At the February 24th Open Work Session, students in HyperX had the opportunity to hear from Jeff Glazer, a Supervising Attorney in the Law and Entrepreneurship Clinic (L&E Clinic), at the UW Madison. The L&E Clinic provides free legal services to students and faculty at UW Madison, as well as to startups worldwide.
In his talk, Jeff led students on an informational journey through the hardships, pitfalls, and must-knows of protecting intellectual property (IP) as a student, especially concerning information technology, or software. When it comes to working on teams, Jeff had this word of advice to students in HyperX:
“Talk early and often around expectations around anything related to the venture.”Jeff Glazer, Law and Entrepreneurship Clinic
There should be a constant, recorded, discussion surrounding who owns IP in student entrepreneurial or exploratory projects. It is important to document these conversations, so that if something were to happen in the future, there would be proof that all those involved came to an agreement on X, Y, and Z about the product or software.
To protect against IP infringement outside of the classroom or the metaphorical sandbox, there are three key areas to be aware of: copyright, patents, and trade secrets.
“Nobody understands it, and in terms of business law it is the single hardest body of law that exists.”Jeff Glazer, Law and Entrepreneurship Clinic
Copyright law protects everything from art to architecture to music to books to software, even from creative expression that does not yet exist. Copyright is defined as protecting “original works of authorship fixed in a tangible medium of expression.” Which is a fancy way of saying anything that could be put down or printed on a piece of paper is eligible for copyright, including lines of code — no matter how ineffective or inefficient that would be.
Original: You came up with it, which automatically rules out to what has been copy and pasted.
Works of Authorship: The work has to be something a human is capable of conceiving. There is a caveat there, instruction sets are not protectable under copyright. Why is that? Instructions, like facts (such as the law of gravity) are not copyrightable — they are just simply facts, anyone can know them.
It is also because of something called the Idea-Expression Dichotomy. Take for example software development. Plenty of creativity goes into the job of software development but it is at its core an instruction set, the expression cannot be separated from the idea. But, if for example instead of writing a very efficient code to create the software, there is a lot of creativity or “color” included in the code — that “color” is protectable.
Copyright laws are good at protecting against literal infringement, ie. someone copying and pasting, or in some other way stealing your original work. However, work that is taken and reproduced in someone’s own work (non literal) is difficult to protect against.
What happens to works that are created by an artificial intelligence?
To answer this question, Jeff Glazer pointed to an example called the “monkey selfie.” In this lawsuit, a photographer went into the wild to take photographs of monkeys (original work), and at some time in this trip he left his camera unattended. And, in the time the camera was left unmanned a monkey came and used the camera to take a “selfie” of its own face. This photo later went on to be on the cover of National Geographic, and was quickly spread on the internet and used without the photographers permission. When the case went to court, it was decided that since the photographer did not take the photo, despite it being his camera, and since monkeys (like artificial intelligence) are not recognized under copyright, no one owns the photo, and there is no copyright infringement.
The word “patent” usually refers to the right to protect granted to anyone who invents something new, useful and non-obvious. Software cannot be patented because it very infrequently embodies a process that has never existed before. Additionally, laws of nature or mathematical functions cannot be patent protected. A unique implementation of a mathematical algorithm can be, but not the algorithm itself.
If your invention is new, useful and non-obvious then you, as the patent holder, get 20 years from date of application to defend the use of your patented invention, process, etc.
New: No one has done this exact thing before.
Useful: What you are trying to patent is “not a doorstop.”
Non-obvious: Nothing like this thing has ever existed before, ie. would a person normally skilled in the art know to add C, if A+B are known? Or, was C something that was previously thought inconceivable and you, as the patent holder, created it?
Trade secrets are the best way to ensure the protection of your intellectual property, especially software or lines of code.
“If you do not tell anyone, they cannot copy it. It is as simple as that.”Jeff Glazer, Law and Entrepreneurship Clinic
What happens when you have to engage other people in the coding project?
First and foremost, everyone involved must sign a Non Disclosure Agreement (NDA). However, a NDA is not enough to protect IP when the project is scaled to a group of 50 individuals. In that instance, there are two ways to ensure IP is protected when it must be shared: contractual and procedural confidentiality agreements.
Contractual confidentiality: An agreement between two or more parties in which one party agrees not to disclose protected information. This kind of contract is only good adhoc, when the damage has already been done after an information leak, or espionage.
Procedural confidentiality: Access granted to specifically chosen individuals, and barred from those that do not need to know. This kind of confidentiality protects against the potential for one individual to walk off with all of the IP, or have access to too much information.
Bio: Jeff Glazer
Jeff Glazer began his career as a web application and software developer; he developed some of the first corporate intranets and internet-enabled business processes. Since then he has also worked in private practice and started multiple companies. He is also one of the foremost experts on blockchain technology in the Madison area.
Click here for more information on our speaker, Jeff Glazer.
You can contact him via his email: firstname.lastname@example.org