a glob of nerdishness

August 29, 2009

Indie IP

written by natevw @ 2:48 pm

This post, subtitled “Intellectual Property for the Independent Developer”, was originally put together as a Blitz talk submission for this year’s C4 conference. I was reminded by the latest Core Intuition podcast to share it here.


As creators, we have this sense of ownership over our work. This concept has many legal “implementations” under a framework known as Intellectual Property. Intellectual property (IP) is a blanket term for the idea that it’s not just wrong to steal Suzie’s crayons, but it’s also wrong to rip off her work as well.

Intellectual Property rights help one monetize their mind. Unlike physical property, violating someone’s IP rights doesn’t rob them of the thing itself, but it does deprive them of control over how — and for how much! — their work is used.


I should make one thing clear: I am NOT a lawyer, and this is not legal advice. There’s a lot of depth and detail in this realm, these concepts are an architecture whose requirements keep shifting, and my advice here may not be in your best interest.

This post is a high-level overview of a few specific IP rights. I’m defining them based on my understanding of US law. Most other countries have similar protections, but they differ in the details.

Copyright: Control your creations

Copyright is for creative work, like programs and icons and documentation. These things are way easier to copy than they are to make, so the law says that creators have the right to decide — to control — what copies are made and under what terms.

It’s actually the owner who controls the work. Ownership can be transfered (talk with your graphic designers about it) and if you’re employed or doing contract work you’ll want to make sure it’s clear who owns the things you create.

Most of the time as an independent developer, you’ll want to share copies of your work, so long as you profit somehow. When you “license” your software or source code, you get to set the terms for that to happen the way you want. For example, if your binary ends up on one of those shady “pay $4 to download” sites you may be able to use your copyright and/or trademark rights to have it taken down.

Trademarks: Control your brand.

Trademark is for your “brand elements”: company and product names, identifying logos and slogans, even elements of industrial design (like the iPod’s shape). You are given some control over them to prevent misuse.

You automatically get trademark protection as soon as you start using a brand; you can draw attention to that with the little ™ symbol. Copyright is similar; it’s an automatic right upon publishing. But with both, if you can afford to register, you get better weapons in court (at least in the US, where IP law is biased towards larger interests).

Trademarks don’t give you complete control. People can still criticize your brand using your own trademarks, for example. Copyright has some fair use exceptions, too. Remember, there’s a lot of depth to IP law. All of this is just legal control: you still may need to pay lawyers and go to court to claim (defend, really!) your rights.

Patents: Control your HOWTO (for a while)

Speaking of paying lawyers! A patent is basically a HOWTO with benefits — you reveal and explain a new mechanism or method, in exchange for about twenty years of control over your specific invention. Patents are the nuclear weapons of the software business…they’re expensive to file and even more costly to deploy in court. It’s typically only large corporations who can afford to parade their patent portfolios, though little rogue nations do like to ride the bombs down now and then.

Trade secrets: Control your knowledge (forever…maybe)

Trade secrets are probably a better solution than patents for most indies. You can control this form of IP as long as you can keep it a secret. Most legal systems provide penalties against leaks, but once the damage is done, you have lost control.

One way to encourage secrecy is through the use of Non-Disclosure Agreements. Some *cough* companies do NDAs in a big way as a sort of trade secret bunker around their patents, but indies can make use of the same legal protections of these contracts to control things like beta releases and details about under-the-hood secret sauce.


In some ways, Intellectual Property is the bedrock of the software business, and pressing it to full advantage might yield good financial returns. But my unofficial, could be wrong, might be bad, advice is to take it easy. Know your rights and don’t violate others’ rights, but don’t forget what keeps you in business either. One great part of the indie ethos is the desire not to control the world, but to contribute to it.

“Create more value than you capture” is a phrase Tim O’Reilly often uses, and I think it’s an apropos motto when it comes to Intellectual Property. Here are a few ways that you can use your IP rights to contribute, rather than control. You aren’t in the indie Mac community long before you see these practices in action:

  • Respect your customers
  • Spread knowledge
  • Share source
  • Boost others’ brands

Al fin

I think it’s important that developers have an awareness of their rights and their responsibilities regarding Intellectual Property, so I hope this was a helpful overview. If you’re looking for further reading, I’ve got a growing list of bookmarks tagged with iplaw and related terms that may be of interest.

September 8, 2007

Picture Lobbyists Association of America

written by natevw @ 5:42 pm

About two weeks ago, James Duncan Davidson’s comment traffic shot up after he politely complained about online photo attribution. Although he lamented about opening a “can of worms”, what I saw publicly was a civil discussion about image netiquette.

Really, photos have got it pretty good these days. We “manage rights” by the good old-fashioned techniques of asking, encouraging, trusting and forgiving. When necessary one can complain, informally or formally. I haven’t heard of any photography coalitions sobbing before Congress about the Internet-induced collapse of all that Is Right and Proper. Google Images lives on, for better or for worse, with no federal agents seizing servers. Nobody’s putting pressure on Apple to make iPhoto automatically delete “pirated” images — my wife can even drag a picture from my shared library into hers when she wants.

The biggest threat to a photographer’s livelihood is competition, not piracy. But unlike certain other industries, this is not a new phenomenon. A new market condition like crowdsourcing (further reading here, here and here) isn’t the end of the world for the photographic trade, just like the Brownie camera wasn’t the end of anything much. I’m glad to be a developing participant in a guild that reacts to change with creative solutions and resolute improvement.

April 7, 2007

License options for those without legal departments

written by natevw @ 2:40 pm

Jeff Atwood has put together a handy chart of software licenses on his great blog. It lists only a few of all the software licenses known to man, but that’s just the point. What makes the chart especially handy is his choice of columns. Succinct “Source” and “License” headings help narrow a choice down, and the “Clauses” column suggests the amount of legalese you’re in for upon further investigation. It’s almost as helpful as the Creative Commons license builder(1), but for software developers.

For helping programmers to share their own code, the three Microsoft licenses (especially the two which have Open Source Initiative-approved cousins) seem out of place. All the same, I present for completeness a similar summary of the Apple Public Source License, version 2:

  • Source: Open
  • License: Permissive / Weak copyleft
  • Clauses: 13 with abundant sub-clauses
  • Gist: allows proprietary use of unmodified code, with patent and source code caveats on modifications.

Obviously not a great choice for new code(2). It’s a license Apple uses to voluntarily release the kernel code for OS X, and even they don’t use it for all their available sources.

  1. …though if I ever come across (or make) a page that puts the extra CC polish on the process, I’ll let you know.
  2. The wildebeest himself approves your use and contributions to APSL-licensed software, but doesn’t “recommend you…release new software using this license”.