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Electronic Risk Management
APPENDIX: TERMINOLOGIES
Firewall:$¿UHZDOOLVDEDUULHUWKDWHQIRUFHVDERXQGDU\EHWZHHQWZRRUPRUHFRPSXWHUQHWZRUNV,W LVVLPLODUWRWKHIXQFWLRQRI¿UHZDOOVLQEXLOGLQJFRQVWUXFWLRQ$¿UHZDOOFRQWUROVWUDI¿FEHWZHHQGLIIHU-ent zones of trust. Two extreme zones of trust include the Internet (a zone with no trust) and an internal QHWZRUND]RQHZLWKKLJKWUXVW6HWWLQJXS¿UHZDOOVUHTXLUHVXQGHUVWDQGLQJRIQHWZRUNSURWRFROVDQG RIFRPSXWHUVHFXULW\6PDOOPLVWDNHVFDQUHQGHUD¿UHZDOOZRUWKOHVVDVDVHFXULW\WRRO
Hackers: In computer security, a hacker is a person able to exploit a system or gain unauthorized access through skill and tactics. This usually refers to a black-hat hacker. Two types of distinguished hackers exist. A Guru is one with a very broad degree of expertise, a Wizard is an expert in a very QDUURZ¿HOG
Malware: Malware is a software program that runs automatically against the interests of the per-VRQUXQQLQJLW0DOZDUHLVQRUPDOO\FODVVL¿HGEDVHGRQKRZLWLVH[HFXWHGKRZLWVSUHDGVDQGZKDW it does.
Phishing:3KLVKLQJDOVRNQRZQDVFDUGLQJDQGVSRR¿QJLVDQDWWHPSWWRIUDXGXOHQWO\DFTXLUHVHQVL-tive information, such as passwords and credit card details, by masquerading as a trustworthy person RUEXVLQHVVLQDQDSSDUHQWO\RI¿FLDOHOHFWURQLFFRPPXQLFDWLRQVXFKDVDQHPDLO7KHWHUPSKLVKLQJ DOOXGHVWRWR³¿VKLQJ´IRUXVHUV¶¿QDQFLDOLQIRUPDWLRQDQGSDVVZRUGV
Spam: Spam refers to unsolicited messages in bulk. It can refer to any commercially oriented, un-solicited bulk mailing perceived as being excessive and undesired. Most come in e-mail as a form of commercial advertising.
6SRR¿QJ: See phishing.
Spyware: Spyware is a malicious software intended to intercept or take control of a computer’s operation without the user’s knowledge or consent. It typically subverts the computer’s operation for WKHEHQH¿WRIDWKLUGSDUW
Virus: A virus is a self-replicating program that spreads by inserting copies of itself into other executable code or documents. A computer virus behaves in a way similar to a biological virus. The LQVHUWLRQRIWKHYLUXVLQWRDSURJUDPLVFDOOHGDQLQIHFWLRQDQGWKHLQIHFWHG¿OHRUH[HFXWDEOHFRGHWKDW LVQRWSDUWRID¿OHLVFDOOHGDKRVW$YLUXVLVDPDOZDUH
Worm: A computer worm is a self-replicating computer program. A virus needs to attach itself to, and becomes part of, another executable program. A worm is self-contained. It does not need to be part of another program to propagate itself.
This work was previously published in E-Business Process Management: Technologies and Solutions, edited byJ. Sounderpan-dan, and T. Sinha, pp. 292-311, copyright 2007 by IGI Publishing (an imprint of IGI Global).
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Chapter 7.18
E-Business Process Management and Intellectual Property: Issues and Implications
Kathleen Mykytyn Southern Illinois University, USA
Peter P. Mykytyn
Southern Illinois University at Carbondale, USA
ABSTRACT
The emergence of e-business as a viable business model is unquestioned and global in its involve-ment and impact. Further, the value that intel-lectual property (IP) in the form of trademarks, copyrights, and patents plays in that medium of doing business impacts businesses, information technology (IT) professionals, academics re-sponsible for IT coursework and programs, and, of course, the legal community. This chapter reviews these IP types with particular emphasis on their relationship and impact on e-business. Relevant legal cases are cited and discussed to provide additional foundation to the e-business community. The chapter also provides appropriate recommendations for e-business in light of these ,3LVVXHVDQGLGHQWL¿HVVRPHSRVVLEOHIXWXUH trends and research issues.
E-BUSINESS PROCESS MANAGEMENT AND INTELLECTUAL PROPERTY: ISSUES AND IMPLICATIONS
The advent of the Information Age has brought about a different way of thinking about how in-formation should be used in both the public and private domain. It has also challenged businesses to take advantage of information technology (IT) in conducting everyday tasks. The introduction of the Internet into the business model, that is, electronic commerce, has not only provided new RSSRUWXQLWLHVDQGHI¿FLHQFLHVIRU¿UPVEXWKDV DOVRSRVHGWKUHDWVWRWKHP,QSDUWLFXODU¿UPV are confronting numerous issues that today are impacting their intellectual property (IP) assets. All of this is truly a new, virtual frontier. However, computers and the Internet are presenting new and challenging legal questions that may take
Copyright © 2009, IGI Global, distributing in print or electronic forms without written permission of IGI Global is prohibited.
