Dog Days (3): Patent, Trademark, Copyright

Presumably in response to ongoing discussion here of licit vs. illicit web-publishing practices, with the clear implication that, inadvertently, I might be in violation of IP laws myself, Rick Laughlin of the obscure and often cryptic blog Webionaire.com sent me the following warning:

The example he attached was the passport image in GIF format that’s part of the Photocritic International logo.

I replied as follows:

“Thanks for your cautionary email, which took me aback until I did a bit of research.

“You seem to have confused the existence of patents pertaining to any software that generates files in the GIF format with patents that might apply to individual GIF image files.

“For a period of time in the past, the LZW compression algorithm which is used in making GIF files was indeed covered by patent. This did not prohibit anyone from making, using, or distributing GIF files. It meant that producing and distributing software that could generate GIFs required licensing the algorithm from the patent holders (IBM and Unisys).

“None of the four websites that I publish, including the one that contains my blog Photocritic International (to whose GIF logo your email referred) constitute software. These sites do not generate images. Nor do they employ the formerly patented LZW compression algorithm to make content available to visitors to the sites.

“I say ‘formerly’ because the patents in question expired some years ago. As the GNU open-source website indicates, ‘The Software Freedom Law Center says that after 1 October 2006, there will be no significant patent claims interfering with employment of the GIF format.’ So when you say ‘I assume that you understand the license and fees associated with using this file format,’ you’re clearly ignorant of the fact that no such fees and licenses have ever existed.

“You’ll find a full, clear, non-jargonized explanation of this at the GNU website.

Helpfulness is only really helpful when it’s grounded in knowledge. I have no idea how many people you’ve annoyed, and how much time of others you’ve wasted, with uninformed cautions such as the one you sent me, but please consider doing your homework before sending out advisories. It’ll save you and others time, and keep the egg off your face.”

A substantial, well-researched article on this subject by Michael C. Battilana, “The GIF Controversy: A Software Developer’s Perspective,” spells this out explictily:

“GIF files are not covered by the patent. There is no risk in distributing GIF files or in using the GIF name. According to a CompuServe spokesperson, ‘Recent discussions of GIF taxes and fees are totally without merit. For people who view GIF images, who keep GIF images on servers, or who are creating GIF images for distribution, the recent licensing discussions have no effect on their activities. Only the software employing the LZW algorithm for writing GIF files is ‘at risk.'” (Italics mine.)

Note that this was originally published in 1995, a decade before IBM and Unisys allowed their patents on the algorithm to expire. (Battilana updated it in 2004.) So those patents, even when in place and active, had no effect on either commercial or non-commercial usage of GIF files themselves. They concerned only the creation and distribution of software capable of generating GIF files. So long as the software used to generate a GIF had licensed the necessary algorithm from the patent holders, the output of that software was legally free and clear.

Wikipedia confirms this in its much more recent entry on the subject:

The Graphics Interchange Format (GIF) is a bitmap image format that was introduced by CompuServe in 1987 and has since come into widespread usage on the World Wide Web due to its wide support and portability. . . . GIF images are compressed using the Lempel-Ziv-Welch (LZW) lossless data compression technique to reduce the file size without degrading the visual quality. This compression technique was patented in 1985. Controversy over the licensing agreement between the patent holder, Unisys, and CompuServe in 1994 spurred the development of the Portable Network Graphics (PNG) standard; since then all the relevant patents have expired. . . . [L]icenses were not required for website owners or other GIF users who had used licensed software to generate GIFs. (Italics mine.)

You can find millions of GIF files online. Millions, perhaps billions more exist in the holdings of stock agencies, digital archives, and other repositories. People make more of them every day; apps that I use as a matter of course — Photoshop, Preview — offer GIF format as a menu option. The proposition that at any time in the format’s history all these GIF images required the picture makers to undertake individual or batch licensing from the LZW algorithm’s patent holders, or otherwise existed — and still exist — in bootleg status, is (forgive me) patently ridiculous.

•

The fact that those patents effectively precluded incorporating a GIF-creation function into open-source/freeware/shareware applications sparked a “Burn All GIFs” movement among believers in the open-source/freeware movement. That ended when the patents lapsed. The PNG format evolved specifically as a non-patented alternative to the GIF.

Perhaps some dim, befuddled memory of that controversy has lodged in Laughlin’s RAM. Who knows where Laughlin came by his cockeyed, clearly erroneous interpretation of those patents’ scope and restrictions, or how long and how widely he’s spread it? Or whether, once his error gets pointed out and he confirms it, he will trouble himself to apologize to those he’s misinformed about this over the years and correct his mistake? (For some people, good intentions mean never having to say you’re sorry.) I herewith invite him to explain himself here, in a comment or, if it takes more space, a Guest Post.

I’m variously amazed, amused, bemused by the amount of misinformation about IP issues in circulation, and the attitude of hapless bewilderment adopted by many otherwise competent professionals in relation to them. While copyright law, trademark law, and patent law certainly have their complexities, the basic principles thereof, including the “fair use” exception to the copyright law, hardly qualify as arcane.

Don’t let the laziness or ineptitude of others discourage you from learning about this. It ain’t rocket science. Even trademark law and patent law, much less familiar to the lay public, function according to elementary rules and reasoning that aren’t hard to grasp. For example, it would be close to impossible for a publication, either in print or online, to violate anyone’s patent, as Laughlin proposed. Patents apply mostly to unique formulas, production techniques, and the design of physical objects. (Which is why you never see the “patent pending” label on a text or image.) More likely, a publication might breach trademark law or, most commonly, copyright law.

If you find these subjects of interest, or pertinent to your own production or usage of IP, you’ll find ample explanation of all of them available online at the sites of professional organizations of IP producers, IP lawyers, the U.S. government, and elsewhere. Much more reliable than what you’ll read or hear at the sites of casual bloggers, general-audience forums, YouTube, and other folkloric venues, where such myths as “poor man’s copyright” continue to perpetuate themselves.

And more reliable than what you find here, though I do careful research, link to my online sources so you can weigh them for yourself, consult with professionals on issues I don’t understand, and have acquired enough knowledge over the decades to teach seminars on copyright and subsidiary-rights licensing for the National Writers Union. As I reiterate regularly, I’m not a lawyer. Please consider my commentaries on IP issues as the opinions of an informed layman, treat them as introductions to those subjects, and pursue your self-education via the resources I suggest.

To the best of my ability and knowledge I operate strictly and cheerfully within the constraints of that legislation here at Photocritic International, as well as at the other sites I publish and, as a standard practice, in all my work as a professional writer, lecturer, and curator. That’s why, practicing what I preach, I can in good conscience castigate those who swipe my IP, and stand in support of others whose IP gets looted by reivers.

(To forestall equally well-intended but equally misguided readers from expressing concerns about my use of corporate and other logos to illustrate Photocritic International, as exemplified in this post, I quote from Wikipedia: “U.S. law protects the right of non-owners to use trademarks for purposes of criticism and commentary. First Amendment considerations override any limits on these expressive, noncommercial use of trademarks.” I use logos here only in conjunction with critical commentary relevant to the entities represented by said images.)