LEXR — News
by Kurt Krautheim

Intellectual Property - Protect what's yours

Freeloaders - Lenny the Leech

Freeloaders are the worst. When I was a kid, there was a freeloader in my computer class who liked to steal my work and turn it in as his own. He’d take a floppy disk, save my file to it, transfer it back to his computer, change the name on the document, print it out, and submit it to the teacher. 

For the benefit of younger generations, I’ll explain exactly how this worked. Middle school computer classes in the early 90’s were basically typing lessons which consisted of students copying passages from a book to a WordPerfect file. The teacher would then grade printouts using an overhead projector, placing an error-free master copy beneath the student’s version to spot mistakes in formatting, punctuation, grammar, and spelling.

A key vulnerability to this approach (and one that was routinely exploited by individuals of questionable moral character) was that the only way the teacher could detect cheating, would be to crosscheck every single printout for identical mistakes—something we knew she never did.     

At some point—probably because I sensed an imbalance in the universe that needed to be corrected—I left a little surprise for the freeloader. Before he copied my file, I secretly inserted an extremely inappropriate phrase into the document which I later omitted from my own submission. Our teacher was not impressed by the anomaly. An inquiry was held, detentions were given, and the freeloader, who was twice my size, socked me in the stomach for what I had done.

But I didn’t care; the imbalance in the universe was put right.

A short history of anti-piracy measures

As it turns out, even though I wasn’t protecting a creative work, my seventh-grade counterpart was onto something: History is full of freeloaders—and hilarious ways of exposing them.

Take the strange case of Agloe, New York, a phony town invented by mapmakers in 1930 to expose copycats. In those days, cartographers would insert imaginary towns into their maps to reveal which competitors were stealing their work. Unsuspecting plagiarists would then publish maps containing the same imaginary location. Agloe eventually ensnared the likes of the famous mapmaker Rand McNally—allegedly.

For more on that, see https://www.npr.org/sections/krulwich/2014/03/18/290236647/an-imaginary-town-becomes-real-then-not-true-story

Delve a bit deeper, and you see that these sorts of analogue anti-piracy measures were everywhere. Phonebook companies printed fake telephone numbers. Dictionaries contrived imaginary words. See https://www.newyorker.com/magazine/2005/08/29/not-a-word

Visual Artists even got in on the action. Case in point: Gilbert Stuart’s well-known portrait of George Washington (the “Lansdowne Portrait”) which now hangs in the Smithsonian National Portrait Gallery in D.C.

When asked by the U.S. government to make copies of the painting, Stuart happily accepted, but he also inserted a little something special to distinguish the two copies from the original—a deliberate spelling error on the spine of one of the books in the painting, which, upon close inspection says, "CONSTITUTION AND LAWS OF THE UNITED SATES".  Stuart wasn’t exactly your classic freeloader, but he certainly recognized the principle that copies of a rare original threaten to diminish the original’s value. https://www.vox.com/2015/8/28/9220059/copyright-traps

Fast forward to the digital age.  Not much has changed—just take a look at video games. Pirated copies of the PC version of Batman: Arkham Asylum contain deliberate glitches, inserted by developers to punish freeloaders. Cracked copies of the game feature a physically-challenged Batman, who, instead of gliding through the air in typical-Batman fashion, flaps his arms and crashes to the ground like an injured bird. The glitch caused some pretty awkward exchanges in online forums, where pirates unwittingly outed themselves. To give you an idea, the Eidos forum for the game contains the following thread:


  • I've got a problem when it's time to use Batman's glide in the game. When I hold , like it's said to jump from one platform to another, Batman tries to open his wings again and again instead of gliding. So he fels down in a poisoning gas. If somebody could tel me, what should I do there.

Response from administrator:

  • The problem you have encountered is a hook in the copy protection, to catch out people who try and download cracked versions of the game for free. It's not a bug in the game's code, it's a bug in your moral code.


IP Protection - Getting to the point

There are a few points to this rant. The first, is just, wow—who knew such creativity could result from the simple act of exposing freeloaders? The second is that, while fictitious entrees and similar anti-piracy techniques are entertaining and effective in exposing plagiarists and cheats, they have limited value in proving copyright infringement or providing any other meaningful recourse besides good old-fashioned humiliation.

So, whether you’re doing it to prove a point like my seventh-grade counterpart or you actually want to protect your intellectual property, you should take a look at the wider range of options available for protecting what’s yours. Without getting too much into the nitty gritty, here are a few tools for freeloader-proofing your business or product:

  • To the extent you have a product that is patentable, get one; patents (even provisional ones) are powerful deterrents to potential copycats.
  • Trademarks. Trademarks not only distinguish your business, services, and products, from competitors, they also provide an added layer of protection from freeloaders by demonstrating when and by whom an idea was conceived. 
  • Copyrights protect literary and artistic works with individual character such as literature, music, photographs, sculptures, films or plays. Software is also protected by Swiss copyright law, under which, computer programs can be protected for 50 years after the death of the author.
  • Design rights protect the appearance of a product—in particular, the visible form of two-dimensional (i.e. fabric design patterns) or three-dimensional (i.e. models such as a piece of furniture) objects.
  • Trade secrets and confidential information are not considered protected intellectual property rights under Swiss law. As a result, businesses must protect this information by way of agreement: 
    • Non-disclosure agreements (aka confidentiality agreements or NDAs). Use them whenever you discuss product details with the outside world. NDAs require one or both parties to keep confidential certain information disclosed in the course of a transaction, allowing use of such information only for the particular purpose for which it is disclosed.

    • Non-competes. If drafted properly, they can help businesses protect confidential information such as trade secrets and client lists—and also prevent unfair competition by former employees.

Given the complexities involved in securing IP protection in the above areas, companies should engage the services of qualified counsel.

Finally, a word of practical business advice: Copycats pose the greatest risk to early-stage businesses. As a result, it’s critical for young companies to build their brand, and do so as quickly as possible. Know your story, broadcast it to the world, be clear who you are and what your business stands for, and know your customers better than the competition. One of the greatest tools against copycats, is being inimitable.

But please, leave the rest to your legal counsel.


1 Title picture reference: "Unites States" I Google Arts via Wikimedia Commons