Subject Re: [IB-Architect] Intellectual Property and the Architecture List
Author Helen Borrie
At 11:22 AM 14-06-00 -0400, you wrote:
>Several days ago, Jason posted a message that read (in part):
>"Additionally, much of what is in IBO that makes it special will never be in
>IBX unless it were to be "intellectually stolen". There are some very unique
>and special algorithms that are under copyright protection and I fully
>intend to guard them as such."
>Ignoring the problem that algorithms are not copyrightable material, this
>passage raises a question for this list that must be addressed: Can an
>individual claim legal or moral ownership of intellectual property discussed
>on this list?
>The basis of copyright protection is that an original work is protected
>from unauthorized copying, but the protection is limited to expression;
>the ideas behind that expression cannot be copyrighted.

Ahem. Let's clarify here the difference between copyright and patent.

Copyright protects an author from unauthorised copying, it is true. This
aspect of copyright has been foreground in the past 25 years because of
technological advances in that period which have made it fast, easy and
cheap to create exact facsimilie copies of written material. Publishers in
many countries exerted pressure to tighten up the protection of *their*
copyright - that is, their stake in the published work.

Copyright, in legal terms, always did include this aspect; but, until
relatively recent times, it was a long and often expensive task to take the
content of a publication, re-set it in type and re-publish it illegally.

The aspect which concerns all of us, with open source code, is that people
may *use* the source code as the basis for their own creations. What they
may not do is publish or generate products based on this code and claim it
as their own. Also, they may not derive revenue from distributing that
source code. That is why we need open source licences - to make it clear
what ones obligations are in the reuse of the source code.

The other aspect of copyright is the intellectual property one. Open
source code is just that - it reveals not just how the product was made but
also the abstract model on which it was built. That has repeatedly been
proven to be protected by copyright outside the US.

In the US, your legislative system applied the Patents concept to
intellectual property. In one sense, this gives you the opportunity for
more explicit protection of your abstract model. In another sense, it
deprives you of the protection that international copyright law always gave
you. In countries where Common Law applies, the intellectual property is
protected from plagiarism in the same way that international copyright law
protects book authors. I may write a book *about* your theory that the
earth is flat, but I may not imitate your theory and claim it as my own.

> Patent protection
>is given to inventions in exchange for public disclosure of the invention,
>but a patent must undergo scrutiny before it is issued; absent a decree by a
>governmental patent office, no intellectual property ownership can be

Note that this only applies in the U.S. It is a distasteful process that
has a crippling impact on people outside the US...but that is another
topic. According to my reading on the topic, that is a correct description
of the situation in the US but not for actions brought in countries where
all parties are outside US jurisdiction. However, I think that doesn't
help the present case. I presume Jason has the patents he needs, or he
would not be distributing the full source of his products.

>Intellectual property can also be protected under contract law
>as trade secrets, but only among parties to a contract.

And this is true in other countries also. However, trade secrets
legislation cannot be applied to open source software. Something made
freely available to the public cannot be a secret. It would be a fool who
posted some information to a public list server, told people to help
themselves to his source code and said "But don't tell anyone, it's a secret."

>The only basis for a claim of intellectual property protection on this
>list could be trade secrets transmitted by contract (i.e. license), and
>then only if some contract or license can be imputed by membership of
>this list.

That's a red herring, but I guess I don't need to tell you that. Even so,
I wouldn't want to stop anyone disclosing a trade secret in this forum, if
they chose to do that.

>I have not agreed to any such contract or license. Any work discussed
>on this list is automatically subject to copyright protection. A
>work discussed can also contain patented material such as the InterBase
>event mechanism. But I think we need a clarification from the moderator
>on the policy on work presented on this list for which other claims
>are made.

My attitude is this (and it can only be an attitude): what you contribute
to the list, you contribute at your own risk. By the same token, what you
take from the list, you take at your own risk. It is not the
responsibility of the list moderator to assess the risks of plagiarism,
patents claims, breach of copyright, etc. One must assume that, if a
contributor submits intellectual property for discussion, s/he has the
legal protection aspect covered. If a reader of this material has a mind
to take the information and do something with it, s/he had better
investigate any legal proscription or proceed in peril.

>One such policy could be that any work discussed on this list is subject
>to copyright, patent, and any other intellectual property statutes in
>force in the list members country of residence, but that list member
>can claim trade secret, license, or contractual protection for any
>ideas or algorithms discussed on this list.

No: I do not hold with having such a policy. People are expected to
behave within the law, both contributors and readers. They may make
requests for confidentiality but there is no way a policy could be made to
enforce it. I'd certainly not want to impose a policy that prevented
people from stating the legal protection they had secured for their
work; but if they did not want it to be public then it is up to them not
to make it public.

>An alternative policy is that a list member is free to use whatever
>theory he wishes to enforce intellectual property disclosed on this
>list; that a list members surrenders no rights, real or imagined, to
>work discussed on this list.

Again, there is no way to enforce such a policy. The very existence of the
message provides a clear track as to who the instigator of an idea would
be. Every individual has the freedom to express a theory, model,
whatever. It's certainly my "policy" to keep archives of lists I moderate
and it's also my policy to discourage threads that are off-topic,
maliciously provocative or misrepresentative of the facts.

>We have had a claim of special intellectual property rights to the
>internals of a commercial product promoted by a member of this list
>and a threat to enforce those rights.

I'm aware that you made some representations in recent days regarding an
open source product that you wrongly, or mistakenly, implied was not open
source. I don't have a problem, for example, with discussions in this
forum of the internals of the Delphi VCL. I guess nobody feels threatened
by the licence conditions of the Delphi VCL, when discussing its abstract

> Personnally, I do not wish
>to be at risk for unsolicated disclosures that appear in my mailbox.
>If the policy of this list is that I can be bound to a claim of
>intellectual property ownership by receipt of a mail message, I
>can not participate on this list.

I reiterate that there is and shall be no proceeding in this list, with
regard to intellectual property, that I am going to declare by any policy
to be subject to protection different to the protection its owner has in
the rest of the universe. Nobody else has asked me for this and I have NO
intention of doing anything quite so daft.

With respect,
"Ask not what your free, open-source database can do for you,
but what you can do for your free, open-source database."