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Humanitarian Free and Open Source Software Development (HFOSS) Spring 2018
Your instructor is not a lawyer, and nothing said in class or included in course material is intended as legal or financial advice.
Rather, this discussion of concepts is meant to aid in understanding some of the constraints on sharing software and motivations behind the establishment of various mechanisms and norms in support of software freedom and collaboration.
- Copyright
- Patent
- Trademark
- Trade Secret
- Public domain
These are often referred to as intellectual property which invokes a comparison with physical things, such as real property or personal property, possession of which is said to be rivalrous, eg, one person possessing it can exclude another person from using it.
However, each of the set of restrictions (the four not including public domain) operates very differently from the others in terms of:
- what it covers
- how it comes into force
- how it is maintained over time
- how long it lasts
and, of course, all the things covered by these concepts are non-physical, and thus, non-rivalrous. Thomas Jefferson famously compared it to lighting one candle with another.
The Free Software Foundation considers these differences so stark, and their inclusion together under a single term so misleading, as to recommend never using the term "intellectual property".
- applies to creative expressions (eg, not facts)
- comes into effect automatically (as per the Berne Convention) when work is put into tangible form
- lasts a long time, depending on authorship (since 1978)
- 70+life of a known author
- for anonymous, pseudonymous, or work for hire: 120 years after creation or 95 years after publication
- In US, a federal power granted to Congress by the copyright clause of the Constitution
- In the US at least, the doctrine of fair use allows very limited unlicensed use of copyrighted works
See also https://copyright.gov/
- applies to inventions (must be novel and non-obvious eg not prior art)
- one must apply for and be granted a patent ($$$)
- application must disclose sufficient detail of invention
- lasts 20 years (previously 17)
- precedence determined by first-to-file (previously first-to-invent)
Copyright covers specific creative expression. For example, copyright doesn't cover all versions of a certain old German fairy tale but it has covered a specific telling of that fairy tale.
So, copyright could cover a specific body of code, but patents (at least in some jurisdictions) might cover the underlying algorithms. To work around a copyright, one might write in a different language with a different structure (clean room separation between design and implementation) to create a different specific expression of the operations in a code base.
There is not so general a way of getting around an algorithm patent aside from inventing a completely different algorithm--a patent might cover an algorithm regardless of how it is expressed.
- Covers identifying marks: Names, symbols, branding, "trade dress".
- One gets it by using it to identify one's goods (or for service marks, services).
- Can keep it indefinitely, but its exclusive use must be defended.
- Can be registered to strengthen remedies for infringement.
- Not in the Constitution explicitly, but managed alongside patents at USPTO.
- Covers whatever one can keep secret
- Last for however long you can keep it secret
- Often assisted by contracts in the form of non-disclosure agreements (NDA)
- If NDA's have an expiry date, this can put a limit on how long something can be kept secret
- obviously works very differently than copyright on published works
- absent copyright or patent restrictions, this would be the default way of restricting use
- covers creative works and inventions not restricted by the above
- expiry of patents and of copyrights allows those works into the public domain
- in US, federal government can't take copyright, so fed works goes straight to public domain
- documenting prior authorship could help against copyright restriction
- documenting prior art could help against patent restriction
Additional concepts:
- Moral rights -- right of a creator to be identified with a work.
- work-for-hire -- hiring company takes ownership (see 95 or 120 year copyright terms)
So, copyright, patents, trademark, and trade secrets create legal restrictions on use.
A license then is a mechanism for lifting (usually, just some of) these restrictions, usually with limited extent as spelled out in the various conditions and qualifications in the text of a license.