Who Owns the Concept if No One Signs the Papers?

Who owns a bright idea? If the technology associated with an idea is new and the opportunities it offers are valuable, it will have many authors — most of whom may argue over ownership.When disputes over the provenance of an idea become particularly turbid, disappointed entrepreneurs will look to the courts, which often are of little help. As Lawrence Lessig, a professor at Stanford Law School, said, “The general rule is that ideas are free unless strapped down by contract or patent.” In practice, a great idea is owned by whoever expresses that idea most successfully.Consider the case of Mark Zuckerberg, founder and chief executive of Facebook, the fast-growing social networking Web site, who is being sued by Cameron and Tyler Winklevoss, twin brothers who were founders of ConnectU, another social network.

I suspect that Facebook would not exist had it not been for ConnectU. But in an interview, R. Scott Feldmann, an intellectual property lawyer and a partner at Crowell & Moring, explained why the judge should nevertheless dismiss the case.Ideas, Mr. Feldmann explained, are protected either by trade-secret contracts or by patents and copyrights. “Trade secrets may be maintained indefinitely,” he said, but “it does not appear that ConnectU had Zuckerberg sign a nondisclosure agreement, and disclosing a trade secret to someone without doing so would ordinarily result in loss of any trade secret status.”At the same time, Mr. Feldmann said, “copyright will not protect ideas themselves, only their expression” — in a Web site’s underlying source code, for instance. But if Mr. Zuckerberg was an unpaid, casual worker at ConnectU, and not an employee, then “he owns the code,” Mr. Feldmann said. Thus, even if the ConnectU plaintiffs can prove that the codes of two social networking sites were similar (an argument that Facebook seems confident it can refute), the Winklevosses might have no claims on Mr. Zuckerberg.”On the surface, it appears ConnectU will have some challenges,” Mr. Feldmann said.Many may sympathize with the Winklevoss twins. But in the absence of any formal contract, the twins are, in effect, arguing that they have rights to Mr. Zuckerberg’s imagination and experiences. In my book, that would be a constraint on the free marketplace of ideas.

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