Category: Copyrights & Trademarks

By: Cody Duncan Compulsory licensing in music has paved the way for a limited class of new noninteractive services. However, innovation and competition are stifled in the field of interactive or otherwise novel services due to high transaction costs inherent in direct licensing. While the creation of a new compulsory license available to a wider array of services may facilitate growth and diversity in new markets, it is unlikely that the legislative process can deliver a new compulsory regime in time to serve relevant interests. Furthermore, the risk exists that legislation written in response to contemporary technology will likely fail to recognize the diversity within the music industry, and therefore will underserve both artists and potential licensees. As such, this brief argues for the creation and adoption of a new standardized protocol for artists and labels to announce the availability of new content with attached standardized licensing terms for automated integration into the catalogs of new or existing digital music services. Such a protocol would allow for automated systems of pricing, distribution, and tracking to reduce transaction costs, increase market transparency, and commodify user participation. Download Full Article (PDF) Cite: 13 Duke L. & Tech. Rev. 162

By: Taylor B. Bartholomew YouTube has grown exponentially over the past several years. With that growth came unprecedented levels of copyright infringement by uploaders on the site, forcing YouTube’s parent company, Google Inc., to introduce a new technology known as Content ID. This tool allows YouTube to automatically scan and identify potential cases of copyright infringement on an unparalleled scale. However, Content ID is overbroad in its identification of copyright infringement, often singling out legitimate uses of content. Every potential case of copyright infringement identified by Content ID triggers an automatic copyright claim on behalf of the copyright holder on YouTube and subsequently freezes all revenue streams, for all parties, regardless of the legitimacy of the underlying claim. Using the plight of one video game reviewer known as “Angry Joe” as a paradigmatic example of the problems that Content ID can create, this Issue Brief argues that in its present form, Content ID has had disastrous consequences for the doctrine of fair use, YouTube itself, and ultimately, the very spirit of copyright law. By shifting the neutral presumption accompanied with fair use against the uploader, Content ID effectively overrides judicial precedent. Download Full Article (PDF) Cite: 13 Duke L. &

By: Seth Ascher Sony has included a “share” button on the next version of their popular PlayStation video game system. This feature is meant to allow players to record and share videos of their gameplay. This service shares similarities with the controversial “record” button that Sony included with its Betamax players over thirty years ago. The Betamax player was the subject of the landmark case Sony v. Universal, a foundational case for the modern application of copyright law to new technology. This Issue Brief examines how this “share” feature would fare under the framework laid out by Sony v. Universal and other evolutions in copyright law. Download Full Article (PDF) Cite: 12 Duke L. & Tech. Rev. 231

By: Stephen J. Wang By the time the U.S. Supreme Court decided Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. in 2005, Internet users around the globe who engaged in copyright infringement had already turned to newer, alternative forms of peer-to-peer filesharing. One recent development is the “seedbox,” a virtual private server rentable for use to download and upload (“seed”) files through the BitTorrent protocol. Because BitTorrent is widely used for both non-infringing and infringing purposes, the operators of seedboxes and other rentable BitTorrent-capable virtual private servers face the possibility of direct and secondary liability as did the defendants in Grokster and more recent cases like UMG Recordings, Inc. v. Shelter Capital Partners LLC and Viacom Intern., Inc. v. YouTube, Inc. This Issue Brief examines whether the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) may shield virtual private server providers with customers running BitTorrent clients from potential liability for copyright infringement. It argues that general virtual private server providers are likely to find refuge in the safe harbor provisions as long as they conscientiously comply with the DMCA. In contrast, virtual private server providers specifically targeting BitTorrent users (“seedbox providers”) are much less likely to receive DMCA safe harbor protection.

By: Ali V. Mirsaidi Kim Dotcom, founder of Megaupload Limited, has been in many news headlines over the past year. Megaupload—one of Dotcom’s many peer-to-peer sharing sites—was the center of controversy, as it allowed users to upload and share all sorts of files, including copyrighted material. After an organized effort by the Department of Justice and several foreign governments, Dotcom was arrested for (secondary) copyright infringement and his site was ultimately shut down. Dotcom has recently launched a new service, MEGA, which he claims will evade copyright laws entirely. Like other well-known cloud-sharing services such as Dropbox and Google Drive, MEGA allows users to upload files and to share them with select users. In an attempt to avoid liability, MEGA locally encrypts all files on the user’s computer before they are uploaded to the site. The private key and public key used to encrypt and decrypt the file are retained solely by the user; MEGA gets no part of that information. This, Dotcom argues, will shift the entirety of the copyright onus to the user. This Issue Brief analyzes the protections afforded cyberlocker services like MEGA by the DMCA, including tensions raised in actual litigation. This Issue Brief argues that,

By: Michael Wolfe Publishers have spent the last decade and a half struggling against falling prices for digital goods. The recent antitrust case against Apple and the major publishers highlights collusive price fixing as a potential method for resisting depreciation. This Article examines the myriad ways in which digital distribution puts downward pressure on prices, and seeks to determine whether or not collusive price fixing would serve as an appropriate response to such pressure given the goals of the copyright grant. Considering retailer bargaining power, increased access to substitutes, the loss of traditional price discrimination methods, the effects of vertical integration in digital publishing, and the increasing competitiveness of the public domain, I conclude that the resultant downward price pressure might in fact significantly hamper the commodity distribution of digital goods. I remain unconvinced, however, that price fixing is an appropriate solution. The copyright grant affords rights holders commercial opportunities beyond simple commodity distribution. These other methods for commercializing e-goods suggest to me that current pricing trends are not indicative of market failure, but rather of a changing marketplace. Download Full Article (PDF) Cite: 12 Duke L. & Tech. Rev. 129

By: Matthew D. Bunker and Clay Calvert Examining recent judicial opinions, this Article analyzes and critiques the transformative-use doctrine two decades after the U.S. Supreme Court introduced it into copyright law in Campbell v. Acuff-Rose Music. When the Court established the transformative-use concept, which plays a critical role in fair-use determinations today, its contours were relatively undefined. Drawing on an influential law-review article, the Court described a transformative use as one that adds “new expression, meaning or message.” Unfortunately, the doctrine and its application are increasingly ambiguous, with lower courts developing competing conceptions of transformation. This doctrinal murkiness is particularly disturbing because fair use is a key proxy for First Amendment interests in copyright law. This Article traces the evolution of transformative use, analyzes three key paradigms of transformative use that have gained prominence in the post-Campbell environment, and offers suggestions for a jurisprudence in which transformative use is a less significant component of the fair-use analysis. Download Full Article (PDF) Cite: 12 Duke L. & Tech. Rev. 92

By: Sandra L. Rierson Statutory dilution claims are traditionally justified on the theory that even non-confusing uses of a famous trademark (or similar mark) can nonetheless minutely dilute the source-identifying capacity of the targeted trademark. This Article challenges that theory. The evidence that this phenomenon occurs is weak and has been subject to substantial empirical challenge. The true foundation for dilution claims lies not in alleged economic harms, but rather the misplaced fiction of corporate personality. We do not require trademark holders to prove actual economic injury in the context of a dilution claim because, at least in the vast majority of cases, there is none. Instead, we have granted the holders of famous trademarks the equivalent of a “moral” right to these marks, analogous to the rights granted to a creator of an expressive work in the copyright context. The parameters of that right have recently expanded in numerous ways that have increasingly burdened both competition and free speech. Recasting dilution law in a moral rights framework allows us to more accurately assess its costs and benefits, with normative implications for its continued existence and scope. In particular, the federal dilution statute should be repealed, amended, or, at the