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Published on February 27, 2008

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Intellectual Property Issues For Information Technology Professionals Presented to: Organizational Systems Research Association 23rd Annual Conference, Pittsburgh, Pennsylvania February 6, 2004 :  Intellectual Property Issues For Information Technology Professionals Presented to: Organizational Systems Research Association 23rd Annual Conference, Pittsburgh, Pennsylvania February 6, 2004 Franklin B. Molin © 2004 Kirkpatrick & Lockhart LLP Overview:  Overview General intellectual property law principles Copyright law and works-made-for-hire Business software copyrights The SCO Group v. IBM General Intellectual Property Law Principles:  General Intellectual Property Law Principles Subject Matter Terms of Art:  Subject Matter Terms of Art Copyrights – Works Trademarks – Marks Patents – Inventions Trade Secrets, Confidential Information, and Know-How Gross Generalizations:  Gross Generalizations Copyrights – Creative works (e.g. art and software) Trademarks – Brand names Patents – Technology Trade Secrets – Technology and business information Patents & Copyrights :  Patents & Copyrights Article I, Section 8, Paragraph [8] “Congress shall have Power: To promote the Progress of Science and the Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” Trademarks :  Trademarks Article I, Section 8, Paragraph [3] Commerce Clause “The Congress shall have Power: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” General Patent Principles:  General Patent Principles Statute: 35 U.S.C. section 1 et seq. What can be protected: Process, machine, article of manufacture, or composition of matter, business method, design for an article of manufacture Right granted: Right to exclude others from making, using, selling, offering to sell, and importing the claimed invention General Patent Principles:  General Patent Principles Term = 20 years from filing date Invention must be: (1) useful/utility, (2) new/novel, and (3) unobvious Patent issues after substantive examination. General Trademark Principles:  General Trademark Principles Statute: 15 U.S.C. section 1051 et seq. What can be protected: Word, design, slogan, color, sound, trade dress Must use the mark in commerce to gain rights No merely descriptive or generic words Right granted: Right to exclude others from using the mark or colorable imitations General Trademark Principles:  General Trademark Principles Measure of infringement: The use of the mark on the goods or services causes a likelihood of confusion on the part of the relevant consumers Term: potentially forever Registration optional and recommended Application is substantively examined General Copyright Principles:  General Copyright Principles Statute: 17 U.S.C. section 101 et seq. Subject Matter of Copyright:  Subject Matter of Copyright Works of authorship fixed in a tangible medium of expression Original creative expression Includes: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works, sound recordings; and architectural works. Copyright Does Not Protect :  Copyright Does Not Protect 1. Ideas. 2. Procedures, processes, systems, methods of operation, concepts, principles, or discoveries. 3. Works of the U.S. government. 4. Works with no expressive features. The work must have minimal creativity. Copyright Does Not Protect:  Copyright Does Not Protect 5. Words and short phrases such as titles, product names, and slogans. 6. Facts. However, the original selection, coordination, or arrangement of such facts can be protected. 7. Merger of the idea and the expression. 8. Scenes-a-faire – items of expression that are commonly included in any expression of a particular topic. Exclusive Rights in Copyrighted Works:  Exclusive Rights in Copyrighted Works 1. To reproduce the work; 2. To prepare derivative works based on the work; 3. To distribute copies of the work; 4. To perform the work publicly; 5. To display the work publicly; and 6. To perform a sound recording publicly by means of a digital audio transmission. Copyright Infringement :  Copyright Infringement 1. A valid copyrighted work. 2. Copying the protectable expression in the copyrighted work. 3. Whether in the eyes of the average lay observer the works are substantially similar as to the protectable elements. Remedies for Copyright Infringement :  Remedies for Copyright Infringement An injunction prohibiting the infringer from copying the work. Actual damages. Profits of the infringer. Statutory damages in the range of $750 to $30,000. Up to $150,000 if willful. Costs and attorney’s fees. Copyright Fair Use Preamble:  Copyright Fair Use Preamble “. . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research . . .” Copyright Fair Use Four Non-exclusive Factors :  Copyright Fair Use Four Non-exclusive Factors 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. “Works Made For Hire”:  “Works Made For Hire” Employees Works made by traditional employees Works made by “employees” under CCNV v. Reid Independent Contractors Specially ordered or commissioned work Written agreement that it is a work made for hire Specified categories of works Copyright Term:  Copyright Term Life of the author plus seventy (70) years Works Made For Hire, Anonymous, and Pseudonymous Works – 95 years from publication, or 120 years from creation, whichever expires first Copyright Registration:  Copyright Registration Registering File application with the U.S. Copyright Office Deposit copies of the work $30 Benefits Access to federal courts Prima facie evidence of validity Statutory damages Attorney’s fees Copyright Notice:  Copyright Notice © 2004 Franklin B. Molin © 2004 Kirkpatrick & Lockhart LLP Business Software Copyrights:  Business Software Copyrights Issue: Unlicensed copies of