2012/Open Source and Intellectual Property - Busting -some of- the Myths

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“If it’s open source, that means it’s public domain, right?” “Well, it’s fair use if you only copy 5% of it.” “I know, let’s get a trademark and then nobody can use our idea!” A discussion of common myths about intellectual property and how it applies to open source.

Speaker: Paula Holm Jensen

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Contributed notes

This was more of a Q&A session than a presentation. If you (also) took notes during this session, please add them in!

Paula is a lawyer, but she is not your lawyer.

Copyright, Trademark, Patents

Copyright just happens. Can be registered any time up until when you need to enforce, so typically is not registered until then. Mailing yourself something doesn't work to establish a patent or copyright date.

Trademark does too, in a limited fashion. By default, you get trademark on your usage *in the area where you do business.*

Patents (ugh)

Trade Secrets. You must make reasonable efforts to keep such things confidential, and that's why there are all those NDAs around.


What about photos of sculptures, etc.? Can I claim copyright on a photo of someone else's artwork? There's been a lot of back-and-forth on this. The core of copyright is that it takes only a tiny amount of creativity to claim copyright. Wrt works of art, how you use it matters. You can certainly use the photo for your own personal use, but you may not be able to defend much else about it. Example: Museum's photos of art. Courts are starting to say that if the photo is an attempt to faithfully reproduce the work of art, it's not creative.

Employment and Copyright

Freelance work - If you don't a contract and create something prior to payment who owns it? The contractor owns it at that point. For technical work in open source, there are other questions that need to be addressed.

Work made for hire is a very limited situation. Is the default in the case of work as an employee. A contract that says "this is a work made for hire" doesn't make it so.

For copyright purposes, "an employee" is determined by how much control the "employer" has over your work -- not the way the IRS determines it.

Paula recommends that her clients deal with this by having the author *assign* the copyright over. (California has started using the "work for hire" clause to define people as employees and demand unemployment tax, etc.)

No one really knows how the laws work when you telecommute across state lines, but Oregon specifically has a law that says Oregon employment law will apply if you live in Oregon.

Moral rights (Norin asks if there are any unassignable moral rights in the US). Europe, some parts of South America have this concept. They are inalienable; you can't sell them or give them away. We don't really have much in the US that's inalienable. We do have something like this that comes up for public works of art -- VARA. Things with fewer than a certain number of copies, is well known, attributed to a particular artist.

Oracle v. Google

Oracle's lawsuit against Google over Android.

In the US, juries decide facts, judges decide laws.

The judge had the jury assume certain things were coprightable. The jury found Google infringed (3% of the Java type stuff was copied). On the patent trial, Google didn't infringe. The judge left the question of whether the material was copyrightable open. He found the material wasn't copyrightable. The decision is worthwhile to read.

Judge already knew how to code, and taught himself Java during the trial so he'd have a better BS meter! Said copyright didn't apply to the API. Could have been patented, but wasn't. Says not all APIs are un-copyrightable, not even all of the Java APIs. But because this was functional and only a few ways to do it, you can't stop someone from using one of those ways.

See eff.org for coverage and the opinion.