layout: true <footer> <p class="left">@CraigBuchek</p> <p class="right">http://craigbuchek.com/intellectual-property</p> </footer> --- class: title, middle, center # Intellectual Property # and Licensing ## A Primer for Web Developers  ??? * Welcome! * I'm Craig Buchek * I've been doing web development of various kinds since about 1995 * I learned HTML in about 1995 * Mostly Ruby and Rails since 2006 * I ran the STLLUG for many years * My interest in GNU/Linux led me to learn a lot * Including about intellectual property and licensing * My Twitter handle is there in the lower left * You can tweet at or about me * You can follow along at the URL in the lower right * Hit `P` to see presenter notes --- # IANAL * I Am Not A Lawyer * This is not legal advice ??? * Standard disclaimers * If you need legal help, contact a lawyer --- class: middle <blockquote> <p> He who receives an idea from me, receives instruction himself without lessening mine as he who lights his taper at mine, receives light without darkening me. </p> <cite>— Thomas Jefferson, 1813</cite> </blockquote> ??? * The Founding Fathers spent quite a bit of time worrying about intellectual property * Ben Franklin had many inventions, but never patented them * Franklin stove * Lightning rod * Bifocal glasses --- # Intellectual Property * Copyright * Trademark * Patent * Sometimes abbreviated as "IP" ??? * These are the 3 primary types of IP * We'll cover each of these in more detail --- # Intellectual Property * Trade secret * Moral rights * Trade dress * Geographical indication * Certification marks * Indigenous intellectual property * Plant variety rights * Mask work * Database rights * Right of publicity ??? * There are quite a few "lesser" types of intellectual property * Moral rights * Right of attribution (or to be published anonymously or pseudonymously) * Right to the integrity of the work * Geographical indication * PDO, DOC, DOCG, DO, AOC, AOP * Like the right to call your sparkling wine "champagne" * Or "cognac", "Asiago cheese" * Related to collective trademark * Certification marks * Like "UL Listed" or "Energy Star" * Mask work is for electronic circuit designs --- # Intellectual "Property" * Physical property is rivalrous * Intellectual works are non-rivalrous * A copy doesn't directly affect the value of the original ??? * Property is not a great analogy for intellectual property * "non-rivalrous" means it can't be "used up" * This is what the Thomas Jefferson quote was referring to --- # Work For Hire * Work created by an employee as part of the employee’s regular duties * Any or all of the copyright owner’s exclusive rights can be transferred * Any or all of the patent owner’s exclusive rights can be transferred --- class: transition, copyright # Copyright --- # Copyright * Most "works" fixed in a tangible format * Authorized by the US Constitution * Majority of this talk will cover copyright * And licensing of copyrighted works ??? * See [Title 17](https://www.law.cornell.edu/uscode/text/17) of the US Code * Fairly readable --- # History of Copyright * Wasn't really necessary before the printing press * Stationers' Company, 1557 (England) * Publishers' monopoly * Statute of Anne, 1710 (Great Britain) * 14-year term, possible 14-year extension * US Constitution, 1787 * Copyright Act of 1790 (US) ??? * Stationers' Company was a guild of publishers * Received a royal charter * Had to register the publication * Copyright applied to the publisher * Statute of Anne * Copyright applied to the author * Had to register the publication * Had to provide a copy to the royal library or a university library * Extension was only possible if you were still alive * Copyright Act of 1790 * Copied almost verbatim from the Statute of Anne * Added maps and charts as copyrightable --- class: middle <blockquote> <p> The Congress shall have power [...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries </p> <cite>— US Constitution, Article I, Section 8, Clause 8</cite> </blockquote> ??? * The "Copyright Clause" or "Copyright and Patent Clause" * One of the "enumerated powers" of Congress --- # Copyrightable Works * Literary works * Musical works (and lyrics) * Dramatic works * Pantomimes and choreographic works * Pictorial, graphic, and sculptural works * Motion pictures and other audiovisual works * Sound recordings * Architectural works ??? * From https://www.copyright.gov/circs/circ01.pdf --- # NOT Copyrightable * Titles, names, short phrases, slogans, URLs * May be trademarked * Ideas, procedures, methods, processes, principles, discoveries * May be patented * Familiar