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I have been working on a project for about 6 months and it is finally done. Done meaning the bones of the software, all the servers are in place, the beta testing is ready to begin and in the real world. The project No Free Time is ready to get a real name (scary right).

Domains need to be bought... you get the idea.

Where to go now though, when developing a for profit piece of software like a webapp there are a lot of issues and I do not even know square one.

There are intellectual property concerns, there are trade marks, there is lawyer stuff. All of those things are expensive and probably don't need to happen at once. Is that the first step, and which of those steps are the most important.

How do you get a webapp or piece of software off the ground safely? How do you begin to establish and protect your software/website/intellectual property, what are the cheap first steps, what steps can be postponed, and what must absolutely be completed before your software touches the public?

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migrated from stackoverflow.com Apr 21 '11 at 14:34

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This is not really about starting a business it's more a question about how to protect your work. I checked there and really felt that SO was a better forum. –  austinbv Apr 21 '11 at 3:29
Good question, but most of the people here also have very little experience with those things - you are better off asking this on answers.onstartups.com and then coming back here with the more specific technical questions. –  Justin Apr 21 '11 at 3:51

3 Answers 3

up vote 2 down vote accepted

There are intellectual property concerns, there are trade marks, there is lawyer stuff.

These are things to consult an attorney for. Don't ask a bunch of programmers, ask someone who has both the legal training an experience to tell you what you need, when, and how to get it.

How do you begin to establish and protect your software/website/intellectual property, what are the cheap first steps, what steps can be postponed, and what must absolutely be completed before your software touches the public?

I am not an attorney and this is not legal advice, but it should help you figure out what questions you need to ask when you do talk to your attorney.

You're asking some questions here that you shouldn't concern yourself with. At the moment, all you need is your Trademarks. If you accept user-generated content, you'll want to also appoint an attorney as your DMCA agent (so that you can enjoy "Safe Harbor" protections in the US).

You do not need to be concerned with so-called "intellectual property" at this stage, not least because "IP" is a fallacious, non-existent concept. Copyright, Patent, and Trademark laws are not property rights, and you should not think of them as such. They are legal monopoly protections; no more, no less. Moreover, aside from your Trademarks, you have nothing to be concerned about.

You should be concerned primarily about making your business work.

But I have some other notes:

In the first matter of Copyright: There is nothing you need to do if you live in a country who is a signatory of the Berne Convention. Your work is already under Copyright and enjoys its protections. But bear in mind that Copyright covers only that which you distribute or that is copied. It does not protect your business model, and it does not protect you from competition. It only protects things such as your website design, your client-side JavaScript, your content, and (heaven forbid that it gets leaked) your back-end server code. Although the last of those is already protected under Trade Secret laws, it does also have Copyright protection.

In the US, if you wish to make things easier for yourself in Court, it's recommended that you register your Copyrighted works at the Library of Congress. Your attorney can assist you in this. It is not strictly necessary to put a © at the bottom of every page, but it does serve as a reminder to those who view it that it is protected under Copyright. But having the © on the page has no bearing as to whether your work is protected under Copyright. It is merely a notice. (There are a lot of misconceptions and confusion about how to protect your Copyright. Read Copyright.gov's FAQ.)

In the second matter of Trademarks: Trademark law protects you from anyone using the name of your company or project in a way that may confuse your customers. It does nothing else. You will need Trademark protection regardless, and it is recommended to get one early, ideally before release. Your attorney can help you with that.

In the third matter of Patents: Your work probably already violates at least one patent. It doesn't matter what it is or what it does; there's already a patent on some part of it. If you have patents of your own, you may be able to use it as a defense if or when another patent holder decides to sue. Your attorney may recommend patenting some aspects of your project, but you will find this a difficult prospect at best (since software enjoys fewer favorable Patent protections since In re Bilski and since there is so much prior art and academic work that may already have covered anything you might plan to patent). I'd also like to point out that if you have read or if you search for patents, then if someone sues you for violation and wins, they will win treble damages for your "willful" infringement. It is best if you avoid reading patents altogether, and that you ask your attorney not to search on your behalf.

