CIS 485 ASSIGNMENT 2

Guide to Software Copyrighting and Patenting

University of the Fraser Valley Duncan Jeffries
Praneet Batwar 6/24/2012

Introduction
In todays world robbery is not just limited to money or jewelry. Ideas or concepts too are being stolen. We just dont call it robbery or theft; its called Intellectual Property Theft. Ideas and Concepts can be worth millions if not billions of dollars. If not copy righted the idea or concept which could have been worth a lot of money could be used by anybody. Copyright is a legal tender offered by almost all the government bodies around the world. It gives us the exclusive rights to our intellectual property. Copyrighting can apply to a wide range of creative, intellectual or artistic forms or works. We over here will focus mainly on the copyrighting of software. Software copyright is used by the proprietary software companies to prevent the unauthorized copying of the software they create. In recent events the news is filled with large multinational firms battling against the rights to use a piece of technology. In some cases it maybe as trivial as the mechanism to unlock the smart phone (The infamous Google vs. Apple). I plan on discussing this topic further as it supports the cause of having a management plan which includes a Copyrighting/Patenting action plan. I chose this topic because of the over increasing patent wars that have been happening. Copyrighting is also another major way to fight against software piracy. As the number of internet users have increased over the years rogues sites and services have come up which offer a pirated version of the software for free. This is in general hurts the I.T industry.

History
Today the number of software that is created enjoy protection by the copyright laws we have now. In the early days of computer programming, the laws werent so clear. It is over the time and through various experiences that todays laws have come to being. In the 1960s th ere were few computers and fewer computer programs. Before software is widely marketed it was easy to protect the software. The Copyright Act of 1976, which became effective on January 1 st, 1978 made it clear that the government intended software to be copyrightable. The definition of the kind of works that could be copyrightable were works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.. What wasnt very clear was how much protection the government intended to give the computer programs, and whether there should be special exceptions to the exclusive rights of the copyright owners. In 1990 the Computer Software Rental Amendments was passed which made sure that unless authorized by the owners, even if you purchase the software you cannot replicate it and sell it or rent or lease it.

The McAfee vs Symantec (1997) : Case Study

In 1997, McAfee filed a $1 Billion law suit against rival Symantec Corp. This was because Symantec claimed that McAfee, had stolen software from Symantec. The whole issue revolved around a virus scan software which was fairly new then. The initial clash started in April of that year when Symantec sued McAfee for copyright infringement. The lawsuit was filed because McAfee made software similar to Nortons CrashGuard; software used to prevent the crashing of computers due to some applications. Symantec claimed that PC Medic used a similar code that was stolen from crash guard. Because Symantecs code was copy written McAfee was ordered to turn over the source code for much of its software. McAfee later on dropped the case. This was a 15 year old case. Right now in 2012, software based lawsuits are quite rare because they are well protected. Also, as the I.T industry is grown, each company develops its own code. This is where we focus on our main issue, to develop code or programs and making sure

The Need for Software Patents

Software inventions and hardware inventions are the same. If a new piece of hardware technology is invented and is patented or copyrighted. Then new software should also be copyrighted. Taking a historic approach to this, the founders of the US, wrote it into the constitution initially when it was drafted that all intellectual property be protected (Article I, Section 8, Clause 8). It is known as the Copyright clause. Without any protection to the inventors and the thinkers, then there would be no motive for innovation. As I.T industry is increasing more and more companies are having custom programs being made to automate the companys unique business processes. When employing outside members as opposed to its own employees, immense care should be taken. There have been many instances where companies have been taken a shock when they learn that the program which they had spent a lot of money developing is being sold to others by the outside developer because there was no copyright assigned. Therefore custom legal contracts which are related to the computer program should be created in order to protect the companys investment. Copyright laws were initially designed to protect the authors creative works and guard them from being stolen or misused. An authors copyright cannot be transferred to another.

