[conspire] Patents & copyrights, ideas & expressions

[Rick Moen]

Posted with Paul's kind concurrence.



Date: Mon, 21 Sep 2015 17:39:20 +0000 (UTC)
From: Paul Zander <paulz at ieee.org>
To: Rick Moen <rick at linuxmafia.com>
Subject: IP

Rick,

I would appreciate your comments from a legal / moral viewpoint.  What
is the "right" thing to do?  This is sort of an "open source" hardware
project.

While you are working on updating your Web site, I am working on a
hardware project.  I wanted a simple way to automatically switch power to
Arduino.  I found two choices.

[RM: details of choices snipped]

Being a hardware guy, I built one up.  Some of the parts are newly
purchased from HSC.  Some I have had since before Linux was existed.  Now,
I am thinking maybe I should make a PCB so the next one will be easier to
wire.  Then I started to think beyond just "personal use".  Maybe I know
some other people who would want one.  Maybe I could even sell these and
make a pile of coins.  The Web site says copyright on the schematic.  If
there were a Creative Commons logo, I might know what to do.

Can I re-draw their schematic and legally ignore their copyright because
mine isn't just a cut and paste?  Should I reference their Web site in my
descriptions?  Should I contact the Web site and explain my intentions
first?  I don't think I should just ignore that someone else contributed
some significant mental effort.  IMHO, that would not be the "right thing",
even though the Internet is filled with copies without attribution.

Paul




(First, the answer about legal aspects.)

Date: Mon, 21 Sep 2015 11:58:55 -0700
From: Rick Moen <rick at linuxmafia.com>
To: Paul Zander <paulz at ieee.org>
Subject: Re: IP

Quoting Paul Zander (paulz at ieee.org):

> Rick,
> 
> I would appreciate your comments from a legal / moral viewpoint.  What
> is the "right" thing to do?  This is sort of an "open source" hardware
> project. 

Yeah, but it's actually illegal for me to give you legal advice with
specific facts in which you are involved.  If you are worried about
legal threats, you would need to pay an attorney for professional legal
advice.  _My_ doing the same thing is Unauthorized Practice of Law.

What is lawful is my talking to you about abstract legal issues.  So,
that is what I'm going to do.  You will have to decide how to deal with
your own specific situation.


Patent:  The owner of the patent over a useful technological method 
or process (an invention) has the right to prevent others from
commercially making, using, selling, importing, or distributing a
patented invention without permission -- or at least to charge them
money ('royalties') for such commercial uses -- during the runtime of
the patent.  Patents expire and then the invention in question is the
right of any person to use without charge.  Patents exist only if bought
for money to, and registered with, the US Patent and Trademark Office.

Copyright:  A copyright is a set of legal rights (over distribution,
control over derivative works, duplication, and some other) concerning a
specific expression of a creative work.  The exclusively is based on 
the form or manner in which the work is expressed.  If a pictorial,
graphic or sculptural work is a useful article, it is copyrighted only
if its aesthetic features are separable from its utilitarian features. A
useful article is an article having an intrinsic utilitarian function
that is not merely to portray the appearance of the article or to convey
information. They must be separable from the functional aspect to be
copyrighted.  (This is related to the 'idea-expression dichotomy', which 
I'll detail more below.)

Copyrights do not need to be paid for and registered (with the Library
of Congress Copyright Office), but doing so yields stronger enforcement
rights.  Copyright, unlike patent, comes into existence and is owned by
the creator automatically the instant he/she puts the creative work into
'fixed form' (e.g, written down for a novel, drawn for a drawing).
Because of lobbying by Our Lords in Hollywood, copyright terms keep
getting longer, although in theory a copyright is supposed to eventually
expire.

It is not obvious to me that a PCB schematic has a lot of creativity in
the form or manner of expression of its drawing.  You do not look at a
schematic and say 'Hey, that looks like a Leonardo di Vinci schematic; I
recognise his style!'.  So, I would imagine that redrawing any schematic 
means you are applying your own creativity to its expression, if it even
makes sense to say that a schematic is a creative work of expression at
all.

About the 'idea-expression dichotomy':  The law is very wary of people 
attempting to use copyright to block people's access to inventions, so
ideas, i.e., designs, are not eligible for copyright.  A design might be
eligible for patenting, but never copyright.  Only a _creative
expression_ is copyright-eligible.  Copyright covers only the original
_expression_ of ideas, and not the ideas themselves.  Express the idea
differently, and you have avoided infringing any copyright that may (or
may not) exist.



(Second, answering Paul's question about moral aspects, as best I could.)

Date: Mon, 21 Sep 2015 18:51:05 -0700
From: Rick Moen <rick at linuxmafia.com>
To: Paul Zander <paulz at ieee.org>
Subject: Re: IP

Hey there!

I forgot to address the moral angle, being so careful to not commit 
unauthorised practice of law.  The _former_ I can editorialise about 
with no hassle.

I'd redraw the schematic and ignore their alleged copyright, which per
my understanding can't prevent you from re-using the design anyway
(since you can't copyright design, that being an idea).

Patents are a topic with lots of debatable areas, and without looking up the
patent you cannot know whether it's even (1) still in force and (2)
relevant to what _you_ are doing.  Holders of valid, relevant patents 
_can_ seek royalties from individuals using the methods in the privacy
of their own homes, but they basically never do:  The reasons inventors
pay for patents involve expectation of getting paid for all deployments
of the invention, but de-facto this concern follows Sutton's Law.

(Colloquially:  Sutton's Law says 'Go where the money is', after famous
bank robber Willie Sutton who allegedly was ask by some reporter why he
robbed banks, and replied 'Because that's where the money is.')

Adjust your moral scruples to suit.

Being a Bad Person[tm], I sometimes violated the Unisys patent on
LZW-compressed .gif files, the extremely weak and possibly invalid RSA
patent affecting HTTPS, and recently in all likelihood sundry MPEG-LA
patents on a bunch of AV things.