Lastly, I want to point out that "owning" a patent on something does not really protect you from anything. Software patents in particular are frequently overturned, limiting their usefulness in Court. Moreover, taking an aggressive litigious stand with patents is counterproductive, because it takes your attention and capital away from running your business. If you have or plan to get patents, the only sensible route is to hold them defensively. That way, you can focus on growing your business and keeping your customers happy, and if someone does sue you for patent violation, you might be able to get a licensing agreement without wasting millions of dollars in Court. That said, it is not a sure thing: There are a lot of non-practicing entities who will sue you, and all you can do is fight it and get it overturned. (Which, for most software patents, is comparatively easy to do compared to other types of patents. There is often abundant prior art that the USPTO never saw.)

In regard to the idea of "intellectual property theft": I'd like to point out that there is no such thing as "intellectual theft," and it's dangerous to go down that rabbit hole. Again, patent, copyright, and trademark laws are not property laws, and infringements of those monopoly rights is not theft. No one can take your rights from you except the government. When someone violates one of your monopoly rights, it is merely infringement and nothing more. Thinking about it as property and theft of property is intellectually dishonest and leads you down a path where you will be more concerned about your monopoly rights even as your business crumbles and disappears into bankruptcy. You should not concern yourself with those who infringe on your works. as long as you can deliver a superior product, you won't need to fear any loss, since, really, nothing has been lost.

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Too bad I can't give you +10! –  Ingo Apr 21 '11 at 17:37
Thank you, this is an amazing answer. The point of the protection is not to eliminate competition or go aggressively seeking out people who do the same thing. I just figured it was important to legally secure your place in the market. –  austinbv Apr 21 '11 at 17:51
@zobgib: I want to clarify that none of this will help you "secure your place in the market." The only way to secure yourself is to make yourself invaluable to your customers. You do that by making it your business to provide the best possible services to your customers at the lowest price reasonable. –  greyfade Apr 25 '11 at 16:21

The very first step is to make sure all your code is under proper copyright. Fortunately, that's pretty simple: just add the following notice

Copyright © 2011 by austinbv. All rights reserved.

where austinbv is your actual name, of course, or the name of your company, depending on how you want to set up the rights.

I recommend doing that before you go beta. Believe it or not, this does provide some protection should someone steal your code and tries to publish it as their own. It would be best, however, to pay the ~$100 fee and register the copyright with the US Copyright Office. This provides you the ability to sue for statutory damages (otherwise, all you can do is sue for actual damages, which is considerably harder to substantiate).

If you think you’ve come up with a genuinely original concept/process, however, you can try to get it patented. This is much more expensive, as you have to rule out prior art and make your patent as bulletproof as possible. (This is when a lawyer with expertise in this field comes in very handy.)

Trademarks are less important up front; they’re useful for promoting your business, and doing business as an established entity, but they’re not critical for the beta-testing process. Still, might be useful to start thinking about that.

That help?

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ou're telling me it's really as simple as just dropping a © at the bottom of the page? That seems like it could be the first step but there must be something more when movie/music companies spend millions on protecting that little © and their intellectual property. –  austinbv Apr 21 '11 at 15:48
@zobgib What mcflk said is correct. In the United States your work is copyrighted upon creation, whether it's marked or not. However it makes it easier to enforce your copyright when you've marked and registered it. –  M. Dudley Apr 21 '11 at 16:23

First, your best bet is probably to find a real advice from a lawyer. IP is law. Let law people talk about law. But IP is not the problem when thinking about competition. Patents can be worked around or challenged in court. This is why I strongly believe in open source: business models matters more than secret recipes.

Once, in a class long ago, a teacher told me about something called Porter five forces analysis. While like many techies I'm not a fan of this kind of stuff, this one is worth taking some time to think. Porter helps you to understand about competitiveness. What competitive forces affect your business?

Why I'm talking about this? Because the whole business model matters, not only your idea.

Like, imagine you have a really novel idea, get the world's best IP lawyer and no one is able to copy your idea. But your product, like Superman, has a major weakness: it depends on a special component from a big supplier. Why can't this big supplier, seeing your major idea, jack up prices for this component and eat all your fabulous profit margins? Sounds jerky, I know. But you really should expend some time thinking about this kind of thing.

After you spend some time thinking about Porter forces do a SWOT analysis. SWOT will help you to see the dangers along the way.

I wish you the best of luck. The race is long, rely only on yourself and don't believe too much in random advice you find, including this one.

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Well the goal for the software is a service that is opensource but charge for institutional use. –  austinbv Apr 21 '11 at 17:40

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