Intellectual Property in Action

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The mood at Double D is almost giddy. The port contract came through, which helped put a security deposit and first and last month's rent down on an ugly, windowless office outside of town. The network is still being tweaked, but the hardware and software work, and the team gets along as smoothly as ever.

Dana has been project managing the port half-time, drafting and assembling the documents for the pitch build, and trying to make sure the office is run like a real grown-up workplace. She's quite pleased with the fact that everyone has an employment agreementcontaining an NDA, non- compete , and assignment of inventionand a handbook.

She is vaguely aware of a missing component in their grown-up workplace: a system for pro tecting the intellectual property they create. Their HR attorney Robin put a confidentiality policy in the handbook specifying measures like where and when to put confidentiality and copyright notices on work, and now Dana needs to figure out what else the company can do to protect itself.

Double D's office building has electronic keypad access all day, meaning that no one can get in without the access code or an escort. Dusty set up a security system for the FTP site and installed access-restriction software on the network. Dana called an all-hands meeting to explain the company's trade secret protection plan, and why each of the measures was so important. She also emphasized the employee's role in protecting the company by not dis cussing work outside the office and leaving confidential material in the office under lock and key.

Next she turned to the original IP being created for the pitch, which needed to be protected before she started showing it all over the West Coast. Dana researched as much as she could about software protection on the Web so that she could be extra-efficient with their IP attorney Jamie. She e-mailed Jamie a two paragraph description of the projects the company is working on and a list of questions in advance of their phone meeting.

Jamie tells Dana that Double D should mark anything that would be valuable to competitors with a confidential and proprietary legend as well as copyright notices, and that she should put together federal copyright registrations for the pitch document, .AVI files, and prototype (which will protect the source code and any audio-visual elements of the prototype), as well as any music they create. The pitch document and prototype should be registered with the special trade secret registration process, which will preserve the material's confidentiality and trade secret status, and Dana may want to consider trade secret registrations for other assets. As soon as Double D comes up with a name for their game, Jamie continues, it should be trade marked . They should also consider trademarking any other major characters they develop. "Most companies trademark their name and logo." Jamie noted, "If you have a logo, I'm not sure I want to know what it looks like, but consider getting it protected if you haven't already."

Without proprietary technology and/or content, a development company is a code factory. While game development requires creativity and will therefore never become a commodity product, a developer with a unique competitive advantage (such as a great proprietary technology) is more likely to escape the yoke of constantly scrambling for customers of its team's time. Furthermore, creating scalable, reusable, modular technologies enables your company to leverage its proprietary assets to reduce development time of subsequent projects.

Most people working in a technology- intensive industry like game development are sensitive to the business imperative of intellectual property rights to their work product. This chapter will also alert you to other areas of your business that need protection, such as your enterprise name and logo.

Many developers balance the need to protect their investment against what they see as a core ethic of programmingenabling innovation through the sharing of information. There is a significant movement lobbying against software patents, as many are seen as overbroad and unfairly restricting competition. This chapter presents and explains the law of protecting software with trade secrets, copyright, and patents, and leaves it to the reader to determine which is the right choice for his company.

Enforcing intellectual property is usually a joint effort between owners and publishers/ distributors . International registration and enforcement poses unique, unavoidable problems: the game industry, like the film and television industry, relies on worldwide release revenue to support production costs. This chapter will review the laws of different countries and the best way to safeguard your property abroad (including how to figure out if it's worth the cost). Unfortunately, not every country operates with the same protective zeal as the U.S., so we'll review some piracy and gray market precautions .

This chapter is broken into two main sections, "IP 101" and "Protecting Your Assets." There are four main categories of intellectual property:

• Trade secrets. Trade secret law protects confidential business information and processes that create a competitive advantage. Trade secrets can protect assets like program structure, processes, business documents, and contract terms.

The author would like to thank Jeff Carton of Meiselman, Denlea, Packman, and Eberz P.C. ( www.mdpelaw.com ) for his assistance with preparing this chapter.

• Copyrights. Copyrights protect the tangible , fixed expression of an idea. Copyrights protect everything from works of art to software. Most software is protected by copyright, either alone or in conjunction with other protections .

• Trademarks/Service marks. Trademarks protect brands in a range of properties, from a company's name and logo to the name and appearance of characters in its games . While not directly pertinent to code, trademarks are an important category of rights for game developers.

• Patents. Patents are the nuclear weaponry of intellectual property rights: very powerful, expensive to develop, subject to significant regulation, and considered by many to be rather ridiculous and dangerous. Because patents give so many rights, the qualifying bar is very high. Currently, many companies find they can achieve satisfactory protection for their software and technology through copyrights and trade secrets, making patents optional in the game developer's arsenal.

The section "IP 101" will introduce them, review what they are, how to qualify for and obtain the protection, enforcing rights, strengths and weaknesses of each category, and assets that can be protected under a given category.

The section "Protecting Your Assets" will review methods of maintaining the value of your property, including: (i) legends and notices, which alert the world to the protected status of the material; (ii) ways to enforce your rights against infringers; (iii) how to protect your property abroad; and (iv) gaining clear ownership of IP produced by your employees and contractors.

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