Chapter 4 Intellectual Property Steve Kidos Katharine Uvick Bri White

Definitions  Intellectual Property  Creations of the mind  Ex: Inventions, literary and artistic works, and symbols, names, images, and designs  The thing protected is the intangible creative work—not the physical form  Copyright  A legal concept that defines rights to certain kinds of intellectual property.  This protects creative works such as books, articles, plays, songs, works of art, movies, and software

Definitions  Patent  A legal concept that defines rights to intellectual property, protect inventions, including some software-based inventions  Trademark  Laws which protect other forms of intellectual property

Ethical Concerns  What would be a concern of yours if you “owned” an idea?  Someone copying it illegally  Selling for profit  What are other concerns?

Ethical Concerns  Another person is benefitting from your creativity and effort without paying  Why would anyone want to create things if they weren’t going to benefit financially and someone else was?  Are there any reasons why you would argue for personal copying or posting content without authorization?

Arguments towards personal copying or posting on Web  Some people can’t afford to buy the software, movie, or pay the royalty for usage of a song in their video  People figure the company is large and wealthy, so they’re not hurting it  Some people wouldn’t buy it at retail price anyways, so the company isn’t losing any money

Arguments towards personal copying or posting on Web  Making a copy for a friend is just an act of generosity  Someone may feel as if posting a video is a public service  Some people don’t know how to get permission  Everyone does it, so you would be foolish not to

Role/Impact of Technology  The ease of copying digitized material and it is a “perfect” copy  Inexpensive digital storage media; such as DVDs, memory sticks, and flash drives  Compression formats that make music and movie files small enough to download, copy, and store

Role/Impact of Technology  Search engines make it easy to find material  Peer-to-peer technology allows easy transfer of files over the Internet  High speed Internet make transfers quick and easy  Smaller cameras and other equipment that enable audience members to record and transmit media events

Role/Impact of Technology  Software allows amateurs to create new works using the works of others  When looking on YouTube for songs you may see a “cover” of a song, or music of another used in a video  With the power of technology, we can all publish our works; such as blogs and pictures. Also allowing us to copy, which then infringes copyrights

Legal Aspects and Relevant Laws  Fair Use Doctrine  Allows uses of copyrighted material that contribute to the creation of new work and uses that are not likely to deprive authors or publishers of income for their work

Fair Use Doctrine  The purpose and nature of usage  Commercial Purposes or Nonprofit  The nature of the copyrighted work  The amount and significance of the portion used  The effect of the use on the potential market for or value of the copyrighted work

Patent  Recap: A legal concept that defines rights to intellectual property, protect inventions, including some software-based inventions  Should we have patents or not?

In Favor of Patents  Rewards inventors for their creative work  Encourages Innovation  A cost of doing Business  Copyright covers some software, but isn’t sufficient enough for all

Against Patents  Stifles Innovation  It’s not known if inventors are infringing upon patents  Cost of lawyers to research patents is discouraging  Risk of being sued  Difficult to distinguish what is truly original

The Digital Millennium Copyright Act: Anticircumvention  The “Anticircumvention” provisions of the DMCA prohibit making, distributing, or using tools to find a way around DRM systems used by copyright holders  Tools: devices, software, or services

The Digital Millennium Copyright Act  Established 1998  Criminalized the development or use of software that makes it possible for people to access materials that are copyright protected

The Digital Millennium Copyright Act: Safe Harbor  The “Safe Harbor” provisions of the DMCA protect websites from lawsuits and criminal charges for copyright infringement when users post infringing materials  Operators must attempt to keep infringing materials off the site

Case Study: Video Games & Copyright  The situation  Not all elements protected under copyright:  Game rules  Functionality  Game clones take advantage of this  Is it ethical to reproduce “unprotected” elements of a successful game?  What elements are and are not justifiably reproducible?

