Intellectual Property and Privacy Basics What Is Intellectual

Intellectual Property and Privacy Basics

What Is Intellectual Property? Tangible property: a cup of coffee, a chair to sit in… Intellectual property: music to listen to, stories to read while drinking the coffee… Physical property involves individual items (my car). Intellectual property involves classes of items (the same poem can be printed in many books).

Differences Between Physical and Intellectual Property Intellectual property is non-rivalrous: we can both read the same book, but we can’t both drink the same cup of coffee.

Legal Systems to Protect Intellectual Property Protections for IP include: • Copyright. • Patent. • Trade secret. • Trademark.

Copyright: – Protects the expression of ideas fixed in a tangible medium for a limited duration, currently the life of the author plus 70 years. – Does not protect ideas, processes, discoveries, facts. Copyrighted material must be original.

Rights of Copyright Holders Copyright holders can: – – Reproduce their work. Adapt or derive works from their work. Distribute copies of the work. Display or perform the work.

Limitations on Copyright limitations include: – – Fair use doctrine. Limitation to expressions of ideas (merger doctrine). Limited terms of copyright. First sale rule.

Author Rights in Europe The Berne Convention states: Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

Patents: – Protect useful, novel, and non-obvious processes, machines, means of manufacturing. – Are of more limited duration than copyright (20 years). – Grant a monopoly over implementation of the patented idea.

Trade Secret A trade secret is, er, a secret that can give you an advantage in the marketplace. The secret Coke formula, for example. Trade secrets: – Last as long as the secret is maintained. – Can be any type of information. – Cannot be readily discerned (reverse engineered) or obvious to others in the industry.

Trademarks: – Protect product or brand names, phrases, logos, so that customers aren’t misled or confused about where products are coming from. (Is it real or a knockoff? ) – Are meant to ensure “good will”: association of a mark/product with its actual manufacturer. – Last as long as the good will does. Typically, you want your trademark to be used as an adjective, not as a generic noun or process. – Good: I need some Kleenex facial tissue. Where is the Xerox photocopier? – Bad: Got a kleenex? Can you xerox this for me?

Why are we talking about IP? The concept of property structures information in defiite ways. Legal and ethical implications associated with ownership to expressions of information may affect: • If a work can be disseminated or preserved. • How that work is described. • Who can access it. There may also be legal and ethical implications assocated with information that cannot be owned: e. g. , most personal information. Thus the relationship with privacy.

Types of Privacy Law professor Jerry Kang (and others) discuss three types of privacy: – Spatial. Controlling access to one’s person and private space. – Decisional. Making personal decisions without interference. – Informational. Limiting access to information about oneself.

Privacy in the U. S. Legal System Privacy laws include: • Privacy torts (for civil cases). • Court cases that set precedents for interpretations of constitutional privacy. • Hodgepodge of individual statutes (HIPAA, COPPA, etc) for specific kinds of information.

Prosser’s Four Privacy Torts • Private facts. Physically or otherwise disrupting the solitude of another. • False light. Publicly creating an offensive and false impression of another. • Intrusion. Distributing offensive private information that is not in the legitimate public interest. • Misappropriation. Using another’s name or likeness for personal gain without consent.

Dilution of Privacy Torts The torts of private facts and intrusion often fail because of the difficulty of distinguishing public and private information. Example: Florida Star vs. BJF, 1989. A rape survivor sues a newspaper for publishing her name. She wins, but the decision is reversed on appeal, because the name was available in police reports.

Constitutional Privacy The U. S. Constitution does not mention privacy. Privacy is first accepted in constitutional law in the decision for Griswold v. Connecticut, 1965. The court’s decision held that although the Constitution does not explicitly protect a general right to privacy, guarantees to privacy may be found in the “penumbras, ” or shadows, of various provisions in the Bill of Rights.

“Privacy” in the Bill of Rights • The First Amendment guarantees the right of association (in particular anonymous association). • The Third Amendment prohibits the quartering of soldiers “in any house” in times of peace without consent of the owner. • The Fourth Amendment protects against unreasonable searches and seizures. • The Fifth Amendment protects against self-incrimination. • The Ninth Amendment claims that just because a particular right isn’t mentioned, that doesn’t imply it should be denied. • The Fourteenth Amendment guarantees that no one shall be deprived of liberty without due process.

Weaknesses of Constitutional Privacy Of course, the government does violate our privacy in a multitude of ways. In terms of decisional privacy, there are laws against taking certain drugs, against gambling, against euthanasia, and many other activities that might be deemed private decisions. In terms of spatial (and, in the Internet age, also informational) privacy, search and seizure restrictions have been relaxed according to the open view doctrine and the Patriot Act.

Legality vs. Morality This lecture has concentrated on the legal landscape associated with intellectual property (and with personal information not considered intellectual property, via privacy). In contrast, the articles for this week—Himma, Stallman, and Friedman, et al—concentrate on morality, or ethics (in other words, on how people should address issues of intellectual property and personal information, as opposed to what the law says). Himma emphasizes that it’s important to differentiate between larger ethical questions and the current legal means of addressing those questions. To get at this, we are going play some puzzles (and then make some puzzles to play!)