Just Write

In talk­ing with the guys at The Con­ver­sa­tion, I men­tioned the U.S. Patent & Trade­mark Office‘s project for crowd-​sourcing eval­u­a­tions of soft­ware patent appli­ca­tions, called Peer-​to-​Patent.

Dan and Dave expressed some inter­est in the peer-​to-​patent pro­gram:

“[Never heard of it], but it sounds awe­some.”

–Dave Nan­ian

Peer-​to-​Patent

There is a guide on how it works, and here is their attempt at mar­ket­ing copy:

“Peer-​to-​Patent opens the patent exam­i­na­tion process to pub­lic par­tic­i­pa­tion for the first time. Become part of this his­toric pro­gram. Help the USPTO find the infor­ma­tion rel­e­vant to assess­ing the claims of pend­ing patent appli­ca­tions. Become a com­mu­nity reviewer and improve the qual­ity of patents.”

…hia­tus

The project is not cur­rently run­ning, and no “active patent appli­ca­tions” are being eval­u­ated:

U.S. Peer-​to-​Patent in Evaluation:

“The U.S.Patent and Trade­mark Office and New York Law School are presently prepar­ing an eval­u­a­tion of the two-​year Peer-​to-​Patent U.S. pilot. Results of that eval­u­a­tion should be com­plete by the end of the year.

How­ever, David Kap­pos (the cur­rent leader at the Patent & Trade­mark Office) was involved in design­ing it, and has recently (Fri­day) expressed inter­est in con­tin­u­ing it.

Post-​issue

Also, there is a related grass-​roots effort coor­di­nated by the cen­ter for patent inno­va­tions at the New York Law School, called Post-​issue. Rather than eval­u­at­ing pend­ing patent appli­ca­tions, Post-​issue attempts to gather sim­i­lar com­mu­nity input on cer­tain issued patents:

“Post-​Issue Peer to Patent, or sim­ply Post-​Issue, seeks to improve the qual­ity of patents by pro­vid­ing a frame­work for fer­ret­ing out weak, non-​meritorious patent claims in patents that have issued.

Har­ness­ing the power of a com­mu­nity of peer review­ers cre­ated through Peer to Patent (www​.peer​topatent​.org), Post-​Issue elic­its pre­vi­ously uniden­ti­fied prior art that may inval­i­date or nar­row the claims of issued patents. In so doing Post-​Issue pro­vides greater free­dom to inno­vate, removes uncer­tainty from the patent sys­tem, and pro­vides greater cer­tainty as to the value of issued patents.

Whether for-​profit or non-​profit, whether for respond­ing to demand let­ters or lit­i­ga­tion or for improv­ing a party’s own patents, all par­ties are invited to request post­ing of patents to Post-​Issue for review.”

Cau­tion:

Cal­i­brate your expec­ta­tions, because par­tic­i­pat­ing in this kind of pro­gram takes a lot more effort than your aver­age com­ment on a blog (and prob­a­bly more than your aver­age blog post!)

If the ser­vice is suc­cess­ful, it just might be worth the effort.

Pod­casts are an amaz­ing con­cept — but there are thou­sands of them, and good ones can be hard to find. One guy who con­sis­tently records excel­lent work is “your inter­net pal,” Dan Ben­jamin.

I met Dan out­side FOWA Miami. His first ques­tion was “What do you think of the iPad?” which led to an inter­est­ing con­ver­sa­tion about the future of mobile com­put­ing, pub­lish­ing, con­tent cre­ation con­trasted with con­sump­tion, etc.

He later asked me “How much do you know about patent law and the stuff Apple is up to?”

“Dan Ben­jamin brings together geeks and attor­neys to talk about the inter­sec­tion of patents and soft­ware devel­op­ment, and spec­u­late about Apple’s moti­va­tions and goals regard­ing their recent Android-​inspired law­suit against HTC.“

So I was a guest speaker on The Con­ver­sa­tion, a pod­cast with 30–40 thou­sand lis­ten­ers. The episode title is “Patent Sch­ma­tent,” and we talked about:

• soft­ware patents and copyrights
• tech­no­log­i­cal inno­va­tion dur­ing the Mid­dle Ages
• “why have a patent system?”
• Apple v. HTC
• “what are they think­ing?”

It seemed to go well, and I had a lot of fun talk­ing with Dan, Dave and Wil. Hope to record more pod­casts, one of these days.