Tetris vs. Xio: The Case  Desiree Golden wanted to replicate Tetris  She researched copyright law and used what she identified as unprotected in a new game, Mino  The Tetris Company becomes aware, requests Apple to remove (Digital Millennium Copyright Act)  Xio filed counter-notifications, Apple notifies The Tetris Company they must file a lawsuit  The Tetris Company claims Xio infringed on copyright and trade-dress of Tetris

Tetris vs. Xio: Interested Parties  Tetris Holding, LLC and The Tetris Company  Xio Interactive, Inc.  Game developers & industry related corporations  Game clones  Protection against others from benefiting from their work  The consumers  The government

Tetris vs. Xio: the Issues  Risks, problems, and consequences  Legal risks  Defining what is protected and what is not  Creative expression and freedom  Inspired from, expanding upon or stealing?  Defining what is acceptable and not acceptable in game clones  Creating an industry where innovation is not rewarded

Tetris vs. Xio: Benefits  Protection of intellectual property  The creators benefiting from their creations  Creation of an industry that protects innovation  Creative freedom  Ability to use other great ideas in your own work  Ability to comment or expand upon ideas in previous works  Safety  Using ideas with proven commercial success

Tetris vs. Xio: Possible Solutions  Xio Interactive, Inc. is judged as being completely within their rights and wins, and is allowed to continue selling their game Mino  Xio Interactive, Inc. is judged as breaking copyright law and Tetris Holding, LLC and The Tetris Company wins, not allowing Mino to be sold at all  The final solution could be that Mino was in the right in some instances, but not in others, and the judge rules they must make certain changes to their game in order for it to continue being sold  Other possible solutions?

Tetris vs. Xio: Analysis  Responsibilities of the decision maker  Determining the best tool to use to measure the situation  Determine whether or not Xio Interactive, Inc. crossed the line into copyright infringement

Tetris vs. Xio: Analysis  Philosophical perspectives  Utilitarianism vs. egoism  Game clones may lead to less costly versions of successful games  A wider variety of games in a industry that thrives on innovation  Protection of one’s own ideas  Consequentialism vs. deontological ethics  Consider action (copying) and result (a similar game)  Is action worth it if many find happiness in resulting game or it helps the industry?

Tetris vs. Xio: Analysis  Negative and positive rights of stakeholders  Game developers  Positive: prevent others from stealing intellectual property  Negative: use non-protected elements from other games, creative freedom  Consumers  Positive: to be informed  Negative: purchase or not purchase goods  Government  Positive: enforce copyright law  Negative: determine what is copyrighted

Tetris vs. Xio: Analysis  Impact of solutions on each stakeholder  Xio wins  Another company benefits off of Tetris’s work  Increased freedom to use elements from other games  Decreased incentive for innovation  Popular games available at cheaper prices?  Tetris wins  Increased protection for intellectual work  Less creative freedom or usage of other’s ideas  Increased incentive for innovation  Monopoly on certain types of games?  Neither wins or loses  Stalemate?

Tetris vs. Xio: Analysis  Applicable ACM Codes  “1.3 Be honest and trustworthy”  “1.5 Honor property rights including copyrights and patent”  “1.6 Give proper credit for intellectual property”  “2.3 Know and respect existing laws pertaining to professional work”

Tetris vs. Xio: Best Solution  Xio Interactive, Inc. is judged as breaking copyright law and Tetris Holding, LLC and The Tetris Company wins, not allowing Mino to be sold at all  What do you think the best solution is?

Tetris vs. Xio: Best Solution

Napster  Napster founded in June 1999  Peer-to-peer file-sharing (mainly music) network  Estimated 75% of college students using its’ services  Made use of many burgeoning new technologies  Free to use

Lawsuit  Recording Industry Association of America filed a lawsuit against Napster for copyright infringement  Filed only months after Napster became operational  RIAA sought thousands of dollars for each song copied over Napster  Ironically, Napster experienced a lot of growth due to the publicity from the lawsuit

Interested Parties  Recording Industry Association of America  Included 18 record companies, notably “The Big Four”: Universal Music Group, Sony Music Entertainment, EMI and Warner Music Group  Wanted Napster shut down and thousands for each song copied  Claimed Napster had a detrimental impact on their music sales

Interested Parties  Napster  Sought to establish new precedent because of the new nature of the technology  Risked losing their business as a result of the case  Risked monetary losses sought after by the RIAA

Interested Parties  Peer-to-peer file-sharing networks  Relatively new technology with a foggy legal atmosphere  Case would likely set precedent of what is and isn’t acceptable for their operation  Users of peer-to-peer networks  Could be held liable for their participation in the copying and distribution of copyrighted material  Artists and music producers  Split interest in the case because Napster hurt the revenue of more successful artists but helped new artists spread their music  Producers, like RIAA, stood to have their entire business model challenged if Napster prevailed

