"Ps and Qs of IP, Privacy Policies and Open Source Software" presentation, given October 4, 2014 at WordCamp Tampa.

1. Ps and Qs of IP, Privacy
Policies and Open Source
Software
WordCamp Tampa
October 4, 2014

2. Intellectual Property
• Copyright
– Expression of ideas
• Trademarks
– Source indicator- logos, phrases
• Patents
– Inventions, business methods

3. Copyright
• Simple to invoke
– Fixation in a tangible medium
• Long period of protection
– Life of author + 70 years-single author
• Serious penalties
– Criminal, fines of up to $250,000 per offense

4. Copyright
• Registration is your best bet
– Gives you advantages
– Don’t mail it to yourself!!!
• Registering software
– First and last 25 pages of source code
– Elements you want to protect, can include
audiovisual elements

5. Copyright
• Owner gets a bundle of rights
– Reproduce work
– Display it publicly
– Make derivative works
– Distribute copies
– Perform the work- literary, dramatic works
– Perform via digital transmission- sound
recording

6. DMCA-Digital Millennium Copyright Act
• Covers sites where content is posted by
others
• Need copyright agent to receive takedown
notices, put back notices
• Viacom v. YouTube
– Upholds safe harbor protection for websites,
puts responsibility to enforce rights on
copyright owner instead

7. Copyright
• Know who owns the work, get permission
(license)
• Get permission in writing
• Don’t just rely on fair use
• Pay attention to terms of use, licenses

8. Creative Commons
• Variety of Licenses
– Attribution
– Attribution-Share Alike
– Attribution-NoDerivs
– Attribution-Non Commercial
– Attribution-Non Commercial- Share Alike
– Attribution-Non Commercial-No Derivs

9. Trademark
• Source indicator for goods or services
• Matter of federal, state law
• Can include
– Names, slogans
– Logos
– Colors
– Scents
– Sounds

10. Trademarks
• Strongest protection- Federal registration
• Done by class of goods or services
• Can reserve mark prior to actual use
through application
• Test for infringement
– Likelihood of confusion
– Unauthorized use of mark

11. Trademark
• Standard: Use in commerce
– Strongest protection: federal registration
• Factors for strength of mark:
– Generic
– Descriptive
– Suggestive
– Arbitrary or Fanciful

12. Trademark
• New gTLDs
– Concern for trademark owners
– Over 1900 domains applied for with ICANN
• .app, .blog, .book, .sucks, .rip
• Applications being evaluated
• Some going to contract soon
– Trademark Clearinghouse
• Will give TM owners opportunity to object to
registrations for infringing domains

13. Privacy Policies
• Why do we have
privacy policies?

14. Privacy Policies
• And people want to
know what you’re
doing with their data

15. Privacy Policies and ToS
• …but let’s face it, most people just click
‘accept’ and here’s why…
Why We Just Click ‘Accept’
Trying to make
the update pop
up go away
So much tiny
font…
Just take me to
my download
already!
Boring!

16. Species of Privacy Laws
• Species of Privacy Laws
– FERPA
– HIPAA
– COPPA
– CALOPPA
– Potpourri of State Privacy Laws
– EU Data Privacy Laws
– Cloud
– Mobile Payments

17. Terms of Service or Use/EULAs
• Rules of the road
• Govern what you can do
– Hey, that’s my light saber!
• Apps w/ terms that conflict with the app
they work with
– i.e. SnapHack and Snapchat

18. COPPA
• Children’s Online Privacy Protection Act
(COPPA) (1998)
– Prohibits operators of commercial websites
and online services;
– From collecting or disclosing personal
information
– Of minors under age 13;
– Without verifiable parental consent

19. COPPA
– Notice required
• Operators must tell parents what information is
collected and how it is used, even if they consent
– Not just for Kids’ Sites
• Applies to any site that collects birth date
information from children
• Many sites forbid registration if D.O.B. indicates
user is under 13, to avoid COPPA problems
• COPPA prohibits conditioning a child’s participation in a
game, or the offering of a prize, on child disclosing “more
personal information than is necessary” to participate