Pod­cast: “Patent Sch­ma­tent“

Intro­duc­tion

This arti­cle dis­cusses copy­rights, par­tic­u­larly from the per­spec­tive of web designers.

Some intro­duc­tory notes:

• The usual dis­claimers apply: This is not legal advice, and does not cre­ate an attorney-​client rela­tion­ship. Any legal sit­u­a­tion is highly fact-​dependent, etc.
• No war­ranty: I’ve tried my best to be accu­rate and clear, but give no war­ranty on any of this infor­ma­tion. Use at your own risk, and your mileage my vary.

Scope notes:

• It’s an arti­cle, not a trea­tise. Entire books have (and will con­tinue to be) writ­ten on these top­ics and other related sub­jects, and this arti­cle is but an intro­duc­tion to them.
• United States only. The scope of this arti­cle is lim­ited to the U.S. Of course, copy­right is an inter­na­tional topic, but I’m more con­fi­dent talk­ing about it as to the U.S.
• Copy­right only. This arti­cle won’t dis­cuss any other kinds of intel­lec­tual prop­erty, includ­ing patents, trade­marks, trade secrets, etc.
• Other top­ics: Some top­ics out­side the scope of this arti­cle include: whether to reg­is­ter your copyright(s), the intri­ca­cies of Cre­ative Com­mons licens­ing, edu­ca­tional uses (remem­ber class pack­ets?), and how best to respond when some­one copies your copy­righted mate­r­ial. Per­haps in a future article…

In The Beginning:

Copy­right law in the U.S. orig­i­nates with the Con­sti­tu­tion. The image above shows Arti­cle I, Sec­tion 8 of the Con­sti­tu­tion, which grants Con­gress the 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 1

You Cre­ated It; You Own It

The term “copy­right” refers to a bun­dle of prop­erty rights granted by law to the cre­ators of “orig­i­nal works”. The prop­erty rights arise imme­di­ately, when the orig­i­nal work is “fixed in a tan­gi­ble form of expres­sion”. In other words, the copy­right is cre­ated when you save it on your hard drive, not when you post it.

So, when you orig­i­nate that great story/​article/​song/​play/​blog post/​movie script, and you write/​design/​draw/​photograph/​illustrate/​record/​compose it on your pad of paper/​notebook/​Moleskine/​computer/​PDA, a copy­right is born.

Ques­tions, already:

• “I bor­rowed some inspi­ra­tion from…” Orig­i­nal­ity is required. If you copy some­one else’s orig­i­nal work, you have no copy­right. Indeed, you’ve infringed their copy­right, unless you fit within an excep­tion. If you start with their work and make addi­tions and changes, you’ve cre­ated a “deriv­a­tive work.” (Deriv­a­tive works may be dis­cussed in a later article.)
• “But it wasn’t pub­lished yet” Pub­li­ca­tion is not required. Since 1978, the copy­right exists when an orig­i­nal work is fixed in a tan­gi­ble medium, whether it’s pub­lished or not.
• “But there’s no © sym­bol” A copy­right notice is also not required. (More on notices later in this article.)
• “But it’s not reg­is­tered” Copy­right reg­is­tra­tion is also not required. Though it can be ben­e­fi­cial, and is required even­tu­ally if you want to sue some­one for copy­right infringe­ment. (Again, per­haps in a later article.)

Excep­tions, already:

• Agree­ments: An agree­ment by the cre­ator of the work to sell/​license/​transfer rights in that work, changes things. (Sur­pris­ing, I know.) Some exam­ples include employ­ment agree­ments, con­sult­ing con­tracts and “work for hire” agreements.
• Own­ing a Copy: If you buy a book, or CD, or DVD, you own that copy. But you do not own the copy­right to the text, music or video. A sim­ple exam­ple is that you can sell your copy of a book, but you can’t repro­duce and sell copies of the book.
• Non-​Commercial Use: There is no excep­tion for non-​commercial copy­right infringe­ment. It’s up to the copy­right owner to decide whether they want your “free adver­tis­ing.” How­ever, this can be con­sid­ered as one of the fac­tors of an excep­tion called “fair use”…
• Fair Use: There is an excep­tion for short quotes to enable com­men­tary, crit­i­cism or par­ody. How­ever, this is fairly com­pli­cated, and highly depen­dent on the spe­cific fact sit­u­a­tion. (More on fair use later.)

What Are My Rights?

The owner of a copy­right in an orig­i­nal work has the exclu­sive right to:

• Pub­lish it.
• Repro­duce it.
• Dis­trib­ute it.
• Dis­play it.
• Make “deriv­a­tive works.”
• Per­form it (in the case of music, plays, movies, etc.)

