You've probably heard the expression, "A picture is worth a thousand words." The old saying hits on the fact that visual expression can be described in so many different ways, while an image can capture a complicated topic in a single visual that many may find more effective. In such works, the communication itself becomes the focal point while the idea or data itself is simply the object.
When ideas can be spread this virally, one of the biggest concerns at most startups becomes how to protect proprietary aspects of their business. In a technology company, the subject matter is usually software, computer hardware, or some interplay between the two. Other businesses may have found a secret in some kind of novel service offering or presentation method. In every case, the business would want the broadest possible amount of protection from competition, so the team may seek to file a patent on the entirety of the product or the delivery method.
But what is a company to do when the product isn't entirely novel or non-obvious, and a patent or copyright is difficult to obtain? How should a business focus its time becoming defensible when legal protection is not immediately on its side? Does it make sense to get a patent on hardware or software at all, or should the team be focused entirely on product?
"A picture is worth a thousand words" is also a great introduction to concept of "idea and expression" in copyright law. Understanding the Idea/Expression principle will help your team seek protection of novel uses of software and hardware, polishing the product and user experience, or thinking about how to lock our competition from stealing your thunder -- for now.
Stealing Yoga From the Stars
Many great products begin with an idea. Yoga is no different. One pioneer in particular, Bikram Choudhury, so-called "yoga provider to the stars”, developed 26 positions (asana) and two breathing exercises which he offered through his studio. Choudhury eventually published a book entitled Bikram’s Beginning Yoga Classes describing the 26 asanas. The rest, they say, is history: Bikram yoga is now considered a prominent method for practicing Yoga and can be found in countless exercise studios around the world.
As you might imagine, Bikram wasn’t singlehandedly responsible for bringing yoga to all of these studios. Rather it was the enthusiastic followers of Bikram’s methodology: former students of Bikram’s classes and fans of the Beginning Yoga Classes book took the concepts viral.
You might also imagine that Bikram wasn't particularly pleased about the fact that there were hundreds of people practicing a method that he created and described through his own teachings and book. Having gone through the trouble of getting a copyright on his book, he sought vengeance against those who were practicing his method and reaping the benefits by filing a copyright suit in 2011 against two former students of Bikram who had opened their own studio. Just as Bikram counseled in Beginning Yoga Classes, both students taught a form of “hot yoga” consisting of 26 poses and two breathing exercises, completed in 90 minutes in a room heated to 105 degrees. Much to Bikram’s disappointment, however, the court dismissed his copyright infringement claim and an appeals court later upheld the ruling, concluding that Bikram’s copyright only applied to the words and pictures in the book that described the series of 26 exercises. As ideas, the exercise sequences themselves were not protected.
So what happened?
Right about now, you might be wondering about the disconnect between Bikram’s book and the widespread practice of his methods without due compensation. After all, if a book is a copyrightable work and a copyright can be enforced against people that are making copies of the book and selling them without paying a royalty, Bikram should be entitled to a payment every time the method described in his book is practiced by someone else.
The answer lies in the idea/expression dichotomy, or the doctrine that ideas must be separated from how they are written or illustrated in a work of authorship. In other words, it’s the “how” that is protected (the pictures and phrases of his book) and not the “what” (the poses themselves). In this case, the “how” refers to the content a vessel for the ideas and the “what” refers to the idea expressed in the content.
This dichotomy is meant to strike a balance between offering protection for truly creative contributions to a work (the expression) and the ability of others to write about the same topic and further contribute to society (excluding the idea from protection). Ideas, to the extent they are protectable at all as a method, composition of materials, or a machine itself, are within the purview of patent protection, not copyright protection. So, for example, a book about economics is protectable under copyright but the copyright does not extend to the supply/demand curve concept.
Good Ideas Just Aren’t Enough - In Software or Yoga
No one can deny the success of the Bikram’s method for practicing yoga, but the law does not reward success just for the sake of it. Works of authorship no matter their form (whether as a book, video, or computer software) must consist of original expression.
In situations like this, the development team really has to parse the product or service they are offering and determine what can actually be protected -- and why it should be protected at all.
Take an app that helps customers track down good restaurants using a series of inputs like the user’s current location, places where their friends were previously, and places currently offering discounts. Taken by itself, there may be nothing unique about the way the app works compared with previous software apps which collectively describe the same process. This rules out patent protection because the idea is not novel or non-obvious. The source code that is contained in the software is potentially protectable by a copyright, but the copyright will only extend to the source code itself, not the broader idea of an app that allows users to find points of interest based on various inputs. This leaves open the possibility that a competitor could simply reverse engineer the program using their own source code, without impugning the copyright you hold to your source code. Of course, the design of the user interface might be protected by a design patent, trademark (as a source identifier of the company that developed the software), or a copyright. Even the force of these forms of protection, however, may be blunted by the ability of a company to design around the user interface.
So what should our team do?
While the result here -- that is, little to no protection is available -- may be discouraging, it can help the developers think about adding improvements to the software that may create the defensive moat against imitation.
For example, perhaps what the developers are really seeking is protection of the processes performed by the software on the back-end, where data is compiled in real-time from users of the app and automatically updated in a database that is queried by all users of the app. Here, knowing that copyright protection doesn’t extend to ideas within the software, the focus can be shifted to how the software is delivered. If kept strictly on the back-end, the delivery component could be protected as a trade secret. This is particularly beneficial in the case of computer software because a trade secret doesn’t require a company to formally apply for any kind of protection, thereby avoiding having to disclose components of the software. Copyright could be used to protect the user interface on the front-end (to prevent substantially similar designs by competitors) to round out the protection that the company gets for different aspects of its software.
Seeing the Forest From The Trees
As the Bikram yoga case demonstrates, when developing a proprietary product, it is sometimes easy for a company to get ambitious on the amount of protection it thinks it can get under a particular type of intellectual property right. Simply propounding on an idea or principle and publishing a book on it may not yield the amount of protection that the creator assumes.
Instead, a company should focus on the essence of the product and what makes the product/experience unique. If the product/service is simply improving on an idea that has already been executed, the true object to be protected might be the experience that a customer gets when they purchase your product or service. Experience cannot be protected by copyright (if the experience is not part of expression), but it can be protected through a trademark. Conversely, a manual that provides instructions on how to teach a course (with accompanying materials such as worksheets and tests, which have been painstakingly compiled) may not be protected by a patent or trademark, but a copyright would bring a great deal of protection.
Stepping back and understanding that copyrights cannot protect ideas will help a business plan out its product rollout more effectively and with significantly more foresight. Such an approach maximizes the profit that a company can receive without dealing with competitors that threaten to cut-in on the business model and product/service mix that a company is offering to its customers.