Monday, March 19, 2007 11:08 AM Igor Tandetnik wrote:
> Matt Murdock <mattdmurdock@...>
> wrote:
> > I'm just curious as to the legal mechanism MS used to
> protect the look
> > and feel, and which parts.
>
> As usual, MS doesn't seem to specify that. The license talks about
> "intellectual property" which is not, as far as I can tell, a notion
> recognized by law. This has become popular lately, not just
> with MS. My
> (completely uneducated) guess would be they filed patents purportedly
> covering the technology, and would also claim copyright on an
> artistic
> concept and visual elements.

There are a few ways that courts currently recognize Intellectual Property
protection. I'm not a lawyer, but I have taken a few
classes and dealt with it as a technology entrepreneur. So, take this with a
grain of salt, especially as I am likely to be too
broad or simplistic here.

The most likely protection they would use would be trademark, copyright, and
patent. These are often jointly described as
Intellectual Property, but are treated under the law differently. Microsoft is
also trying to establish a contractual agreement that
creates further protection.

Trademark only applies if the use confuses users into thinking the product is a
Microsoft product. That's not too hard to
work-around as long as you aren't mimicking office functionality directly.
Trademarks apply to marks on goods or services used in
commerce. It happens automatically upon use, but may be bolstered by labelling
(TM) and registration, which allows (R). It can also
be applied to trade "dress," which is a unique presentation, packaging, or
appearance of a product.

Copyright applies to any expression of an idea, and particularly unique
expressions are definitely protected. It does not however,
apply to utility. That is, the function of the interface is not copyrightable,
only its expression, which I would interpret as its
unique visual characteristics. Copyright applies to all expressive (creative)
works, automatically; it does not require prior
approval by any agency.

Note that in the Apple v Microsoft case regarding the GUI, it was the unique
visual presentation of particular elements that best
survived. In particular, the Macintosh "trashcan" could not be used by MS. I
always that that was funny because Windows' recycle bin
is so much more PC and hip than the pollution inspired trashcan. I don't,
however, know if the decision was one of trade "dress" or
copyright that won that distinction.

Patents apply to inventions that provide unique utility. There could be elements
of the toolbar that are patentable or already
patented. This requires a judgment by the patent office, although such judgments
can be challenged in court. Any issued patents are
public, and recent patent applications are mostly available online too. So, you
might look to see if there are any patents filed.

Contractual protection merely requires the contracting parties to agree to the
limits. Microsoft is using its power and position in
the community to get developers to agree to IP protections beyond Trademark,
Copyright, and Patents. Any firm that agrees to the
license is bound by it, independent of whether or not trademark, copyright, or
patent law applies. Microsoft can easily require
these further limitations by restricting license of other IP unless the stricter
license is adopted. In other words, they explicitly
license IP that is clearly protected under existing law, and you can only
legally use it if you agree to limitations that are much
more restrictive.

Basically, there are a lot of ways they can come after you if they want to. I'd
avoid trying to make money off of duplicating it.
Let others with deeper pockets test that ground.

-j

--
Joe Andrieu
joe@...
+1 (805) 705-8651

"An inconvenience is an adventure wrongly considered. An adventure is only an
inconvenience rightly considered."
--G. K. Chesterton