Are There Lim­its On My Rights?

One of the excep­tions to copy­right is called “fair use,” under which some of a copy­righted work may be quoted or repro­duced for the pur­pose of com­men­tary, crit­i­cism, jour­nal­ism, edu­ca­tion, research, or parody.

Cau­tion: Fair use is com­plex. The bound­aries are very fuzzy, and clear rules are hard to find.

Some fac­tors to be con­sid­ered in eval­u­at­ing whether fair use applies:

1. the pur­pose and char­ac­ter of the use, includ­ing com­mer­cial or non­profit edu­ca­tional purposes;
2. the nature of the copy­righted work;
3. amount and rel­a­tive sig­nif­i­cance of the por­tion, com­pared to the entire copy­righted work; and
4. the result­ing effect on the mar­ket for or value of the copy­righted work. 2

Cau­tion (Again): From the Copy­right Office cir­cu­lar enti­tled Fair Use (of course):

The dis­tinc­tion between “fair use” and infringe­ment may be unclear and not eas­ily defined. There is no spe­cific num­ber of words, lines, or notes that may safely be taken with­out per­mis­sion. Acknowl­edg­ing the source of the copy­righted mate­r­ial does not sub­sti­tute for obtain­ing permission.

Sum­mary: Eval­u­at­ing fair use is tricky. When in doubt, try ask­ing the copy­right owner for permission.

What Is Not Copyrightable?

Some kinds of mate­ri­als or oth­er­wise “orig­i­nal works” can­not be copy­righted. The fol­low­ing quotes are exam­ples from the Copy­right Office cir­cu­lar enti­tled Copy­right Basics, in the sec­tion enti­tled “What Is Not Pro­tected By Copyright?”:

Titles, names, short phrases, and slo­gans; famil­iar sym­bols or designs; mere vari­a­tions of typo­graphic orna­men­ta­tion, let­ter­ing, or col­or­ing; mere list­ings of ingre­di­ents or contents

For exam­ple: you don’t own “white on dark” text, or a “green and black” color scheme, or the slo­gan “Web Stan­dards Rule” or “Web Wiz­ards,” or sim­i­lar short phrases and gen­eral ideas.

Excep­tion: Remem­ber that we are not talk­ing about trade­marks here. Maybe in a later article.

Ideas, pro­ce­dures, meth­ods, sys­tems, processes, con­cepts, prin­ci­ples, dis­cov­er­ies, or devices, as dis­tin­guished from a descrip­tion, expla­na­tion, or illustration

Sum­mary: Copy­right is all about the expres­sion of an idea, not the idea itself. A spe­cific “wicked worn” web­site design may be copy­righted, but you can’t copy­right the idea of “scuff­ing up your graphics.”

Works con­sist­ing entirely of infor­ma­tion that is com­mon prop­erty and con­tain­ing no orig­i­nal author­ship (for exam­ple: stan­dard cal­en­dars, height and weight charts, tape mea­sures and rulers, and lists or tables taken from pub­lic doc­u­ments or other com­mon sources)

Sum­mary: Remem­ber that term “orig­i­nal works” from up at the top of this arti­cle? It has to be orig­i­nal to be copyrightable.

At the risk of talk­ing from both sides of my mouth, the stan­dard for “orig­i­nal­ity” is rel­a­tively low. For exam­ple, you might think that the lat­est in a grand tra­di­tion of a hun­dred thou­sand romance nov­els is not suf­fi­ciently orig­i­nal to merit copy­right pro­tec­tion, but as long as the author didn’t pla­gia­rize or copy….

After You Post It, You Still Own It

When you post your own copy­righted mate­r­ial on the inter­net, you still have the copy­right. You haven’t given it away, and it doesn’t become pub­lic domain, and it’s not okay for some­one to copy it. Remem­ber the dis­cus­sion about own­ing a book, but not its copyright.

Just in case there’s any doubt though, you have pub­lished it.

Copy­right Notices

A copy­right notice is the cryp­tic lit­tle phrase at the bot­tom of many web­sites, inside the cover of every book, etc. It is basi­cally a state­ment that “I own this orig­i­nal work.”

The cor­rect form includes three items:

1. The word “copy­right” or “copr.”, or the © symbol.
2. The year of first pub­li­ca­tion of the copy­righted mate­r­ial to which the notice refers.
3. The name of the copy­right owner. This may be an individual’s full name or last name only, or a com­pany or orga­ni­za­tion name (or a rec­og­niz­able abbreviation).

