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  • ISBN-10 ‏ : ‎ 1111534128
  • ISBN-13 ‏ : ‎ 978-1111534127

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Ethics in Information Technology, Fourth Edition

Chapter 6 – Intellectual Property

Self-Assessment Questions
1. d
2. True
3. fair use doctrine
4. True
5. Digital Millennium Copyright Act
6. trademark
7. True
8. c. trade secret
9. True
10. the Trade-Related Aspects of Intellectual Property Rights Agreement
11. False
12. reverse engineering
13. prior art
14. True
15. True

Discussion Questions

1. Explain the concept that an idea cannot be copyrighted, but the expression of an idea can be, and why this distinction is a key to understanding copyright protection.
The concept that an idea cannot be copyrighted but the expression of an idea can be is key to understanding copyright protection. For example, an author cannot copy the exact words that someone else used to describe his feelings during a World War II battle, but he can convey the sense of horror that the other person expressed. Also, there is no copyright infringement if two parties independently develop a similar or even identical work. For example, if two writers happened to use the same phrase to describe a key historical figure, neither would be guilty of infringement. Of course, independent creation can be extremely difficult to prove or disprove.

2. Some view the DMCA as a boon to the growth of the Internet and its use as a conduit for innovation and freedom of expression. Others believe that the DMCA has given excessive powers to copyright holders. What is your opinion, and why?
Responses will vary. Without the safe harbors that the DMCA provides, the risk of copyright liability would be so great as to seriously discourage ISPs from hosting and transmitting user-generated content. Others see the DMCA as extending too much power to copyright holders. They share the viewpoint of Verizon General Counsel William P. Barr, who stated in testimony before Congress that the “broad and promiscuous subpoena procedure” of the DMCA grants “truly breathtaking powers to anyone who can claim to be or represent a copyright owner; powers that Congress has not even bestowed on law enforcement and national security personnel.”

3. What is a cross-licensing agreement? How do large software companies use such agreements? Do you think their use is fair to small software development firms? Why or why not?
This is an agreement in which each company agrees not to sue the other over patent infringements. Large companies, such as Microsoft, IBM, Sun Microsystems, and Hewlett-Packard, go into agreement with one another to obtain the rights to technologies that it might use in its products. This provides a tremendous amount of development freedom without the risk of expensive litigation.

Responses will vary. It does not seem fair that small businesses must pay an additional cost, from which larger companies are exempt, to license the patents they use.

4. What is the role of the WTO and what is the scope and intent of its TRIPS agreement?
The World Trade Organization (WTO) deals with rules of international trade based on WTO agreements that are negotiated and signed by representatives of the world’s trading nations.

The WTO developed the Agreement on Trade-Related Aspects of Intellectual Property Rights, also known as the TRIPS Agreement, to establish minimum levels of protection that each government must provide to the intellectual property of all WTO members. This binding agreement requires member governments to ensure that intellectual property rights can be enforced under their laws and that penalties for infringement are tough enough to deter further violations.

5. Discuss the use of a patent by a software manufacturer to protect against the unauthorized use of its software. Is this an effective approach? Which would you recommend – the copyright or patent approach—to safeguard software? Why?
Responses will vary. Some software experts think that too many software patents are being granted, and they believe that this inhibits new software development.

6. Discuss the conditions under which a company’s customer list can be considered a trade secret.
Legally, a customer list is not automatically considered a trade secret. If a company doesn’t treat the list as valuable, confidential information internally, neither will the court. The courts must consider two main factors in making this determination. First, did the firm take prudent steps to keep the list secret by taking the following actions?

– Labeling it as confidential
– Storing it in a locked facility or in a password-protected computer file
– Limiting access to a small number of people on a need-to-know basis
– Requiring employees to sign a nondisclosure agreement that specifically mentions customer lists

Second, did the firm expend money or effort to develop the customer list? The more the firm invested to build its customer list and the more that the list provides the firm with a competitive advantage, the more likely the courts are to accept the list as a trade secret. A customer list that can be easily recreated by accessing publicly available sources, such as trade journals or even the telephone book, will not qualify as a trade secret.

7. What is a submarine patent? Do you think that the use of a submarine patent is an ethical practice by information technology manufacturers? Why or why not?
A standard is a definition that has been approved by a recognized standards organization or accepted as a de facto standard within a particular industry. Standards exist for communication protocols, programming languages, operating systems, data formats, and electrical interfaces. A patented process or invention that is surreptitiously included within a standard without being made public until after the standard is broadly adopted is called a submarine patent.

8. Identify and briefly discuss three key advantages that trade secret law has over the use of patents and copyrights in protecting intellectual property. Are there any drawbacks with the use of trade secrets to protect intellectual property?
Trade secret law has several key advantages over the use of patents and copyrights in protecting companies from losing control of their intellectual property, as summarized in the following list:
• There are no time limitations on the protection of trade secrets, as there are with patents and copyrights.
• There is no need to file an application, make disclosures to any person or agency, or disclose a trade secret to outsiders to gain protection. (After the USPTO issues a patent, competitors can obtain a detailed description of it.)
• Although patents can be ruled invalid by the courts, meaning that the affected inventions no longer have patent protection, this risk does not exist for trade secrets.
• No filing or application fees are required to protect a trade secret.

