(ISC)2 CISSP Certified Information Systems Security Professional Official Study Guide. Mike Chapple
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in prison for repeat offenders. Nonprofit institutions such as libraries and schools are exempted from this provision.
The DMCA also limits the liability of internet service providers (ISPs) when their circuits are used by criminals violating the copyright law. The DMCA recognizes that ISPs have a legal status similar to the “common carrier” status of telephone companies and does not hold them liable for the “transitory activities” of their users. To qualify for this exemption, the service provider's activities must meet the following requirements (quoted directly from the Digital Millennium Copyright Act of 1998, U.S. Copyright Office Summary, December 1998):
The transmission must be initiated by a person other than the provider.
The transmission, routing, provision of connections, or copying must be carried out by an automated technical process without selection of material by the service provider.
The service provider must not determine the recipients of the material.
Any intermediate copies must not ordinarily be accessible to anyone other than anticipated recipients and must not be retained for longer than reasonably necessary.
The material must be transmitted with no modification to its content.
The DMCA also exempts activities of service providers related to system caching, search engines, and the storage of information on a network by individual users. However, in those cases, the service provider must take prompt action to remove copyrighted materials upon notification of the infringement.
Congress also included provisions in the DMCA that allow the creation of backup copies of computer software and any maintenance, testing, or routine usage activities that require software duplication. These provisions apply only if the software is licensed for use on a particular computer, the usage is in compliance with the license agreement, and any such copies are immediately deleted when no longer required for a permitted activity.
Finally, the DMCA spells out the application of copyright law principles to the streaming of audio and/or video content over the internet. The DMCA states that these uses are to be treated as “eligible nonsubscription transmissions.”
Trademarks
Copyright laws are used to protect creative works; there is also protection for trademarks, which are words, slogans, and logos used to identify a company and its products or services. For example, a business might obtain a copyright on its sales brochure to ensure that competitors can't duplicate its sales materials. That same business might also seek to obtain trademark protection for its company name and the names of specific products and services that it offers to its clients.
The main objective of trademark protection is to avoid confusion in the marketplace while protecting the intellectual property rights of people and organizations. As with copyright protection, trademarks do not need to be officially registered to gain protection under the law. If you use a trademark in the course of your public activities, you are automatically protected under any relevant trademark law and can use the ™ symbol to show that you intend to protect words or slogans as trademarks. If you want official recognition of your trademark, you can register it with the United States Patent and Trademark Office (USPTO). This process generally requires an attorney to perform a due diligence comprehensive search for existing trademarks that might preclude your registration. The entire registration process can take more than a year from start to finish. Once you've received your registration certificate from the USPTO, you can denote your mark as a registered trademark with the ® symbol.
One major advantage of trademark registration is that you may register a trademark that you intend to use but are not necessarily already using. This type of application is called an intent to use application and conveys trademark protection as of the date of filing provided that you actually use the trademark in commerce within a certain time period. If you opt not to register your trademark with the PTO, your protection begins only when you first use the trademark.
The acceptance of a trademark application in the United States depends on these two main requirements:
The trademark must not be confusingly similar to another trademark—you should determine this during your attorney's due diligence search. There will be an open opposition period during which other companies may dispute your trademark application.
The trademark should not be descriptive of the goods and services that you will offer. For example, “Mike's Software Company” would not be a good trademark candidate because it describes the product produced by the company. The USPTO may reject an application if it considers the trademark descriptive.
In the United States, trademarks are granted for an initial period of 10 years and can be renewed for unlimited successive 10-year periods.
Patents
Utility patents protect the intellectual property rights of inventors. They provide a period of 20 years from the time of the invention (from the date of initial application) during which the inventor is granted exclusive rights to use the invention (whether directly or via licensing agreements). At the end of the patent exclusivity period, the invention is in the public domain available for anyone to use.
Patents have three main requirements:
The invention must be new. Inventions are patentable only if they are original ideas.
The invention must be useful. It must actually work and accomplish some sort of task.
The invention must not be obvious. You could not, for example, obtain a patent for your idea to use a drinking cup to collect rainwater. This is an obvious solution. You might, however, be able to patent a specially designed cup that optimizes the amount of rainwater collected while minimizing evaporation.
Protecting Software
There is some ongoing controversy over how the intellectual property contained in software should be protected. Software seems to clearly qualify for copyright protection, but litigants have disputed this notion in court.
Similarly, companies have applied for and received patents covering the way that their software “inventions” function. Cryptographic algorithms, such as RSA and Diffie–Hellman, both enjoyed patent protection at one point. This, too, is a situation that poses some legal controversy.
At the time this book went to press, the U.S. Supreme Court was considering the case Google v. Oracle, a dispute that has been working its way through the court system for over a decade. This case centers on issues surrounding the Java API and is likely to set a precedent that will govern many software intellectual property issues.
In the technology field, patents have long been used to protect hardware devices and manufacturing processes. There is plenty of precedent on the side of inventors in those areas. Recent patents have also been issued covering software programs and similar mechanisms, but these patents have become somewhat controversial because many of them are viewed by the technical community as overly broad. The issuance of these broad patents led to the evolution of businesses that exist solely as patent holding companies that derive their revenue by engaging in legal action against companies that they feel infringe upon the patents held in their portfolio. These companies are known by many in the technology community under the derogatory name “patent trolls.”
Design Patents
Patents actually come in two different forms. The patents described in this section are utility patents, a type of patent that protects the intellectual property around how an invention functions.
Inventors may also take advantage of design patents. These patents cover the appearance of an invention and last for only 15 years. They do not protect the idea of an invention, only the form of the invention, so they are generally seen as a weaker form of intellectual property protection