20. CALOPPA
• California Online Privacy Protection Act
• Requires all commercial operators of
websites or online services conspicuously
post privacy policies to inform consumers
about
– Categories of PII being collected and
– With which 3rd parties the PII will be shared

21. CALOPPA
• New requirements- eff. Jan 1, 2015
– “Delete button”: Require retailer to allow minor
who is registered user to delete or request
deletion of any content posted by the minor
– Operators must provide minors with notice of
ability delete online content and instructions
– Operators prohibited from marketing or
advertising certain categories of products or
services to minors

22. CALOPPA
• Joint Statement of Principles
– With major app platforms
– Voluntarily agreed to
• Provide consumers with opportunity to review
app’s privacy policy before downloading
• Work to educate app developers about their
privacy obligations, and
• Develop tools for consumers to report non-compliant
apps

23. DMCA
• Make sure you have a copyright agent
• Register with the Copyright Office
• Have a takedown/put back policy
• Follow it!

24. Best Practices
• Keep it current
• Revisit often
• Keep it prominent
• Should be living documents
• Revise often, adapt to meet new needs
• Monitor FTC rulings, developments
• Be really careful about apps & kids
• Protect the data you collect
• Collect only as much data as you need

25. Open Source Software
• Software where source code is available
• Greater freedom to use, modify
• Great variety in license terms, types
• Can save you time, money
• But what does that license say?

26. Open Source- Who is
Licensing?
• Author
• Contributor
• Distributor

27. Licensing Spectrum
BSD/MIT CDDL/MPL GPL2/GPL3
Less Restrictive/Wide Open More Restrictive/‘Militantly Open’

28. Terms to Consider
1. Heredity
2. Copyleft
3. Linking
4. Open source improvements
5. Patent Grant
6. Merging
7. Distribution
8. Change tracking
9. Attribution
10. Hardware Locks

29. License Terms- Permissive
• Beer License
– Can do what you want with source code
• BSD
– Have to use copyright notice
• MIT
– More like a license grant
• Apache
– Patent grant, attribution requirement

30. Hybrid Licenses
• Usually revocable if you violate terms
• Eclipse
– Have to make source code available
• MPL, CDDL
– Very popular
– MPL requires new license for new
contributions
• Artistic License 2.0
• APL

31. Restrictive/Copyleft Licenses
• Keep software open source forever
• GPL, LGPL
• GPL2
• GPL3
• LGPL
– Exceptions for linking to use libraries

32. GPL 2 or Later
• GPL 2
– Strong copyleft
– No linking
– Can charge for object code, but must provide
source code
– Have to give attribution
– No hardware locks

33. GPL 3
• Major changes
– Cannot use with digital rights management
media
– Adds hardware lock protection
– Grant anyone using or modifying code license
to use patents that protect algorithms in code
– Can’t link to code w/ DMCA protections

34. Why Do the Licenses Matter?
• Can affect
– Products
– Company
– Finances
• And everyone’s
favorite….lawsuits!

35. Recent Litigation
• Patent cases
• Copyright cases
– BusyBox software
– Table Turner
– Palm Pre

36. Best Practices
• Know where every line of code came from
• Know what the license says
• Include required documentation
• Know what will trigger the license
• Cover open source issues in contracts
with suppliers
– Indemnities
• Train your team

37. More Tips
• Evaluate risk
– Value versus risks
• Be very, very responsive to claims
• Audit and track your IP
• Create policies and follow them
• Document compliance efforts

38. How Not to Provide Author Info
• Don’t just include link to generic license
• Have to provide the info to fill in the blanks
to help people comply

39. Questions?
• Follow me on Twitter
@punklawyer
• @ChrissieScelsi