Drawbacks of using trade secrets to protect intellectual property: the trade secret laws vary greatly from country to country – the Philippines provides no legal protection for trade secrets and many Asian countries require foreign countries to operating there to transfer rights to their technology to locally controlled enterprises. Trade secrets can be lost and employees are the greatest threat to the loss of company trade secrets, whether by accident or theft.

9. What problems can arise in using nondisclosure and noncompete agreements to protect intellectual property?
It can be difficult to get employees to agree to sign them – especially noncompete agreements. It can also be difficult and expensive to interpret and enforce them.

10. Outline an approach that a university might take to successfully combat plagiarism among its students.
Some of the actions that schools can take to combat student plagiarism include:
• Help students understand what constitutes plagiarism and why they need to cite sources properly.
• Show students how to document Web pages and materials from online databases.
• Schedule major writing assignments so that portions are due over the course of the term, thus reducing the likelihood that students will get into a time crunch.
• Make clear to students that instructors are aware of Internet paper mills.
• Ensure that instructors both educate students about plagiarism detection services and make them aware that they know how to use these services.
• Incorporate detection software and services into a comprehensive anti-plagiarism program.


11. Under what conditions is the use of reverse engineering an acceptable business practice?
The courts have ruled in favor of using reverse engineering to enable interoperability. In the early 1990s, video game maker Sega developed a computerized lock so that only Sega video cartridges would work on its entertainment systems. This essentially shut out competitors from making software for the Sega systems. Sega Enterprises Ltd. v. Accolade, Inc. dealt with rival game maker Accolade’s use of a decompiler to read the Sega software source code. With the code, Accolade could create new software that circumvented the lock and ran on Sega machines. An appeals court ultimately ruled that if someone lacks access to the unprotected elements of an original work and has a “legitimate reason” for gaining access to those elements, disassembly of a copyrighted work is considered to be a fair use under section 107 of the Copyright Act. The unprotected element in this case was the code necessary to enable software to interoperate with the Sega equipment. The court reasoned that to refuse someone the opportunity to create an interoperable product would allow existing manufacturers to monopolize the market, making it impossible for others to compete.

12. How might a corporation use reverse engineering to convert to a new database management system? How might it use reverse engineering to uncover the trade secrets behind a competitor’s software?
Reverse engineering is the process of taking something apart in order to understand it, build a copy of it, or improve it. Using reverse engineering, the corporation can use the code of the current database programming language to recover the design of the information system application. Next, code-generation tools can be used to take the design and produce code in the new database programming language. This reverse-engineering and code-generating process greatly reduces the time and cost needed to migrate the organization’s applications to the new database management system.

Decompilers and other reverse-engineering techniques can be used to reveal a competitor’s program code, which can then be used to develop a new program that either duplicates the original or interfaces with the program. Thus, reverse engineering provides a way to gain access to information that another organization may have copyrighted or classified as a trade secret.

13. Why might an organization elect to use open source code instead of propriety software?
Two frequently cited reasons for using open source software are that it provides a better solution to a specific business problem and that it costs less.

14. Compare the key issues in the Sega v. Accolade and Lexmark v. Static Control Components reverse engineering lawsuits.
The key issue in the Sega case was that Accolade’s use of a decompiler to read the Sega software source code was for a legitimate reason. The court ruled that this was fair use since the Sega enabling software was an unprotected element. The court reasoned that to refuse someone the opportunity to create an interoperable product would make it impossible for others to compete. The key issue in the Lexmark case was that although the SCCs Smartek chips included Lexmark’s software, copyright laws should not be used to inhibit interoperability between the products of rival vendors.


What Would You Do?

1. Responses will vary. Note that it is not uncommon for an organization that owns a trademark to sue another organization over the use of that trademark in a Web site or a domain name. The court rulings in such cases are not always consistent and are impossible to judge in advance.

2. Responses will vary. Students may argue that the protection of the company’s intellectual property is crucial to its survival. They may also note that the cost of failing to protect this valuable asset is not only lost revenue, but also the potential loss of future rights.

The product development department should discuss, in its proposal, its strategy for protecting intellectual property and the role the new hardware and software will play.

3. Responses will vary. Note that because organizations can risk losing trade secrets when key employees leave, they often try to prohibit employees from revealing secrets by adding nondisclosure clauses to employment contracts. Thus, departing employees cannot take copies of computer programs or reveal the details of software owned by the firm.

Another option for preserving trade secrets is to have an experienced member of the Human Resources Department conduct an exit interview with each departing employee. A key step in the interview is to review a checklist that deals with confidentiality issues. At the end of the interview, the departing employee is asked to sign an acknowledgment of responsibility not to divulge any trade secrets.

Employers can also use noncompete agreements to protect intellectual property from being used by competitors when key employees leave. A noncompete agreement prohibits an employee from working for any competitors for a period of time, often one to two years. When courts are asked to settle disputes over noncompete agreements, they must weigh several factors.

