Intellectual Property Summarized

NOTE: I’m not a lawyer. This simply explains intellectual property in plain English. This is not legal advice.

NOTE 2: Intellectual property has been abused by lawyers to the point that the domain is very corrupt. Consult a lawyer if you want anything even remotely precise-enough to act on.

Intellectual properties (IP) are legal ownership of an idea, with protections involved that can be enforced.

  • This idea is represented as an intangible asset in accounting.

Intellectual property creates a temporary monopoly for the entity that created an idea to make money from it.

  • This includes the implicit right to sue anyone else who also tries to make money from it.

“Public domain” is simply the absence of a license.

Except for trade secrets, all intellectual property eventually moves into the public domain, which makes it public property available to everyone.

The political debate about IP can become very heated, and revolves around several questions:

  1. Should someone or an organization profit exclusively off their work (with nobody else allowed)?
  2. Should they profit off that work indefinitely?
  3. If someone else makes something similar-but-not-exactly-the-same, can they profit off that as well?

In practical reality, there is an ethical universal on how intellectual property should function:

  1. If someone makes something, that person is fully entitled to solely distribute it for 5–20 years.
  2. During that period, that person’s ownership should never be transferred to someone else.
  3. If that person is particularly generous, they are entitled to make their property completely public if they’d like.
  4. At that statutory time, whether 5 years or 20 years, the property is public, for everyone to freely use as they prefer.
  5. Someone is entitled to their trademark, as their symbolic image, as long as people know who they are based on that symbol.

A few legal doctrines broadly exist within intellectual property:

  • Fair abridgment (copyright) – aka “fair use” or “fair dealing”, a copyrighted work is free for use in specific situations like parody, non-commercial use, and education.
  • Scène à faire (copyright) – French for “scene that must be done”, when a scene in a created work is almost required for that genre, certain elements of it are not protected by copyright (e.g., homeless people in a poor part of a city).
  • Equivalents doctrine (patents) – a court can hold a party liable for patent infringement when the infringing device doesn’t fall within the literal scope of a patent claim, but is still equivalent to the claimed invention.
  • Functionality doctrine (trademarks) – manufacturers can’t protect specific uses of a product with trademark law, since that’s a patent issue.
  • First-sale doctrine (USA-only) – aka “exhaustion doctrine”, an intellectual property holder can control resale of products embodying its intellectual property, but the intellectual property is “exhausted” after a point.
  • Implied license – a licensee is allowed to do something that would normally require the express permission of the licensor if the licensor’s actions lead the licensee to believe they have permission.
  • Inevitable disclosure (trade secrets) – an employer can claim a trade secret without needing proof or evidence to prevent a former employee from working a job that may result in using trade secrets.

Copyright

A copyright is an exclusive right for an original work, and implicit for a wide variety of created works:

  • Written works (e.g., books, plays, sheet music)
  • Artwork of any sort (e.g., paintings, photographs, music)
  • Computer software code (since it’s the “written” work of someone making computer logic), though there are much more effective licenses for it.

Copyright never covers ideas (which is the domain of the other IPs), but instead protects the expression of those ideas.

An implicit copyright means copyrights are an automatic right to the author or creator as they create it, so registering a copyright is only necessary for legal defense.

  • You can register a copyright at the US Copyright Office to verify ownership, but you can also mail the finished work to yourself and leave it sealed to open in front of a judge.

Copyright gives the holder exclusive rights:

  • Can reproduce the work in any form
  • Can publish the work
  • Able to add the work to a broadcast (e.g., film or TV)
  • Adapt the work

As long as they’re not reproducing the work itself, people can imitate ideas within a copyrighted work.

  • Copying a novel under copyright is illegal, but anyone can use the same plot elements and archetypes to create another story.
  • Reproducing a painting is illegal, but someone can use the same inspiration and style as the original painting.
  • Copying copyrighted computer code is illegal, but imitating its flow of logic is legal.

Copyrighted works persist past most creators’ lifetimes

Generally, individual works made after 1923 expire:

  • 70 years from the first publishing or public appearance (if made in 2000, public domain in 2070)
  • If not published or made public, the end of the author’s year of death

Corporate works are the earlier of:

  • 95 years from publication or publishing (if published in 2000, public domain 2096)
  • 120 years from authorship (if written in 2000, public domain 2120)

Disney has paid numerous legal fees to extend copyright laws.

Copyright’s laws are now broad enough that they inhibit creativity.

  • If an artistic industry has reached maturity, it’s almost guaranteed to repeat the same tropes, notes, movements, and symbols.
  • The entire conflict revolves around the philosophical concept of “newness”, but nothing is technically ever new.
  • With enough legal enforcement, attorneys can easily enforce copyrighted works from nearly a century ago.

