Intellectual property can be defined as the rights the cre-ator of an original work (such as an invention or a book) has to control its reproduction or use. Developers of new computer hardware, software, and media content must be able to realize a return on their time and effort. This return is threatened by the ease with which programs and data on disks can be illicitly copied and redistributed. Several legal mechanisms can be used to deter such behavior.
Legal Protection Mechanisms
Intellectual property represented by the design of new hard-ware can be protected through the patent system. A patent gives the inventor the exclusive right to sell or license the invention for 20 years after the date of filing. The basic requirements for a device to be patentable are that it rep-resents an actual physical device or process and that it be sufficiently original and useful. A mere idea for a device, a mathematical formula, or a law of nature is not patent-able in itself. In computing, a patent can be given for an actual physical device that meets the originality and usefulness requirements. Software that works with that device to control a physical process can be part of the patent, but an algorithm is not patentable by itself.
In practice, however, the situation is much murkier and more problematic. Patents are viewed as a key stra-tegic resource (and financial asset) by companies such as IBM (which holds 40,000 patents and earns $1 billion a year by licensing them), and in the decade between 1995 and 2005 the annual number of patent applications filed rose 73 percent to 409,532. This has led to a considerable backlog in the Patent Office, and critics suggest that many patents are granted without being properly examined, such as for the existence of “prior art” (previous uses of similar technology).
Large companies often complain that so-called patent trollers obtain patents that may be relevant enough to cause infringement or invalidate a later patent, and then threaten the company with litigation if they are not paid. (Small patent holders in turn complain that large companies some-times ignore or underpay them because they assume that the patent holder cannot afford litigation.) Many compa-nies, including eBay, Research in Motion (maker of the Blackberry PDA), and Microsoft have been embroiled in patent suits.
Major computer companies such as Google, IBM, and Apple are supporting the Patent Reform Act of 2007. The law would tighten the standards for getting a patent and make it easier to challenge the patent later.
As of mid-2008 the bill remained stalled in the Senate. Meanwhile, a federal court had overturned new patent reg-ulations that sought to streamline the application process by reducing the amount of supporting materials submitted.
Because of these restrictions, most software is protected by copyright rather than by patent. A computer program is considered to be a written work akin to a book. (After all, a computer program can be thought of as a special type of narrative description of a process. When compiled into exe-cutable code and run on a suitable computer, a program has the ability to physically carry out the process it describes.)
Like other written works, a program has to be suffi-ciently original. Once copyrighted, protection lasts for the life of the author (programmer) plus 70 years. (Works made for hire are covered for 95 years from first publication or 120 years from creation.) Given the pace of change in com-puting, such terms are close to “forever.” While not strictly necessary, registration of the work with the U.S. Copyright Office and the inclusion of a copyright statement serve as effective legal notice and prevent infringers from claiming that they did not know the work was copyrighted.
Content (that is, text or multimedia materials) presented in a computer medium can be copyrighted in the same way as its traditional printed counterpart. However, in 1996 the U.S. Supreme Court declared that a program’s user interface as such could not be copyrighted (see Lotus Development Corp. v. Borland International, U.S. 94-2003).
Computer programs have also received protection as trade secrets. Under the Uniform Trade Secrets Act, as adopted in many states, a program can be considered a trade secret if gaining economic value from it depends upon it not being generally known to competitors, and that “rea-sonable effort” is undertaken to maintain its secrecy. The familiar confidentiality and non-disclosure agreements signed by many employees of technical firms are used to enforce such secrecy.
First Amendment Issues
In a few cases the government itself has sought to limit access to software, citing national security. In the 1996 case of Bernstein v. U.S., however, the courts ultimately ruled that computer program code was a form of writing pro-tected by the First Amendment, so government agencies seeking to prevent the spread of strong encryption software could not prevent its publication.
However, First Amendment arguments have been less effective in challenging private software protection mecha-nisms. In 2001 a U.S. District judge ruled that Princeton University computer scientist Edward Felten and his col-leagues had no legal basis to challenge provisions of the Digital Millennium Copyright Act (DMCA). The scientists had claimed that a letter from the Recording Industry Asso-ciation of America (RIAA) had cast a “chilling effect” on their research into DVD-protection software by threatening them with legal action if they published academic papers about copy protection software used by online music ser-vices. The RIAA had withdrawn its letter, and the courts ruled there was no longer anything to sue about. Critics of the decision claim that it still leaves the academics in a sort of legal limbo since there is no guarantee that they would not be sued if they published something.
In another widely watched case the U.S. Court of Appeals in New York affirmed a ruling that Eric Corley, editor of the hacker magazine 2600 could not publish the code for DeCSS, a program that would allow users to read encrypted DVD disks, bypassing publisher’s restrictions. The Court said that the DMCA did not infringe upon First Amendment rights. This decision would appear to conflict with Bernstein, although the latter has to do with govern-ment censorship, not copyright. The Supreme Court is likely to hear one or more computer-related copyright cases in the years to come.
Fair Use and Copy Protection
Although the purchase of software may look like a simple transfer of ownership, most software is accompanied by a license that actually grants only the right to use the pro-gram under certain conditions. For example, users are typi-cally not allowed to make copies of the program and run the program on more than one computer (unless the license is specifically for multiple uses). However, as part of “fair use” users are allowed to make an archival or backup copy to guard against damage to the physical media.
Until the 1990s, it was typical for many programs (par-ticularly games) to be physically protected against copy-ing (see copy protection). Talented hackers or “software pirates” are usually able to defeat such measures, and “bootleg” copies of programs outnumber legitimate copies in some Asian markets, for example (see software piracy and counterfeiting). Copy protection and/or encryption is also typically used for some multimedia products such as DVD movies.
Challenges of New Media
By the mid-2000 decade, the biggest intellectual property battles were not about esoteric program codes but rather revolved around how to satisfy the ordinary home consum-er’s appetite for music and video while preserving produc-ers’ revenues. Increasingly, music and even video is being downloaded rather than being bought in commercial pack-aging at the local store.
In the Sony v. Universal case (1984) the Supreme Court ruled that manufacturers of devices such as VCRs were not liable for their misuse if there were “substantial non-infringing uses”—such as someone making a copy of legally possessed media for their own use. However, in 2005 the Supreme Court ruled that Grokster, a decentralized file-sharing service, could be held liable for the distribution of illegally copied media if it “actively induced” such copying.
By 2006 media industry lobbyists (particularly the Recording Industry Institute of America, or RIAA) were promoting a number of bills in Congress that would fur-ther restrict consumers’ rights to use media. Such mea-sures might include requiring that devices be able to detect “flagged” media and refuse to copy it (see digital rights management), as well as adding stricter provisions to the Digital Millennium Copyright Act (DMCA). These mea-sures are opposed by cyber-libertarian groups such as the Electronic Frontier Foundation and consumer groups such as the Home Recording Rights Coalition.
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