commercial software loaded onto company computers Business Software - Background:  Business Software - Background Examples of business software Microsoft Symantec Adobe Thirty-nine percent of the world’s software is unlicensed Business Software:  Business Software Business Software Alliance – BSA http://www.bsa.org/usa/ Association of popular business software manufacturers Members include: Microsoft Symantec PeopleSoft Intel IBM Adobe Business Software:  Business Software BSA is very vigilant about enforcing against the unlicensed copies of its members’ software on business computers They may find out for instance through a disgruntled employee Will doggedly pursue until they reach a satisfactory resolution Business Software:  Business Software Click on BSA’s “News Room” and you'll see their press releases publicizing the settlements they have extracted out of various companies From a few thousand dollars to many hundreds of thousands of dollars Business Software - What To Do:  Business Software - What To Do Properly license all software Create awareness about copying of software onto company computers Information Systems should set up measures to prevent unlicensed copying, such as creating proper channels for installing new software, limits on downloading ability of individual users (administrative rights), and periodic software inventories SCO Group v. IBM :  SCO Group v. IBM SCO Group v. IBM - Background:  SCO Group v. IBM - Background UNIX Proprietary operating system AT&T AT&T Technologies Novell Caldera (formed by Novell founder, later acquired Santa Cruz Operations, Inc.) The SCO Group SCO Group v. IBM - Background:  SCO Group v. IBM - Background UNIX Licensed over the years to many companies and slightly modified to create many “flavors” IBM-Unix, HP-Unix, Sun-Unix, SGI-Unix, and SCO-Unix (OpenServer, for Intel Chips) OS of choice for virtually all fortune 1000 companies SCO-IBM – Project Monterey (for use on Intel Chip) SCO Group v. IBM - Background:  SCO Group v. IBM - Background Linux Open source operating system Linus Torvalds (now with Open Source Development Labs) GNU Organization – General Public License (GPL) – No royalties – “Copyleft” IBM – Substantial contribution to Linux Linux vendors – Red Hat and SuSE Linux Novell purchasing SuSE Linux SCO Group v. IBM - Background:  SCO Group v. IBM - Background Linux Users Munich, Germany Hewlett-Packard Sun Microsystems TiVo products Motorola Many internet servers SCO Group v. IBM – Case:  SCO Group v. IBM – Case Caldera Systems, Inc. d/b/a The SCO Group v. International Business Machines, Inc. March 6, 2003 Utah State Court Counsel for SCO - David Boies – led the U.S. government case against Microsoft SCO Group v. IBM – Case:  SCO Group v. IBM – Case Claims Misappropriation of trade secrets Unfair competition Interference with Contract Breach of Contract No copyright claims! SCO Group v. IBM – Case:  SCO Group v. IBM – Case Asking for $3 Billion Removed to Federal Court – March 2003 IBM Counterclaim against SCO - August 2003 Motion To Compel – To be heard February 6, 2004 SCO Group v. IBM - History:  SCO Group v. IBM - History May 2003 – SCO sends letters to large Linux users $699 license to use Linux on a single-processor server $199 license to use on personal computers December 2003 – SCO sends more letters to a few hundred (ultimately to be 3,000) UNIX licensees asking for certain information about their use of Linux SCO Group v. IBM – Red Hat:  SCO Group v. IBM – Red Hat Red Hat v. The SCO Group August 4, 2003 Red Hat is asking the court for a declaratory judgment that there is no infringement of trade secrets or copyright by Red Hat using Linux Asserting false advertising, unfair competition, deceptive trade practices, trade libel, and disparagement SCO Group v. IBM – Defense Fund:  SCO Group v. IBM – Defense Fund Open Source Development Labs (a Linux corporate software consortium) has set up a defense fund to protect users of Linux For Linux users who are sued for Linux issues common in the industry, not for issues particular to that user or company IBM, Intel, MontaVista Software and others have contributed up to $3 Million (goal is $10 Million) Hewlett-Packard indemnifies its Linux customers against SCO Group actions SCO Group v. IBM – MyDoom:  SCO Group v. IBM – MyDoom MyDoom worm – comes as an email, copies itself, opens a backdoor, and installs a keystroke reading program 1 in 12 emails Open source fan? – MyDoom targets Microsoft Windows, and it launched a successful denial of service attack on the SCO Group’s website SCO Group v. IBM – Novell:  SCO Group v. IBM – Novell SCO Group v. Novell Novell was prior owner of UNIX version in question August 4, 2003 letter from Novell to SCO “We dispute SCO’s claim to ownership . . . to copyrights in UNIX System V” Novell has some copyright registrations SCO has some copyright registrations SCO Group v. IBM – Novell:  SCO Group v. IBM – Novell SCO Group v. Novell SCO Group sued Novell in Utah state court in January 2004 for “slander of title” SCO Group v. IBM:  SCO Group v. IBM SCO has issued statements that the GNU GPL violates copyright and patent laws and violates the U.S. Constitution In Germany, SCO has been fined 10,000 Euros for violating temporary orders to cease disparaging Linux Australian consumer authorities have sought clarification of SCO’s claims February 6, 2004, a hearing in the district court in Utah in the main case on a motion to compel, to force SCO to reveal exactly what part of its copyrighted code was imported into Linux Thank you!:  Thank you! Please feel free to contact me if you have any questions or comments: Franklin B. Molin Kirkpatrick & Lockhart LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 412-355-6251 (phone) 412-355-6501 (fax) fmolin@kl.com

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