BUS303: Strategic Information Technology

Maybe it's a matter of knowledge bias, but I usually wince when I see a discussion of intellectual property online. At best, people make mistakes. Only natural, nobody's perfect, but we can strive. At worst, people completely misunderstand every aspect of the topic. And this is a topic that comes up a lot online, after all.

So I thought I'd set the record straight with a set of essays discussing the topic, in a hopefully entertaining fashion, to improve understanding.

My Credentials

I am a lawyer, licensed in New York State in the U.S.A., and my work focuses on intellectual property. I have a background in computer programming, and during college I got interested in the intersection of law and technology (and found out I didn't really like coding that much) and decided to pursue a career in law. I've interned for the Electronic Frontier Foundation, the Creative Commons, and the New York Civil Liberties Union focusing on technology issues. I currently work in a boutique (read: specialist) intellectual property law firm in New York City.

Please note this disclaimer (I'm a lawyer, after all): I am not your attorney. Do not rely on this in making decisions; consult your own lawyer. This is basic educational information on intellectual property, not specific advice related to any specific situation, and this is no substitute for personal, retained (and paid) legal counsel. We, you and I, do not have an attorney-client relationship.

I'm going to be talking about United States law here, because I'm a U.S. lawyer. Specific rules in other countries will be different, but I won't be talking about specific rules much anyway, so what I say will generally hold up…broadly speaking.

What Is Intellectual Property?

A thing you own that isn't a physical thing.

Not so helpful, huh? I know.

Philosophical question for you: When you "own" a physical thing, be it a piece of land (what we lawyers call "real property") or things like your computer or backpack ("personal property" or "chattel property"), what does that actually mean?

This not being law school, I'll give you the answer. It means that you can control who can do what with it, and the law will back you up. If someone goes onto land you own without permission, that's a crime: trespassing. If someone takes a computer you own without your permission, that's larceny, also known as theft (or possibly robbery or burglary, depending on the details, but that's not relevant). That's the fundamental right of ownership.

Further, in addition to crimes, trespassing and theft are examples of torts.

Torts?

I know, it's a cinnamon bun. Do you know how hard it is to find a gif of a tort?

No, I don't mean pastries.

Larceny and trespassing are crimes, meaning that if you commit them, the enforcement arm of the government, the police and the district attorneys –

In the criminal justice system…

– right, them. They, on behalf of the populace, prosecute crimes. They have the power (through the justice system) to lock the people who commit crimes in jail, force them to pay penalties, require community service, and other forms of punishment.

But also, if someone takes something of yours, or trespasses on your land, or otherwise harms you, you can sue that person to get your stuff back, or get them to stop, or even get some sort of monetary compensation for the harm that person did you.

The world of these lawsuits, called civil lawsuits, is divided into two types of lawsuit: contracts, which is to say, "I had a contract with you and you broke the terms", and torts, which is to say, anything that isn't contracts.

Really helpful, I know, but that's actually the definition. Torts include theft (which is called "conversion" or "trespass to chattels"), trespassing on land…and the torts of infringement of intellectual property. ("Infringement" just means "violating a right to something".)

Keep in mind that those "rights to control use" have limits. If someone is trying to escape a disaster, or the borders of your land aren't clear, or even if there is a long tradition of using a path on your land as a shortcut and you haven't done anything about it for decades, your lawsuit for trespassing can be weakened or even thrown out. (Those are all standard examples from law school, by the way.) For theft, if someone has a mixup and grabs the wrong laptop, you certainly can get it back, but you can't complain that this was a horrible wrongdoing and you deserve many thousands of dollars in damages.

For that matter, if you can't prove something was yours, you might not even be able to get it back  –  which is part of why bigger pieces of personal property, and especially real property, get registered with the government (such as deeds to land or titles to cars).

Real and Intellectual

To recap: When you own a piece of physical property, you can control who can do what with it, within limits.

The same is true for non-physical property, where the important issue isn't the physical thing, but the thought or concept. Such as the idea and design of a product you invented (as distinct from any specific copy of that design, sold as a product), or the content of a book or song you wrote (as distinct from a copy of the book or a CD with the song on it), or the logo for your company (as distinct from a sign bearing that logo).

Not coincidentally, I just listed the three major forms of intellectual property (commonly shortened to "IP"): patents (invention), copyright (content of book), and trademark (logo).

Because trade secrets and the right of publicity are a bit outside the scope of an introductory essay.

So, this is the upshot:

If you have a patent or copyright or trademark, then you can control, within limits, what people do with your idea or content or logo.

Next, I'll discuss the specifics: why intellectual property exists, what each form of intellectual property right protects, and the limitations on each form.

Source: Will Frank
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