symbols or designs * Typefaces, fonts, and lettering * Layout, formatting, design * Blank forms * Time cards, scorecards, address books, date books * Recipes, listings of ingredients or contents ??? * From https://www.copyright.gov/circs/circ33.pdf --- # Copyright Rights * Make copies of the work * Prepare derivative works * Distribute copies of the work to the public * Sale or other transfer of ownership * Rental, lease, or lending * Perform the work publicly * Display the work publicly * Transmit the work publicly ??? * These rights are "exclusive" * Only the copyright owner has them * The copyright owner can authorize others to exercise these exclusive rights * Derivative works are what we usually deal with as software developers --- # Copyright Length * Copyright Act of 1790 * 14 years + potential 14-year extension * Copyright Act of 1831 * 21 years + potential 21-year extension * Copyright Act of 1909 * 28 years + potential 28-year extension * Copyright Act of 1976 * Life of the author + 50 years * 75 years for works for hire * Copyright Term Extension Act of 1998 * Life of the author + 70 years * 95 years for works for hire ??? * Copyright terms have increased over the years * There's a theory that says that the Micky Mouse copyrights will never expire * It was first published in 1928 * Disney is said to "own" several Congress members * Ironically, modern software probably deserves a *shorter* term * Think of all the software written in the 1980s that no longer has any commercial value * Keep in mind that the *purpose* of copyright is to make works available to the public --- # Copyright Process * Copyright exists from the moment the work is created * "Fixed in tangible form" * Copyright notice is optional * Copyright symbol, owner, year, "All rights reserved" * Registration is optional * Mandatory deposit ??? * Before 1989, copyright statement was *required* * Registration is required if you want to file an infringement lawsuit * Registration establishes _prima facie_ evidence of the validity of the copyright * "prima facie" is Latin for "at first sight" * It means "accepted as correct until proved otherwise" * If within 5 years of publication * Mandatory deposit requires sending 2 copies to the Library of Congress * Within three months of publication * Exceptions for online-only electronic works (among others) * See https://www.copyright.gov/circs/circ07d.pdf --- # Fair Use * Permitted use of copyright-protected works in certain circumstances * Purpose and character of the use * Whether used for commercial, non-profit, or educational purposes * The nature of the copyrighted work * Amount and substantiality of the portion used in relation to the work as a whole * The effect of the use upon the potential market for or value of the copyrighted work ??? * Four factors are considered to determine "fair use" * These come from Section 107 of the Copyright Act --- class: transition, trademark # Trademark --- # Trademark * Names of companies and products * Phrases * Logos, sounds, colors, smells, etc. ??? * Can't be just a description of the item * Service marks * No expiration * As long as the mark is still in use --- # History of Trademark * Trademark Act of 1870 (US) * Trademark Act of 1881 (US) ??? * Trademark Act of 1870 was struck down by the Supreme Court * Because it tried to be an extension of the copyright clause * Trademark Act of 1881 was based instead on the commerce clause --- # Trademark Purpose * Reduce confusion in the marketplace * Protect consumers from fraud * Distinguishing goods and services of one business from those of others ??? * Trademark must not be a generic or descriptive term --- # Trademark Rights * Exclusive use of the mark * In relation to the products or services for which it is registered * In some cases for unrelated products or services * May be limited in territory * Licensing others to use the mark * Does not prevent "fair use" * Using the mark to refer to the actual product or company ??? * Fair use allows you to compare yourself to the competition in advertisements * Using someone's trademark in your domain may be an issue * If you're using it to compete and cause confusion * Not if you're using free speech to complain about a company --- # Trademark Process * Use the mark in the marketplace (™️) * Registration with USPTO (®) * Review by USPTO * Publication for opposition --- # Trademark Erosion * Trademark can be lost if not used * Trademark can be lost if not defended from dilution ??? * Trademarks will typically expire after 3-5 years of non-use * https://en.wikipedia.org/wiki/List_of_generic_and_genericized_trademarks * Trademarks that were lost due to genericization: * Aspirin * Dry ice * Laundromat * Cellophane * Trampoline * Dumpster * Zipper * Trademarks in jeopardy of being lost due to genericization: * Xerox * Kleenex * Jacuzzi * Crock-Pot * Ping Pong * Thermos * Velcro --- class: transition, patent # Patent --- # Patent * Innovative inventions, methods, processes * Authorized by the US Constitution * Must be novel, useful, and non-obvious * Software patents are a legal minefield * Recent rulings have lessened scope of some patents --- # Patent Purpose * Promote the progress of science and useful arts * Give financial incentives for R&D * Give a limited-time monopoly * In exchange for disclosing the invention to the public --- # Patent Rights * Exclude others from making, using, selling, or importing the invention * Ability to license to others * Limited to 20 years, in most cases ??? * Note the "using" there --- # Patent Process * Write up description of how to make and use the invention * Must provide sufficient detail to replicate * By someone "skilled in the art" * One or more "claims" * Covers the scope of the patent * Review by a patent examiner * Assesses prior art, obviousness, utility * This will likely take a long time * Yearly renewal fees * You'll probably want to get help with this process ??? * "First to file" * Graham-Bell and the telephone patents * Unless there's "prior art" * "prior art" = public information that's relevant to a patent's claim of originality * Can be in any form * Must exist before the patent application date * If you want to write up your own patent application, real the Nolo Press books * Will likely cost upwards of $10k --- class: transition, licensing # Licensing --- # No License * Copyright law applies * You can use it if you have a copy * If you've purchased it * If you are given a copy legally * You cannot give a copy to anyone * Except to sell your single copy (First Sale doctrine) * You cannot make copies * Except for archival/backup purposes * You cannot copy (substantial) portions * You cannot make modifications ??? * Not 100% clear if you can make modifications to your own copy --- # Free Software Definition * The freedom to run the program, for any purpose (freedom 0) * The freedom to study how the program works, and adapt it to your needs (freedom 1) * Access to the source code is a precondition for this * The freedom to redistribute copies so you can help your neighbor (freedom 2) * The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3) * Access to the source code is a precondition for this. ??? * http://www.gnu.org/philosophy/free-sw.html --- # Open Source Definition * Similar in purpose (and implementation) to Free Software Definition * Free Redistribution * Source Code * Derived Works * Integrity of The Author's Source Code * No Discrimination Against Persons or Groups * No Discrimination Against Fields of Endeavor * Distribution of License * License Must Not Be Specific to a Product * License Must Not Restrict Other Software * License Must Be Technology-Neutral ??? * http://www.opensource.org/docs/osd --- # Open Source v. Free Software * Free Software emphasizes freedom * Open Source emphasizes low cost, flexibility, control * Term was created to market Free Software * Freedom and control are 2 sides of the same coin * Other similar terms * Software Libre, Libre Software * FOSS * FLOSS * I will use the terms interchangeably --- # Open Source Licenses * Many exist * [OSI list](http://opensource.org/licenses/category) * Most programs use one of a small subset * GPL, LGPL * BSD, MIT, Apache --- # GPL * GNU General Purpose License * Read it - REALLY * [GPL text](http://www.gnu.org/copyleft/gpl.html) * Written in fairly readable English * Not too much legalese * Easy enough for non-lawyers to understand --- # BSD License * Berkeley Software Distribution * From BSD UNIX * University of California, Berkeley * Several variants * 4-clause (old, obsolete, had to recognize UCB) * 3-clause (newer standard) * 2-clause (removes clause about endorsement) * [BSD License text](https://opensource.org/licenses/BSD-3-Clause) --- # Other Licenses * [LGPL](https://www.gnu.org/licenses/lgpl-3.0.en.html) * Like GPL, but allows linking to non-GPL code * [MIT](https://opensource.org/licenses/MIT) * Basically the same as 2-clause BSD * [Apache License](http://www.apache.org/licenses/) * Similar to BSD license, but much longer * Has clauses pertaining to patents and trademarks * [Artistic License](http://www.perlfoundation.org/artistic_license_1_0) - most