4. The laws in Antigua are substantially different from those in the U.S. (most of the online gambling websites are located there). It sounds like you are being asked to reverse engineer your competitor’s software in order to steal trade secrets and you are being relocated to Antigua to avoid possible copyright and/or patent infringement. You should ask specific questions about what is expected of you, including whether you will be asked to reverse engineer your competitor’s code, violate patents, copyrights, and steal trade secrets. If the answer to any of the questions is yes or you feel that you are being misled in any way, you should not consider taking the position.

5. Your roommate has provided you with two very tempting but unethical options. The first option, where he will write the paper for you, may seem like a good solution, but since you would be taking someone else’s words and passing them off as your own you are still committing plagiarism. The second option, purchasing a paper from an online “paper mill” is also plagiarism and you will likely be caught since most schools use plagiarism detection systems. Your only option is to sit down, map out your remaining time and decide how much time to devote to studying for each course and how much time to devote to writing the paper, and then get to work. You still have five days and by effectively utilizing your time you might just be surprised how much you can accomplish. Perhaps you can learn from this experience not to wait until the last minute to start on your English papers.

6. You could schedule a private meeting with your manager to discuss the fact that you are feeling pressured by coworkers to reveal information about the marketing and product development plans of your ex-employer. Explain that you signed a nondisclosure agreement and are unable to provide trade secrets. Point out that if any information is revealed, that you, as well as your current employer may face legal action. Note that this may be the opportune time for your manager to educate the sales department about nondisclosure agreements and the ramifications of violating them.

7. Competitive intelligence is defined as the gathering of legally obtainable information that will help a company gain an advantage over its rivals. The following actions can be taken to ensure that the members of my department do not violate the law or become involved in industrial espionage:

• You could form a small group to develop a mission statement for the competitive intelligence organization (CIO). This statement would include the competitive intelligence organization’s as well as our own company’s goals, objectives, and code of ethics. The CIO’s code of ethics would be more detailed and specific to the department than the corporate code of ethics. The doctrine would then be reviewed by the legal department..

• You could provide training for all competitive intelligence employees. They would need to understand the above doctrine and also the corporation’s policies and code of ethics. This training would involve a series of sessions with testing after each session. All CIO members would have to be certified within 6 months from the date of joining the department. These training sessions would also cover the current laws in place concerning industrial espionage, trade secrets, etc.

• There would be follow up sessions on a regular basis to make sure all CIO operators are following the code of ethics and obtaining all information openly and honestly. The methods of information gathering would be reviewed.

• All third parties used for competitive intelligence activities would be carefully screened by a standard evaluation process. They would need to have department approval and be willing to follow the CIO code of ethics. There would be frequent monitoring to review methods and tactics for conformance to the code.

8. Although negotiating a cross-licensing agreement with the competitor would be of great benefit, smaller companies are usually unsuccessful in enforcing their patents with large companies. Also, large companies have little interest in cross-licensing with smaller firms. Therefore, you could choose to threaten a lawsuit but try to negotiate for an out-of-court settlement.





Case 1: Google Book Search Library Project
1. Answers will vary. Students might argue that it would have taken much longer to use another approach, such as having publishers ‘opt in’. Other students might argue that Google should have gotten permission before scanning copyrighted material, believing that this oversteps the boundaries of fair use.

2. Responses will vary. Students will likely favor anything that help them in their studies and if this becomes a tool that they can use to find and purchase books relevant to their studies, most will probably be in favor of the project. Google intends to provide free, full-text, online viewing of millions of out-of-print books at designated computers in U.S. public and university libraries. It should be noted that quite a few university libraries are partners in the project.

3. Answers will vary. There is some concern that Google will have a monopoly on the only comprehensive collection of out-of-print books and could potentially charge whatever they wished for these books. Microsoft is concerned that Google will have an unfair advantage in online advertising having a massive, searchable library of books associated with its search engine. Additionally, The American Society of Journalists and Authors is concerned that large publishers, several of whom side with Google, will gain too much control over prices of books if the Project becomes the dominant outlet for the purchase of books.

Case 2: Applied Materials Indicted for Industrial Espionage
1. Responses will vary. Some may argue that the provision of people resources and money to defend the employees may lend support to the idea that Applied Materials was complicit in the act.

2. Responses will vary. It does, however, seem highly unlikely that the group was able to operate without the cooperation of senior management.

3. Responses will vary. The company should consider educating its employees about the importance of maintaining trade secrets and the legal ramifications if they do not.

Case 3: Intellectual Property and the War Over Software Maintenance
1. Oracle claims that TomorrowNow illegally downloaded copyrighted material containing software updates, patches, bug fixes, and instructions for PeopleSoft and JD Edwards products. Oracle also claims they used “non-production” copies of PeopleSoft software to develop support solutions.

2. SAP is the parent company, a major competitor, and has more resources (money). Oracle also believes that SAP was aware of the improprieties when it purchased TomorrowNow.

3. Answers will vary. Current research shows that third-party maintenance provider Rimini Street is doing quite well as are several others without any outside assistance.



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