Fair use permits copyrighted works for specific use

Fair use allows free use of the work for reasonably necessary illustrative teaching purposes.

  • Educators can use materials in a classroom but cannot share them in an online space.

Fair use also allows for commentary, criticism, and news reporting.

  • This includes parody and farce.

Since it doesn’t make any money, most fan fiction is under fair use.

The fair use clause is hazy, and publishers don’t always honor it.

Many technologies (e.g., AI) can still “create” something very similar that’s still fair use.

Copyright is now complicated

To own a copyrighted material, most people aren’t aware they’re consenting to an implicit contract to consume the material and not distribute it.

  • Place shifting, or space shifting, allows media to be “shifted” from one media to another (e.g., streaming online versus locally streaming). This is perfectly legal, but often allows the consumer more control over it (such as pirating the content after they’ve downloaded it).
  • It’s illegal to distribute most copyrighted content, and can land a sufficiently prolific distributor (e.g., via torrent) in a civil case.
  • Copyright violation is ubiquitous, and technically applies to literally anyone who duplicates media (i.e., they have a computer on the internet and access content).
  • Copyright enforcement, however, is a question of how much a corporation wants to spend on legal fees. The entity will only send attorneys after someone they perceive as a financially advantageous target to remove.
  • Technically, the presence of the internet makes copyright impossible to enforce via conventional models of legally defined distribution, since each computer must copy the intellectual property (i.e., download it) to formally use it, making re-distribution completely trivial (e.g., copy-paste a file).
  • This gets worse with auto-generated AI, which can use copyrighted content and “create” new works based on an algorithm.

Very frequently, copyright holders would prefer people simply rent their service instead of outright buy the property.

For that reason, many large entities exert a lot of pressure with internet-based services to move to a content-moderated platform instead of a system based on downloading or distribution.

  • Digital content is constantly changing, along with intellectual property, so legal situations often give it a shorter lifespan than content with physical copies.
  • While digital content is easier to distribute, it’s also easier to destroy (simply by deleting it), so it’s far more volatile without being securely stored across a distributed system.
  • Even when content is distributed, most digital content contains Digital Rights Management (DRM) that curtails the free use of the content.

Copyright gives property holders the license to profit, but also gives those holders the ability to impede freedom.

  • When private censorship impedes a public library’s operation, it prevents the free flow of ideas.
  • When culturally relevant media is set behind a required payment, it creates a class divide against the people who can’t afford it.
  • Many times, content providers will take down content on behalf of copyright-holders’ interests, which can often work against the interests of the public.
  • At the farthest end, copyright holders can control what people are permitted to consume, which can directly influence their capacity for discussion and thought.

As an individual consumer, owning a non-DRM copy of copyrighted property is vastly superior:

  • You can freely replay the content at your leisure as long as you have the technology to read it.
  • The modifications and updates to the copyrighted content (if any) are within your control.
  • You have the freedom to lend it to people you know who may benefit from it.
  • It won’t arbitrarily expire or be locked-off due to a political fashion.

Consuming copyrighted works is a bit like consuming food:

  • If McDonald’s were to sell burgers at $40/burger and make all burger sales illegal, people would not pay for McDonald’s, and would instead get other types of food.
  • Severely constrictive IP laws often lead most people to find alternatives instead of generating more revenue for the property holder.
  • However, it will persist because entities like the RIAA and MPAA are willing to pay copious legal fees to maintain their advantage.

Trademarks/Service Marks

A trademark distinguishes goods and services from other goods and services.

Trademark symbols:

  • The ™ symbol indicates the owner believes they have an original trademark.
  • The ® symbol indicates the owner officially registered the trademark with the USPTO.

If you want a trademark, secure it as early as possible.

  • While trademarks are implicit intellectual properties, they are very complicated to enforce.
  • The USPTO files every trademark after performing a clearance search, and costs ~$3,000 across 18 months.

Many things could be a trademark.

  • Words – when there is a “design” element and a word element, the word portion matters most.
  • Names – surnames can’t be registered, even when combined with a generic term.
  • Symbols
  • Devices – music, scents, colors

Trademarks have a very complicated legal framework.

  • They revolve around the mark being easily identifiable and distinctive, which can be very difficult to prove or validate.
  • Enforcing a trademark is a region-by-region matter, and two different entities can often clash when they both get large enough to create a dispute over a name.

Trademarks are difficult to define because the mark’s strength is from the public’s perspective.

