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MSPs’ IP Insights from a copyright lawyer

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MSPs’ IP Insights from a copyright lawyer

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MSPs’ IP Insights from a copyright lawyer

 

 
 

 

 

 

Whenever an industry storm is brewing or I can sense change on the horizon, I find myself wanting to talk to a lawyer. And not just for support in navigating the legal demands of my own business; when I know I should be worried about something more big picture, but don’t know where to focus my energy, lawyers are usually a few steps ahead worry-wise. 
 
And with the generative AI storm very much at our doorsteps, I’ve been mulling over how intellectual property will play into things – especially for small businesses without much experience in the field. 
 
To understand how these two topics intertwine, I recently welcomed Steven Wiegler onto a bonus episode of The Business of Tech. As the Founder and Managing Partner of EmergeCounsel, Wiegler is on a mission to provide legal counsel on the protection of intellectual property and business assets to clients around the world at an approachable price point. 
 
Here’s what we got into:
 
MSPs’ Most Valuable IP 
 
If you haven’t even considered pursuing intellectual property counseling due to the smaller size of your MSP, you’re not the only one. Many folks in this position oftentimes assume that as a value-added reseller delivering technology services, there’s not a lot of IP worth protecting. 
 
However, Wiegler confirmed my own suspicion that there’s actually a lot of IP worth protecting, even within smaller MSPs. In order to find out what yours may be, Wiegler recommends starting with a very simple question: what is the value of your company?
 
It could be a cost proposition, it could be your platform-oriented approach, it could be your notably strong relationships with vendors – there are a lot of reasons why a service business could have a competitive advantage over its peers. And if you can’t identify one, Wiegler recommends asking yourself an even simpler question: why are you around?
 
“There’s a reason the customer’s calling you as opposed to someone else, and that is most likely a combination of your brand – meaning they trust that the customer experience is going to be good – and that you have some internal things that you do very well in operations,” he said.
 
So whatever your intrinsic value may be, whatever makes you stand out, as an IP attorney, Wiegler’s job is to distill the aspects of your brand that are protectable – that you want to make sure that no one else takes – and protect that against potential infringement (from employees, independent contractors, competitors, etc). 
 
Again, in his words:
 
“Your processes and procedures might be something that’s unique, and you might want to copyright that. You might have a unique code sequence that’s custom-coded or source code that you’re using that is worthy of some copyright protection… can you get a computer to do a unique sequence of things that could be considered an invention that could be looked at?”
 
If you can only picture IP protection being important in a larger business, Wiegler pointed out two things to keep in mind.
 
First, you might want to sell your business one day, which means you’ll want to protect your playing cards against competitors. IP protection can add financial value to a sale if and when this time comes. 
 
Second, this process can be a form of defense. Using a program called Total TM, Wiegler helps his clients search the marketplace to see if anyone else has been using your potential mark. And if someone else has been using it, you have potential defensive issues – AKA, you might get sued someday. 
 
And with his business model, this search process is actually quite cheap, usually under $1,000.
 
“The beautiful thing about protecting intellectual property is it’s an even playing field. It’s really like there’s government fees, there’s very little attorney cost, and if you go through the process and protect it, you can blow a wall the size of your business to protect yourself,” he said.
 
AI’s Complications
 
As you might expect, Wiegler is gearing up to handle the impending AI copyright storm. Here’s what he wants you to understand about the issue:
 
“Here’s the situation, everyone. AI didn’t create itself. It was created by really smart computer scientists scanning a lot of copyrighted material because if you look at most books, most sources of information, the Encyclopedia Britannica, Wikipedia … unless they’re government resources, they’re mostly copyrighted. And so, [generative AI] is scanning all this data and then pulling from it and twisting and turning it and cranking it out in a form that the user wants.”
 
Considering that this model is the literal definition of generative AI, the ramifications of someone using it to promote a good, service, or product – and therefore using the copyrighted work that was used to create the AI itself – is a super loaded issue that hasn’t yet been settled by the courts. 
 
Although Wiegler added that he completely understands why you wouldn’t want to give up the tool simply because of a theoretical copyright concern, at the bare minimum, he recommends double-checking that whatever AI-generated content you want to push out publicly hasn’t been used before under copyright. 
 
He mentioned the Andy Warhol Supreme Court case here, noting that although the courts usually take copyright extremely seriously, this hasn’t yet been tested against code. Will code ever be considered a tangible work of art like literature? 
 
Despite his expertise on the topic, Wiegler can’t confidently say where he thinks the legal line will eventually be drawn. When lawyers are confused and befuddled over a new technology, you know it’s disruptive.
 
A Final Note on SaaS
 
Wiegler also has some interesting insight into how SaaS relates to all of this. When it comes to IP potential, he recommends people in this industry focus on distinguishing their front end development. 
 
Because you’re likely using an existing product for the back end and database with subscription models and licenses, the part that users look at is what you actually get to claim ownership over. 
 
“You’re providing a service, so you have to understand what services you’re providing and what legal liabilities you have for that. And between that and really customizing the customer experience or UI, which again is something that’s copyrightable and trademarkable, you can really excel at that SaaS model.”
 
If you want to take advantage of that IP potential, make sure you start thinking about it as early as possible in the SaaS development process. 
 

 
That’s it for this week! To learn more about Wiegler’s expertise and services, head to www.EmergeCounsel.com
 
As always, I’m open to discussion at [email protected].
 

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