This third one causes some con­fu­sion for web­sites (and soft­ware pro­grams, like Win­dows for exam­ple), which con­tain var­i­ous chunks of mate­r­ial that were posted/​published in dif­fer­ent years. The usual solu­tion is the “year1-​year2″ nomenclature.

By the way, it is gen­er­ally con­sid­ered accept­able to change the order of these three items of a copy­right notice, although it looks funny if the copy­right word/​symbol isn’t in the front.

Some exam­ples:

• copy­right 2006 John Doe
• © 2006 Doe
• © Doe & Co. 2005–2006
• copr. 2005 Doe Com­mu­nity Church

Notes on Notices:

You may see a notice that includes the phrase “all rights reserved.” This is an arti­fact from a time when a few coun­tries actu­ally con­cluded that a copy­right notice did not nec­es­sar­ily indi­cate an inten­tion to reserve all rights, only some of them. My under­stand­ing is that this phrase is no longer nec­es­sary at all.

By the way, you may also see the char­ac­ters “( C )”. This is sim­ply incor­rect. These three char­ac­ters have never been given legal effect.

Copy­right Notice No Longer Necessary

The copy­right notice is now optional, at least in all coun­tries that have rat­i­fied the Berne Con­ven­tion. How­ever, it can be beneficial.

Life­time Of A Copyright:

That word “life­time” is a lit­tle joke, because the copy­right in cur­rent works lasts for the life­time of the cre­ator, plus 70 years. Short answer: long enough.

Don’t Infringe Copyrights

At the very least, it’s ille­gal. As a Chris­t­ian, it’s also a poor wit­ness. Con­sider “Thou shall not steal.”

Rules of Thumb on the Internet:

These are only rough guide­lines, but they’re good ones:
* If it’s on the inter­net, it’s copy­righted.
* If you didn’t orig­i­nate it, you don’t own the copy­right.
* When in doubt, ask for per­mis­sion.
* Or be cer­tain as to fair use (and cite the orig­i­nal author).
* Or look for works avail­able under a cre­ative com­mons license.
* Don’t infringe copyrights.

Addi­tional Resources:

United States Copy­right Office

1. Copy­right Basics
2. Sum­mary of Fair Use
3. Infor­ma­tion Cir­cu­lar 3 – Copy­right Notice

Sum­maries:

1. Wikipedia also has some copy­right information.

Uni­ver­sity Resources:

1. Stan­ford University’s Copy­right & Fair Use Overview
2. Cornell’s Legal Infor­ma­tion Insti­tute – Copyright
3. Pur­due Uni­ver­sity Copy­right Office – Copy­right Basics
4. Pur­due Uni­ver­sity Copy­right Office – Copy­right Exemp­tions (at least the first “Fair Use” section)

Mul­ti­me­dia and Internet:

1. An Intel­lec­tual Prop­erty Law Primer for Mul­ti­me­dia and Web Devel­op­ers
   at Elec­tronic Fron­tier Foun­da­tion. A for­mat­ted ver­sion is posted at: An Intel­lec­tual Prop­erty Law Primer for Mul­ti­me­dia and Web Developers
2. 10 Big Myths About Copy­right Explained (by Brad Tem­ple­ton, Chair­man of the Board for the Elec­tronic Fron­tier Foun­da­tion)
3. A brief intro to copyright
4. Get­ting Per­mis­sion to Pub­lish: Ten Tips for Web­mas­ters
   (talk about a messy URL!) Good arti­cle for web publishers.

From Nolo Press:

1. Nolo Press Copy­right page (Lots of good infor­ma­tion, at about the cor­rect level of sophistication.)
2. When Copy­ing Is Okay: The ‘Fair Use’ Rule

This arti­cle is © Mont­gomery 2006. Some rights released with a Cre­ative Com­mons Attribution-​NonCommercial-​ShareAlike 2.5 License.

Also pub­lished at God­bit.

Photo excerpt of the U.S. Con­sti­tu­tion, Arti­cle I, Sec­tion 8, from the National Archives.

Some­one in the fed­eral gov­ern­ment has appar­ently decided to opt out of the U.S. Patent laws:

U.S. Weighs In on Patent Case

To Keep Its Black­Ber­rys Running

As the Roman cynic Juve­nal said, “Who Will Watch the Watchers?”