E-Business Process Management and Intellectual Property
many years to become well-settled points of law. One area of the law that has been dramatically DIIHFWHGE\FRPSXWHUWHFKQRORJ\LVLQWKH¿HOG of IP, for example, trademarks, copyrights, and patents. Referring to intellectual property, Ghosh (2002, pp. 454-455) states that:
7KH¿HOGLVKRWVRWRVSHDNDQGRIWHQHFOLSVHVRWKHU more compelling issues in the media and legal fora. Intellectual property issues are ubiquitous SUHFLVHO\EHFDXVHLQWHOOHFWXDOSURSHUW\LVWKH¿QDO frontier. Market economies expand and thrive by conquest, and our world has expanded as much as it can geographically. Real property, or land-based systems, offer very few prospects for further exploitation. Personal property similarly offers few remaining challenges for entrepreneurial enterprise….. It is not hard to fathom the impor-tance of intellectual property in commodifying the intangible inputs and outputs of an economy based on the selling of services, whether medical, OHJDO¿QDQFLDORUHQWHUWDLQPHQW
Caught in the middle of these emerging e-business issues are the IT professionals, for ex-ample, Webmasters, who create and/or maintain a company’s Web site and e-commerce systems. They may feel that their technological expertise in developing and maintaining Web sites is their only responsibility, that is, any social, political, or legal issues are not their concern. Consequently, Webmasters not only have no noticeable knowl-edge regarding the applicable IP laws, they also have a large dose of disdain for them (Kamarck, 1999). They believe that their job is to drive users WRDFRUSRUDWH:HEVLWHHI¿FLHQWO\DQGHIIHFWLYHO\ and without any knowledge of, or belief in, IP laws, they can be creative and successful in their DELOLWLHVWRGRVR&RQVHTXHQWO\¿UPVPD\KDYH manipulated the technical aspects of Web-site development without regard for the IP rights of others (Kamarck, 1999).
Underscoring the important role played by IT professionals today is the nature and amount of e-business being conducted today. The U.S. De-partment of Commerce’s Economics and Statistics Administration publishes an annual report about the digital economy. Its 2003 report, the latest available, indicates that retail e-business activity has shown a 28% increase over the second quarter of 2002, but that the B2B e-business arena has not shown as much improvement and has fallen short of expectations (Digital Economy, 2003). At the same time, as shown in Figure 1, the rise in e-commerce-related lawsuits from 1995 to 2005, comprising trademark, patent, and copyright litigation, attests to the apparent lack of knowl-HGJHRI,3ODZE\HLWKHU¿UPVRU:HEPDVWHUV$V shown, the number of Internet-related lawsuits is increasing dramatically, which should be a cause of concern for organizations and information technology (IT) researchers who are investigating various e-commerce issues today.
The overall purpose of this chapter is to pro-vide an awareness of the relationship between e-business and IP for IT professionals and others, including business professionals. In doing so, we hope that many readers may have an increased awareness of the importance of these issues that impact business professionals, IT professionals, and many in the academic community. We will GH¿QHWKHODZGHDOLQJZLWKWKHWKUHHDUHDVRI protection covered in the chapter–trademarks, copyrights, and patents. We will also integrate how these forms of IP relate to e-business. It is important to understand just why these forms of IP are an important area of consideration involving today’s e-commerce. The chapter will conclude with areas of suggested research appropriate for academic researchers, and our assessment of some future trends involving IP and e-business. For further support, the chapter will cite relevant court cases involving IP and e-business.
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E-Business Process Management and Intellectual Property
Figure 1. E-commerce-related IP lawsuits, 1994-2004
igation
350
300
250
200 150
100
50 0
-50 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004
Copyright
Patent
Trademark
Linear (Trademark)
Linear (Patent)
Linear (Copyright)
Years
Note: All data was obtained using LexisNexis. A search was conducted for trademark, patent, and copyright court cases using each word,
for example, “copyright,” as a keyword, followed by the keyword “Internet.” We have added a trendline for each type of lawsuit extending
beyond 2004 to suggest that the number of such lawsuits is not declining.
INTELLECTUAL PROPERTY LAW: TRADEMARKS, COPYRIGHTS, AND PATENTS
Intellectual property is a broad area of the law related to protecting ideas, concepts, and prod-ucts. For purposes of this chapter, the relevant topics addressed will be limited to trademarks, copyrights, and patents.