Risks  Napster stood to lose their business  RIAA risked losing their entire business model if they lost  Artists’ main mode of revenue was at stake  Napster users risked legal action for their participation in copyright infringement

Legal Issues  Fair use  Napster users used it for personal, not commercial, uses  Contributory Infringement  RIAA accused Napster of knowing of and encouraging the infringement of their copyrights  Kept centrally located information on users and the files being shared  Vicarious Infringement  While not benefiting directly from their downloads, drawing in more users gave them financial benefit

Ethical Issues  Napster denied artists and producers revenue they otherwise would have made  Precedent exists for copying media for personal use  Should downloading music be considered fair use? Is it sharing or stealing?  Should Napster be held responsible for the conduct of its’ users?

Benefits  RIAA  Don’t have to adjust business model to accommodate new technologies like Napster  Restore lost revenue stream  Direct financial reimbursement for infringed copyrights  Napster  Stay in business  Users  Continued free access to most music and other types of file-sharing  Artists  Keep the distribution of their music on their terms  Alternatively, a source to expand their audience and distribute their music

Positive and Negative Rights  RIAA and Music Artists  Positive Rights  Seek compensation for, and protection against, the unauthorized distribution of their intellectual property  Right to not have their property shared without permission  Napster  Negative Rights  Right to facilitate peer-to-peer downloads  Right to list information and location of shared data (P2P)  Users of Napster  Negative Rights  Right to share the property they have purchased (not for profit)

Possible Solutions  Napster is absolved and allowed to continue their service, setting a new copyright precedent  Napster is guilty and is forced to shut down, setting precedent for file-sharing and peer-to-peer networks  Napster and its users are guilty, Napster must shut down and users are held liable for their copyright infringement

Impact of Solutions  Napster absolved  New paradigm of free access and sharing  Fall of copyright  Precedent for new technology being embraced and accommodated  RIAA members must reinvent their business model to accommodate free sharing

Impact of Solutions  Napster is guilty  Napster forced to close their business  Precedent against file-sharing and (centralized) peer-to-peer networks  RIAA members can continue with the same business model  Users forced to purchase their music through industry means

Impact of Solutions  Napster and its’ users are guilty  Same impacts as Napster alone being guilty  Sets a dangerous precedent for users being held liable for unknowing copyright infringement  Users may have to pay substantial fines for their use of the service

Best Solution  Hold Napster alone guilty  Philosophical arguments  Utilitarianism & deontological ethics  Benefits  Doesn’t punish users for unknowing copyright infringement  Doesn’t detrimentally affect an entire industry and countless lives centered around music production and sales  Empowers creators of intellectual content  Upholds copyright law  Negative effects  Hinders the progress of new technologies  Possibly serves to stifle innovation and the sharing of ideas

ACM Codes  “1.2 Avoid harm to others”  “1.5 Honor property rights including copyrights and patent”  “2.3 Know and respect existing laws pertaining to professional work”

Sources ACM Concil. (1992, October 16). ACM Code of Ethics and Professional Conduct. Retrieved from Association for Computing Machinery: Baase, S. (2013). A Gift of Fire: Social, Legal, and Ethical Issues for Computing and the Internet. Upper Saddle River, New Jersey: Pearson Education, Inc. Brown, J. (2000, February 3). MP3 free-for-all: the tiny Napster is shaking the music industry to its foundation. Retrieved from Salon: Brown, M. (2012, June 20). US judge declares Tetris clone 'infringing'. Retrieved from Wired UK: Chiang, O. J. (2010, February 18). 10 fan games that shouldn't be ceased or desisted. Retrieved from GamesRadar: McArthur, S. C. (2013, February 27). Clone Wars: The Five Most Important Cases Every Game Developer Should Know. Retrieved from Gamasutra: Neuburger, J. (2012, June 19). Videogame App Developer Breaks the Rules on Copyright Infringement. Retrieved from New Media and Technology Law Blog: copyright-infringement/ Rose, M. (2012, June 19). Judge rules in favor of Tetris Company in cloning dispute. Retrieved from Gamasutra: dispute.php Shawn Fanning's Struggle. (2000, April 30). Retrieved from Businessweek: Tetris Holding, LLC and The Tetris Company, LLC vs. Xio Interactive, Inc., (United States District Court tor the District Of New Jersey May 30, 2012). Trade dress. (2013, March 27). Retrieved from Wikipedia:

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