  • A trademark can only be one distinctive mark, not two.
    • For trademark reasons, split words and images apart.
  • Trademarks can’t get confused with something else.
    • Generic marks refer to their use (e.g., carports are for cars, not hair gel and so a carport hair gel could qualify).
  • A famous mark always takes precedence.
  • Courts can also assess portions of a brand.
  • Secondary works (phrases or ideas not crucial to the trademark) can’t defend a trademark.
  • Trademarks in a different language are translated to English before they’re assessed.

Very descriptive marks can have a very narrow scope!

  • However, too much descriptive verbiage can exempt it from its trademark status.

Trademarks can’t be scandalous, which is a highly broad and interpretative definition.

Trademarks are often complicated to decipher over who owns which, and usually the entity with the most well-funded attorneys will win.

Patents

Patents are exclusive rights for an inventor that prevent others from creating or selling that person or corporation’s idea.

  • However, a patent holder can bestow distribution or creation rights to another party.
  • A patent is valid for up to twenty years.

A patent must be both new (novelty) and somehow useful (utility).

The idea must be original and built by the creator (e.g., can’t patent sunlight or the feeling of love).

Patents are difficult to acquire.

  • The USPTO patent process costs ~$8,000 across 3–4 years, with maintenance fees every 5 years of about $1,000.
  • After 20 years, patents go into the public domain.

Patent battles are often waged over tiny, semantic differences that an average person won’t care about.

  • The most profitable patents come through particular innovations of massive organizations (e.g., pharmaceuticals, cars).
  • Between its limited statute and constant legal requirements, patents are only for people wishing to enforce their intellectual property.
  • For the duration of the patent, almost all legitimate innovation in that specific domain ceases.

If there’s enough money in it, other creators will often patent similar and legally distinctive ideas.

  • If your created work is popular, patent enforcement is costly.

Trade Secrets

A trade secret is specialized information:

  1. The information isn’t generally known to the public.
  2. Because that information isn’t generally known, its holder has an economic benefit.
  3. The holder of the trade secret makes reasonable efforts to maintain those secrets.

Because of the nature of trade secrets, they’re legally enforceable if they’re violated, but not registered by any governing authority beforehand (since they’d lose their secrecy if they were).

An IP is a tradable commodity

Companies will often work more toward buying IP from others instead of trying to incubate the necessary creativity within their organization (“open innovation”).

Intellectual property battles can be fierce

The scope of what intellectual property can do typically arises many years after the formation of that property.

  • Individuals and organizations may provide free access to their product, then later decide to restrain usage of that product, and its legality will be exclusively determined by how the licensing was originally framed.
  • If you’re even remotely concerned about your intellectual property for the next 20 years, get a good lawyer in that specialization.

To enforce copyright, you’ll need to have previously enforced it as well.

  • If the public has freely used intellectual property for a while, it can sometimes set a precedent that inhibits enforcement of a general-use IP.
  • However, that doesn’t necessarily mean anything, since good-enough attorneys can often frame language in a way that benefits their client.
  • It can be prohibitively expensive and challenging to enforce intellectual property, especially when you use third-party distributors who don’t bother to enforce it.

The intellectual property battle is relatively petty, and not always a great financial decision.

  • IP law is vague and murky, where multiple lawyers and judges can come to completely opposite conclusions on how to apply a ruling.
  • IP legal maintenance grows proportionally as a higher overhead cost as the property gains more popularity (and, presumably, more revenue).
  • Typically, the group that profits the most from intellectual property disputes are intellectual property attorneys.

Patents are typically complex enough to require attorneys, and “patent trolls” exploit that reality:

  1. File many patents, often by finding patents which weren’t formally filed yet or purchasing broad patents that don’t have much legal validity.
  2. Send a Cease and Desist letter to smaller patent-holders with a demand for money.
  3. To avoid court fees, the smaller groups will pay settlements to the patent troll.
  4. The troll can then use the smaller wins to go after larger groups.
  5. Even if the patent-holder never enters a case (let alone win it), there’s no adverse consequence for their prosecution beyond the legal fees.
  6. Further, enough money and lobbying from patent trolls can advance legislation that actually solidifies unethical patent enforcement.

Copyright trolls are just as bad as patent trolls:

  • It’s definitely possible to create a license over some public domain IPs, then sue people over usage.
  • Derivative works are copyrighted on their own, and came later. It’s not uncommon for a public domain work to have specific permutations of that work be copyrighted about the newer content (aka “thin copyright”).
  • There’s a lot of effort to take down copyrighted property, typically by invoking the Digital Millennium Copyright Act of 1998. DMCA don’t really stop piracy, but does make more work for lawyers, and is trivially easy to anonymously submit a request.
  • Large organizations can join efforts to take away older copyrighted content, which can create large class-action lawsuits aimed at shutting down public libraries, with the legal force equivalent of a small country.