Trademarks
Today, trademarks are used by businesses to dis-tinguish themselves from their competition. They are also used to protect commercial goodwill, DQGFRXOGEHUHJDUGHGDVDQLQWDQJLEOHEHQH¿W ,QWDQJLEOHEHQH¿WVPD\KDYHGLUHFWRUJDQL]DWLRQDO EHQH¿WVEXWFDQQRWEHHDVLO\PHDVXUHGLQGROODUV RUZLWKFHUWDLQW\7KHUHSXWDWLRQRID¿UPLVWRR valuable to risk misunderstanding what trade-marks are and how to use them to preserve legal rights in them. The importance of trademarks to current business practice is undisputed. Perhaps )LHOGVDLGLWEHVWZKHQKHVWDWHGWKDW³$VVXPLQJ that its owners are not the type to write their name in chalk on the company truck, no busi-
ness is small enough that it can afford to ignore trademarks” (Field, 2000).
Trademark rights exist at common law and are recognized and enforced by most states. The U.S. Congress recognized these rights and extended them by way of federal statute; this source of trademark rights has become predominant in the U.S. (15 U.S.C. §§1051, 1988). This statute, commonly known as the Lanham Act, provides a national registry for trademarks that carries withit national protection for registered marks (15 U.S.C. §§1114, 1988). Once registered, the trademark is valid for 10 years and may be renewed for like periods as long as the mark is in constant use. Failure to use the mark can result in the loss of the rights in the mark.
The fundamental purpose for the trademark VWDWXWHLVWRSURWHFWWKHSXEOLFDJDLQVWPLVLGHQWL¿-cation of a product or service so that thereis little likelihoodof confusion as to the manufacturer of a product. The statute also protects a trademark owner, who generally has made a substantial investment in the promotion of the product or service being placed in the marketplace, from its misappropriation by competitors. Under this statute, trademark holders can sue for trademark
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infringement if they can show that they possess a protectable mark. Protectability is generally a function of the strength of a mark and the likeli-hood of confusion in the marketplace.
A trademark can be viewed as any word, phrase, symbol, design, sound, smell, color, or product structure that is adopted and used by a business to identify and distinguish its products and/or services (Guillot, 2000). Trademarks can be considered synonymous to brand names, and are determined to be important intellectual prop-erties that distinguish one company’s products or services from another’s. In addition to trademarks, there are service marks; technically, a trademark LVDV\PEROXVHGWRLGHQWLI\DVSHFL¿FVRXUFHRI goods, while a service mark is used to identify a VHUYLFH6XFK³PDUNV´DUHGHQRWHGDVDQ\V\PERO that can be legally used by only one organiza-tion or a group of legally related organizations. :KDWHYHUW\SHVRI³PDUNV´DUHXVHGWKH\HQ-able consumers to look for, or avoid, products or services that are marketed under those names or symbols (Field, 2000).
When consumers perceive a name, symbol, and so forth, to be associated with a product or service as indicative of its source, then that name, symbol, and so forth, is entitled to legal protec-tion as a trademark. It would not serve consumer interests if businesses could duplicate a product or service but not identify it in a manner that the consumer would recognize. Field (2000) notes that consumers may even create a trademark or create a second trademark using a nickname; ³&RNH´ZDVDFFRUGHGOHJDOSURWHFWLRQEHIRUHWKH company used it.
mark law. If a business was local, there was little likelihood of customer confusion with other local businesses and, thus, little concern over trademark FRQÀLFWV5HJDUGLQJHFRPPHUFHKRZHYHUWKHUH is no such thing as a local business, and the names of businesses, products, and/or services must be JLYHQDWWHQWLRQWRHQVXUHWKDWOHJDOEHQH¿WVDUH obtained and legal threats are avoided. When a company invests heavily in consumer goodwill, it needs to understand how to protect its investment. More succinctly, a company wishing to ensure the viability of its trademarks must ensure that its trademarks are not infringed upon by others.
One of the more important areas dealing with e-business and trademark infringement pertains to domain names. When doing business on the Internet, trademark law determines when the use of a domain name infringes someone else’s trademark. In the recent past, trademark owners who desired to use their marks as domain names found that the name had already been taken. Fur-ther, trademark owners found that unauthorized parties were using their marks as domain names, many times in a deliberate attempt to free ride on the goodwill of the mark’s owner (Dueker, 1996). Others have obtained domain names for the purpose of selling them back to a trademark owner. With the passing of the Anticybersquat-ting Consumer Protection Act (ACPA) in 1999, a domain name that is the same, or confusingly similar to an existing trademark anywhere in the U.S., cannot be used for the purpose of selling the name back to the mark’s owner (ACPA, 2000). Two fundamental rules of trademark law and domain names are:
Trademark Applicability to E-Business
1. Names, logos, or domain names cannot be used if they can confuse consumers as to the source of goods or services:
Until the Internet was developed, only companies that conducted business on a national or interna-tional level needed to be concerned about trade-
,IDGRPDLQQDPHLVLQFRQÀLFWZLWK an existing mark and is likely to cause customer confusion, a court could force the infringer to relinquish the name. Further, if the infringement is
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