A commenter recently responded to one of my previous posts with the following (edited to remove the focus from any specific app and put it back on the whole community, which has always been the focus of this series):
I perceive the whole "Design Piracy" series to exist for the purpose of building the case that [the apps you've been discussing] didn't lift 37 Signals' Intellectual Property. But if it can be shown that 37 Signals pioneered the look of their apps, how can we build apps that look exactly the same and claim them as our own?
I also take argument with the phrase "exactly the same" as I think that is not the case for any of the apps we've been discussing. But lets talk IP.
What is Intellectual Property?
First we need to learn what Intellectual Property actually is. From Wikipedia on Intellectual Property:
Intellectual property (IP) is a legal field that refers to creations of the mind such as musical, literary, and artistic works; inventions; and symbols, names, images, and designs used in commerce, including copyrights, trademarks, patents, and related rights. Under intellectual property law, the holder of one of these abstract "properties" has certain exclusive rights to the creative work, commercial symbol, or invention by which it is covered.
But what is IP itself?
The term "intellectual property" denotes the specific legal rights described above, and not the intellectual work itself.
Intellectual property can consist of patents, trade secrets, copyrights and trademarks, or simply ideas.
In the various sources and definitions I read there seems to be disagreement on whether IP includes the actual idea, invention, or design itself (what I've always thought) or is only the specific legal rights to protect that idea, invention or design.
Let's think about both. I think they're inseparable.
IP as an intellectual work itself (apart from any laws or legal rights)
I have a great invention. It's really truly amazing. It will blow you mind and it's my "intellectual property", dude. But what does that really mean? Is my idea protected by "God" himself? If I talk about my idea what prevents it from becoming your idea or "intellectual property" as well? The problem is the word "property" can really take on no deeper meaning than "idea" until we have laws and rights in place to legally define and protect "property".
IP as specific legal rights
I have a great invention. I also have 10 design patents and 3 utility patents documenting that invention in great detail. I can now discuss my idea with you and I have a specific legal right to exclude you from making, using, offering for sale, selling or importing my invention. After we talk you may think it's your idea too, but it is solely my IP and I can defend it legally as such. Hurray for me!
Can IP be just an idea standing alone from it's legal protection?
I don't see how... To say "that is my IP, hands off" and then be unable to point to any legal protections to show in what way it is truly "yours"... Who is to say it really belongs to you at all and doesn't belong to all of us? Thankfully it isn't yours just because you say or think it is. This is why we have laws and specific legal rights in the first place.
It wouldn't matter if 37signals pioneered the "look and feel" in question or not. That would not automatically make it their own intellectual property (unless there is some law to this effect). To accuse anyone of "stealing 37signals intellectual property" and not at the same time point to the specific legal rights 37signals has to even claim it as their own IP is a very hollow argument. As we've seen above Intellectual Property can not really exist in any meaningful sense apart from the laws and legal rights to define and protect it.
Thankfully 37signals is not making this same hollow argument. They have said very clearly that they believe their "look and feel" is protected under U.S. Copyright law... that's the claim we'll be examining next.
Just having an idea does not legally make that idea your own "property". Your idea could already be someone else's "property" (think existing patents) and you just don't know it yet. It could also be that your idea simply isn't protectable as "property" under current law and therefore you could in no legal capacity "own" that idea as "property".
It could be there are steps you are first required to take before you can claim the idea as your own "property". Perhaps it's not your property yet, but it could be in the future if you were to file a patent before someone else, etc.