Oral agreements are completely unreliable. Outside programmers are getting smarter and intend to keep all the work they have done which they have been paid for. Thus those who employ outside programmers should equally be careful to protect their rights. One right way to facilitate protection is to design a custom legal agreement between the programmer and the company. This agreement should be written in order to transfer all the rights of the program to the company. A computer program generally has two parts, literal and non-literal. The literal part of the software is generally the source code. This is easily copyrightable. The non-literal part of the source code is the design, the structure of the program, the sequence in which the program engages the user. The literal parts can be copyrightable, but the non-literal parts can be reduced to a tangible expression so that it can be copy righted. Usually it is better for the company to give in the non-literal inputs. Another plus side to patenting or copyrighting your software is protection against piracy. In the year 2004, $80 Billion worth of commercial packaged software was installed worldwide, but only $51 billion was paid for. This led the software companies to suffer a 36% loss globally. Currently several principal international treaties provide copyright protection under an umbrella system in which a copyrighted work released in any member country has copy right protection in all member countries. The Digital Millennium Copyright Act (DMCA) of 1998 not only criticized the copyright infringement, but also penalizes production and distribution of technology that has been copyrighted. In the year 2008, software companies saw a loss of 41%, in 2009 they saw a loss of 43% and in 2010 a loss of $ 50 Billion was reported.

Risks and Loopholes in Patenting

Although there are standard laws that protect the programs and the software from piracy and intellectual property thefts, there arent any solid rules that protect the non -literal on intangible aspects of a program. These can include interfaces, program structures, sequence, GUIs. And methods, systems, processes and functionalities cannot be copy righted. Therefore there easily can be a loophole used to copy software. A major example that can explain this is the Google vs Oracle case. Oracle sued Google over copyright infringement. Oracle has managed to prove that Google has copied nine lines of code in their Android operating system. On May 31 2012, Judge Alsup ruled that the specific code that is used to carry out a function can be copyrighted but the methods, fucntions, declarations or method headers or classes cannot be copyrighted. To accept Oracles claim

would be to bar anyone from righting code to perform a particular function. The case was controlled by the following principles Under the merger doctrine, when there is only one (or only a few) ways to express something, then no one can claim ownership of such expression by copyright. Under the names doctrine, names and short phrases are not copyrightable. Under Section 102(b), copyright protection never extends to any idea, procedure, process, system, method of operation or concept regardless of its form. Functional elements essential for interoperability are not copyrightable. Under Feist, we should not yield to the temptation to find copyrightability merely to reward an investment made in a body of intellectual property.

Patent Trolls
Patent trolls are large companies that buy a lot of patents and then extort fees from smaller companies that are unaware of violating them. These surprise lawsuits can have a devastating effect on smaller companies who cannot afford to hire a corporate lawyer to fight the case for themselves. Even if you are in the right it can be very expensive to defend yourself. Therefore smaller companies just give up and pay the license fee. This is definitely a misuse of the patent system.

Patent Warfare
Large tech companies are using patent lawsuits to slowdown each other. Understanding that the cost of engaging a lawsuit is a lot less than the profit made by slowing the competitor, the large tech companies are engaging in a non-stop war. These companies use everything they have to slow down the opposite company. It can be hardware patents, software patents even design ideas. This trend is majorly seen in mobile phone companies such as Apple, Samsung and Motorola.

Apple vs Samsung (Case Study)

Apple initially started the attack stating that Samsung copied the design of iPad, iPod and iPhone and implemented it in its Galaxy Tab. Apple said that instead of pursuing independent product development, Samsung has chosen to copy Apple's innovative technology, distinctive user interfaces, and elegant and distinctive product and packaging design, in violation of Apple's valuable intellectual property rights. Two weeks later Samsung replied with another lawsuit on Apple stating that Apple infringed on patents concerning reducing data transmission errors in WCDMA (Wideband CDMA) mobile

networks, tethering mobile phones to PCs so the PC can use the phone's wireless data connection, and reducing power consumption when transmitting data over HSPA (High Speed Packet Access) networks This is a clear case study showing Apples and Samsungs aggressive strategy in slowing down each others business.