lenient, but vague * Sun, IBM licenses ??? * Apache license grants right to use patents * But not to use trademarks --- # Public Domain * Not a license, _per se_ * Author has NO rights to the work * Government-created works * Works whose copyright terms have expired * Controversy whether you can explicitly make something public domain * Creates a "commons" of works that anyone can build upon --- # Shared Source * Microsoft's attempt to blunt Open Source * Didn't work too well - doesn't grant enough to be useful * Microsoft now has 2 OSI-approved licenses * MSPL, MSRL * Microsoft now using a few Open Source licenses for some things * WIX installer * SQL Server Express * WPF * Power Toys * IronPython * Apache support * http://www.microsoft.com/opensource/ --- # Using Code * When using other code within your own, you create a derived work * Must have some sort of permission to create the derived work * Or to make copies of the derived work, at the very least * Must make sure you follow the license terms of the code you use * For GPL licensed code, you must make your code GPL as well * Unless you do not redistribute any copies * For BSD licenses, you need not make your own code BSD * Don't even have to make your code available * For practical reasons, most people contribute back --- # Combining Licenses * GPL license requires code you combine to be GPL * FSF keeps a [list of GPL-compatible licenses](http://www.fsf.org/licensing/licenses/index_html#SoftwareLicenses) * GPLv2 and GPLv3 have some [compatibility issues](http://www.gnu.org/licenses/gpl-faq.html#AllCompatibility) * BSD licenses allow you to use code under non-BSD licenses * Can be more restrictive * Some code can be dual licensed * Recipient can chose among 2 (or more) licenses * Licenses need not be compatible * But any external code used must be compatible with both --- # Not Just For Code * FLOSS-like licenses for other things exist * [GNU Free Documentation License](http://www.gnu.org/copyleft/fdl.html) * Generally not recommended any more * [Creative Commons](http://creativecommons.org) [licenses](http://creativecommons.org/about/licenses/) * This presentation is released under the CC-By license --- # Creative Commons * "Some Rights Reserved" * Recognizes importance of shared cultural artifacts * Creates a voluntary "commons" of creative works that can be used by others * Makes it easier to share and build upon the work of others * Provides licenses you can apply to your copyrighted works * Takes copyright laws into consideration --- # Creative Commons Licenses * Mix and match to fit your goals * Require attribution * Optional restrictions on commercial use * Optionally allow modifications * Optionally require modifications to be shared ??? * Several search sites allow searching for CC-licensed images * Google * Flickr * CC0 is effectively releasing into the public domain --- # Infringement Penalties * Actual damages * Potential for punitive damages, if you intentionally keep violating * Potential for statutory damages * Only if the work was registered with US Copyright Office * Within 3 months of publication * Injunction preventing you from distributing potentially infringing code * Profits you've made from the infringing material ??? --- # Summary * Using FLOSS has no restrictions/requirements * But commercial software usually does * You must follow terms of copyright law and licenses * If you distribute copies or make modifications * Open Source licenses give you additional rights * Commercial EULAs take rights away * GPL requires derivative works to remain free/open under GPL * BSD-like licenses allow use in closed commercial works --- # Shorter Summary * Using Open Source - no worries * Distributing Open Source - no worries * Modifying and distributing Open Source with source code - no worries * Mixing Open Source with proprietary extensions - talk to a lawyer * Unless the Open Source code is BSD or MIT * Then just ensure proper attribution --- # Further Exploration * Read the licenses - GPL, BSD, Microsoft EULAs * Read the copyright laws * Check out the [Copyright.gov](http://copyright.gov) materials --- # Resources * [US Copyright Office (Copyright.gov)](http://copyright.gov) * [FAQ](http://www.copyright.gov/help/faq/) * [Basics](http://www.copyright.gov/circs/circ1.html) --- # Presentation Info * http://craigbuchek.com/presentations * Copyright 2003, 2006, 2007, 2008, 2009, 2020 by Craig Buchek; Some Rights Reserved * This work is licensed under the [Creative Commons](http://creativecommons.org/) [Attribution License](http://creativecommons.org/licenses/by/3.0/)