Anyone with a basic level of computer proficiency and willingness to research can stop trolls when they’re attacked by them.

  • Most people would rather not wrestle with it, and typically pay the relatively lower settlement fee.
  • There is free and low-cost legal representation available, such as through the EFF.
  • Public inaction ends up creating a very real litigation problem later on, once they’ve established enough skill to do it.
  • If they’re particularly successful at their endeavors, they can establish precedent that perverts the essence of ethical intellectual property.

Many of the legal battles between organizations can dramatically change entire industries:

Enough data suggests that a vast majority of individuals download pirated copies of copyrighted content, though the legislation around the culture means nobody openly talks about it.

  • Individual consumers are impossible to crack down on due to sheer volume, and their content is often perfectly legal to consume even when it’s pirated (due to DRM they’re lawfully circumventing), so enforcement can only work against distributors of the content.
  • The attempts to stop piracy work effectively like prohibition rules had nearly a century ago: it gets driven underground and people keep doing it.

Try to favor open licenses

A closed license may allow more power consolidation, but it comes with risks:

  • If the license is closed and permits free access, future decisions that inhibit end-user decisions will generate sentiments of betrayal and revenge, and the negative publicity can frequently offset any gains from a closed license.

As an intellectual property distributor, you gain more marketing exposure through more people using your product.

  • It builds a better legacy, though you do miss out on potential wealth you could have gained.
  • However, the legal fees to enforce your intellectual property can often cost more than if you had had an open license, with the added detriment of goodwill sabotaging what would have been a wash.

Closed licenses create many risks to an organization and its individuals, and open licenses are safer for consumers and service providers.

  • The Forbidden Fruit Effect means the chances of that property getting stolen/hacked and duplicated becomes more likely.
  • Any secondary gains you could have made from improvements to your property will be lost, while a competing open license will slowly outpace your work.
  • The scope of your legal rights as a user of an open license is much wider than conventional intellectual property law permits.
  • By contrast to legal rights, the public image of who first created something is far more important long-term (especially for the history books), which is easier to create with a license that permits easy distribution by the product’s users.
  • With an open license, you grant freedom for people to choose alternative solutions that they may prefer over you, which can severely cut down on legal battles you may otherwise have had to pay.

Creative Commons (CC) gives much more flexibility than copyrights

While public domain in copyright is complex, Creative Commons offers the freedom to define elements as public or private:

  • BY (Attribution) – Others can copy, distribute, display, perform, and remix the work if they credit the original author’s name.
  • ND (No Derivative Works) – Others can only copy, distribute, display or perform exact copies of the work.
  • SA (Share Alike) – Others can only share the work under a license identical to the one the creator chose.
  • NC (Non-Commercial) – Others can copy, distribute, display, perform or remix the work for non-commercial purposes only.

They combine to create six popular permutations:

  • CC BY-NC-ND (Attribution-NonCommercial-NoDerivs) – others can freely share with others as long as they credit you, but can’t use them commercially or change them in any way.
  • CC BY-NC-SA (Attribution-NonCommercial-ShareAlike) – others can freely share with others as long as they credit you, but can’t use them commercially and must license their creation the same way.
  • CC BY-NC (Attribution-NonCommercial) – others can freely share with others as long as they credit you, but can’t use them commercially.
  • CC BY-NC (Attribution-NoDerivs) – others can freely share with others as long as they credit you, but can’t change them in any way.
  • CC BY-SA (Attribution-ShareAlike) – others can freely share with others as long as they credit you and license their new works under the same terms. This is informally similar to “copyleft” in software licenses.
  • CC BY-NC (Attribution) – others can freely share with others as long as they credit you. It’s the best way to send information if you want credit for the work.
  • There is also CC0, which waives the right to a copyright without having to wait 70+ years from publication.

CC License is newer, and requires opting into it.

  • Creative Commons permits a work to be more easily recognized and gives the creator more flexibility on how they may profit from it.
  • Several software developers created every musical tune, so now copyright for all music may shift toward Creative Commons.

A Growing Trend

Different groups can be very influential to advance open licensing:

In a vast number of ways, open-source licensing is paving the way for new hybrids of usage rights:

  • The Public Money, Public Code movement demands that government-funded software should have open-source code.
  • AI and machine learning scrape data, then reproduce a derivative work. In principle, this is in direct violation of the duplication aspect of copyright, which is also somewhat an issue in Creative Commons licensing as well.