Recommendation
As an IT consultant I suggest it is necessary to make sure to employ these ideas in the business model of this company. 1. Make sure that each piece of new software code that is developed is copyrighted or at least patented for a long period of time. 2. If it is a literal or tangible part of the software such as the code, then it can be easily copyrighted. If it is a non-literal part of the software then an agreement must be developed so that the design and the idea of the software should be protected. 3. While employing an outside programmer to make software for the company, it is necessary to make sure that agreement is met where the author of the code doesnt sell the code later on to the outside market. 4. It is also important to make sure that before employing a new piece of software or before developing a new code or software, it should be checked if it has already been patented or not. This is very important as Patent trolls could sue to company.

References
1. Symantec (1997). Symantec Launches Lawsuit Against McAfee for Copyright Infringement. Retrieved on June 24 2012 from http://www.symantec.com/about/news/release/article.jsp?prid=19970423_01

Symantec launches a lawsuit against McAfee for copyright infringement. The subject matter was a code for a anti-crash software. Used for historical purposes.

2. Symantec (1997). McAfee Drops Suit against Symantec In Japan. Retrieved on June 24 2012 from http://www.symantec.com/about/news/release/article.jsp?prid=19970828_01 McAfee drops a lawsuit on Symantec. The lawsuit revolved around a code for a virus scanning software. Used for historical purposes. 3. Shaw, Steven (2012 June, 12). Why we need software patents. Retrieved on June 24 2012 from http://www.zdnet.com/blog/law/why-we-need-software-patents-part-3-of-3/129 Steven Shaw an active blogger and e-reporter enumerates and explains why software patents are needed. He argues that Software inventions are the same as hardware inventions and they too need equal patenting rights. 4. The IP Law Blog (2007 May, 06). Is That Expensive Custom Computer Program Really Yours? Retrieved on June 24 2012 from http://www.theiplawblog.com/archives/-copyright-law-is-that-expensive-customcomputer-program-really-yours.html The admin of the site in detail explains how an outsourced programmer can easily claim ownership of the code created by the contracting firm even after taking the full payment for the work. The admin also further explains how a company should make sure that its software is protected.

5. Sookman, Barry (2012 June, 03). So you want to protect computer programs by copyright, the Oracle v Google and SAS v WPL cases. Retrieved on June 24 2012 from http://www.barrysookman.com/2012/06/03/so-you-want-to-protect-computerprograms-by-copyright-oracle-v-google-and-the-sas-v-wpl-cases/ Sookman explained how copyrighting codes are easy. But it is not easy to copy right APIs, program structures, sequencing and organizations. The case of Google vs Oracle is also given, where the final verdict of the case is given and the principles on which the case was decided are also given.

6. Chiviz, Huang and Fernandez (2003) A New Weapon Against Piracy:Patent Protection as an Alternative Strategy for Enforcement of Digital Rights Retrieved on June 24 2012 from http://law.bepress.com/cgi/viewcontent.cgi?article=4193&context=expresso This is a white paper by Chiviz, Huand and Fernandez, where they explain the effect software piracy is having on the software global industry. They also go ahead and explain, how patenting is a good way to protect your software in global markets. 7. Mace, Michael (n.d.). The case of software Patents. Retrieved on June 24 2012 from http://mobileopportunity.blogspot.ca/2011/08/case-for-software-patents.html Michael mace explains how patenting is being misused and companies are using patents to extort money from smaller firms who use the patented software unknowingly. He also tells us how large companies are engaging in Patent Warfare, where they file lawsuits against each other to slow down their business.

8. McDonald, Stephanie (2012, June 25). Apple vs Samsung timeline: Clash of the Titans. Retrieved on June 24 2012 from http://www.techworld.com.au/article/428531/apple_vs_samsung_timeline_clash_titan s/?pp=2 Case study where large technology firms such as apple and Samsung are engaging in constant patent warfare to slow down each others business.