg and were being shared legally with the full permission of their owners whose own representatives' efforts were disturbed by the SFWA's action.
Third: end users may find themselves under legal threat despite having acted in good faith. For example: in 2004, when SCO first brought its lawsuit against IBM, claiming that code in Linux violated its patents and/or copyrights in its version of the UNIX operating system, the company sued Linux users such as DaimlerChrysler and AutoZone.
Fourth: laws enacted to protect the interests of rightsholders may be abused. For example, the Chilling Effects Web site tracks Cease and Desist notices sent to the owners of Web sites under the DMCA, many of which contained misrepresentations of fact. In a recent case, the psychic claimant Uri Geller demanded that the Google-owned video service YouTube remove video clips posted by critics, citing the takedown rules under the DMCA. In fact, Geller's company owned only eight seconds of the 13 minutes of footage in the clip, which came from a PBS Nova programme, "Secrets of the Psychics". The EFF is suing Geller for violating the DMCA.
Fifth: users may infringe intellectual property rights without knowing they're doing so. For example, early 2007 saw a rash of notices sent out by the two main photography agencies, Corbis and Getty to Web site owners, mostly small businesses, across the UK claiming copyright in photographs used on their sites and demanding payment of up to £1,500. In some cases the pictures at issue were minor details such as the image of a shopping cart; in others the pictures had been chosen by a Web developer who may or may not have known the images' status but in any event did not communicate it to their client. In most cases, the site owners would not have chosen those images had they known; instead they would have turned to lower-cost royalty-free images.
The issue of greatest concern to government and its suppliers is likely to be the third of these. Software developers speak with great concern of "submarine patents"; that is, patents whose existence are unknown when they are writing software. This may occur because an application has been filed but the patent hasn't been granted yet, or because the description of the idea being patented seems to bear no relation to what the developer is working on. Software patents are of particular concern to the open source movement, which fears that commercial software companies will use patents to shut them down. For example, BT claimed in 2000 that it held a patent on the hyperlink and attempted to collected licensing revenues from a number of large Internet service providers. The language of the patent, however, never mentioned the Web; instead, it discussed creating cross-references in videotext pages like those used in its 1980s Prestel service (in 2002, the test case BT brought against the US service Prodigy was dismissed in a US court).
Recent years have seen an explosion of software patents, particularly from the US Patent Office, which began issuing such patents in 1994. Critics complain that many of these patents are "bad" – that is, that they should not have been issued because there is prior art, because the ideas contained in them are obvious, or because the patents are overbroad. While patents can be challenged and overturned (as was, for example, the Comptons multimedia patent), the litigation necessary to do so is extremely expensive and time-consuming. This is especially true in Europe, where a patent granted at the European level is automatically valid in all countries, but getting a patent overturned requires a separate challenge in each national court.
For end users of software there are therefore two key problems. They themselves could become liable for using software they bought in good faith. Or, a more likely scenario, a supplier could be shut down either legally or financially by third-party patent claims, leaving the end user without support. At least the first of these problems could be remedied with an international agreement to hold end users harmless in such cases.
[edit] Timescale
Now and continuing into the long-term.
[edit] Examples
Chilling Effects – a project of the Electronic Frontier Foundation and a number of US law schools including Harvard and Stanford. Repository of Cease and Desist notices.
Groklaw – comprehensive archive of documentation on the SCO/IBM lawsuits.
BT loses hyperlink patent case
A picture paints a thousand invoices, by Wendy M. Grossman, Guardian, February 1, 2007.
[edit] Comments (attributed)
"The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one: it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures." Thomas Babington Macaulay, opposing copyright extension in the House of Commons, February 5, 1841.
"I like that extension of copyright life to the author's life and fifty years afterward. I think that would satisfy any reasonable author, because it would take care of his children. Let the grand-children take care of themselves…I am aware that copyright must have a limit, because that is required by the Constitution of the United States…I am quite unable to guess why there should be a limit at all to the possession of the product of a man's labor. There is no limit to real estate." Samuel Clements (who wrote under the pseudonym Mark Twain), arguing for copyright term extension before a US Congressional committee, December 6, 1906.
"Free as in free speech, not free beer." Richard Stallman, on the meaning of the "free" in "free software".
[edit] Organisations
Foundation for a Free Information Infrastructure – lobbying organisation opposing software patents. Its Web site includes
International Federation of the Phonographic Industry (based in London)
Motion Picture Association of America
Recording Industry Association of America
UK Intellectual Property Office
[edit] Documents & research papers
Letting Loose the Light (PDF), by Marc Stefik, Xerox PARC, October 1996. The original proposal for the technology that has become known as "digital rights management".
The Copyright Grab, by Pamela Samuelson. Wired, January 1996.
The Wealth of Networks: How Social Production Transforms Markets and Freedom, by Yochai Benkler, Yale University Press, 2006. Also downloadable under a Creative Commons licence.
[edit] Experts (academic, practitioner)
Cory Doctorow – American science fiction writer and copyright activist
Lawrence Lessig – Stanford law professor specialising in intellectual property law for the digital age
Pamela Samuelson – UC Berkeley law professor and McArthur award-winning scholar on copyright issues
[http://www.stallman.org Richard Stallman – McArthur award-winning campaigner and thinker on free software and digital freedoms
Jonathan Zittrain – Professor of Internet Governance and Regulation, Oxford Internet Institute
