The Greatest Book You Will Never Read: Public Access Rights and the Orphan Works Dilemma

By: Libby Greismann Copyright law aims to promote the dual goals of incentivizing production of literary and artistic works, and promoting public access and free speech. To achieve these goals, Congress has implemented a policy that acknowledges the rights of both the copyright holder and the public, which vest with the fixation of the work. However, as Congressional action has strengthened copyright protection, the rights of the public have been narrowed. Orphan works โ€“ works to which the copyright owner cannot be located or identified โ€“ present a unique problem, in that achieving free access and use of the works is often impossible. This note argues that the public has a recognizable right in both gaining access to and using orphan works โ€“ a right which emanates from, but is tangential to, the First Amendment right to free speech. Download Full Article (PDF) Cite: 11 Duke L. & Tech. Rev. 193

DMCA Safe Harbors and the Future of New Digital Music Sharing Platforms

By: Jing Xu SoundCloud is an online service provider that allows users to upload, share, and download music that they have created. It is an innovative platform for both amateur and established producers and disc jockeys (DJs) to showcase their original tracks and remixes. Unfortunately, it is also a platform that lends itself to widespread copyright infringement. Looking toward potential litigation, several factors ought to be considered by SoundCloud and other similar providers. The Viacom v. YouTube case, decided in the Southern District of New York and now currently on appeal in the Second Circuit, sheds light on the potential liability service providers like SoundCloud face. It draws out the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions under which SoundCloud could potentially find protection. However, SoundCloud is unique among similar service providers because it provides users with a variety of viewing, sharing and downloading options that are built into the platform. These options could lead to infringement that would not fall under a DMCA safe harbor. This Issue Brief will discuss the various arguments to be made for and against SoundCloud’s liability, and examine whether the unique utility provided by the service to users could be sustained in the

Copyright for Couture

By: Loni Schutte Fashion design in America has never been covered by the extensive intellectual property (IP) protections afforded to other categories of creative works or to the art in other countries. As a result, America has become a safe haven for design pirates. Piracy disproportionately harms young designers who do not have established trademarks for their brands and must rely purely on creativity to propel their designs into the market. H.R. 2511 is a bill that aims to extend copyright protection to fashion designs, albeit narrowly. Compared with previous proposals to extend effective IP protection to fashion design, H.R. 2511 is more of a sui generis protection aimed at the particularities of the fashion industry. It was the result of intensive negotiations between parties of conflicting interests, and has been tailored to address specific yet ubiquitous problems in the fashion industry. Download Full Article (PDF) Cite: 2011 Duke L. & Tech. Rev. 011

Copyright Enforcement of Non-Copyright Terms: MDY v. Blizzard and Krause v. Titleserv

By: Justin Van Etten The rise of software and software licensing has led to another phenomenon: the attempted enforcement of software licenses through copyright law. Over the last fifteen years, content creators have begun to bring copyright suits against licensees, arguing that violation of license terms withdraws the permission needed to run the software, turning the use of the software into copyright infringement. Not surprisingly, courts have rejected this argument, and both the Ninth Circuit, in MDY v. Blizzard, and the Second Circuit, in Krause v. Titleserv, have developed new legal rules to prevent copyright enforcement of contract terms. This iBrief explores software licensing in detail, analyzes the courts’ responses, and concludes that the Ninth Circuit’s approach to copyright enforcement of license terms is preferable to the Second Circuit’s approach because it is supported by legislative history, more straightforward, and more likely to prevent future content creators from enforcing their licenses through contract. Download Full Article (PDF) Cite: 2011 Duke L. & Tech. Rev. 007

Speaking of Music and the Counterpoint of Copyright: Addressing Legal Concerns in Making Oral History Available to the Public

By: Jeremy J. Beck & Libby Van Cleve Oral history provides society with voices and memories of people and communities experiencing events of the past first-hand. Such history is created through interviews; an interview, however, like any other type of intellectual property—once in a fixed form—is subject to copyright law. In order to make oral history available to the public, it is critically important that individuals generating and acquiring oral history materials clearly understand relevant aspects of copyright law. The varied nature of how one may create, use, and acquire oral history materials can present new, surprising, and sometimes baffling legal scenarios that challenge the experience of even the most skilled curators. This iBrief presents and discusses two real-world scenarios that raise various issues related to oral history and copyright law. These scenarios were encountered by curators at Yale University’s Oral History of American Music archive (OHAM), the preeminent organization dedicated to the collection and preservation of recorded memoirs of the creative musicians of our time. The legal concerns raised and discussed throughout this iBrief may be familiar to other stewards of oral history materials and will be worthwhile for all archivists and their counsel to consider when reviewing their

Applying Copyright Abandonment in the Digital Age

By: Matthew W. Turetzky Copyright law protects orphan and parented works equally–but it shouldn’t. Consequently, current law unnecessarily restrains public access to works that authors have not exercised dominion over for decades. This problem has come to the fore in the Google Books settlement, which critics argue will give Google a de facto monopoly over orphan works. But this criticism implicates an obvious question: Why are orphan works protected by copyright law in the first place? If orphan works were in the public domain, then no one would worry about Google’s supposed “monopoly” because Google’s competitors would be free to copy the works without facing class action lawsuits. To address these concerns, I propose a new equitable defense to copyright infringement: the orphan theory of abandonment. Download Full Article (PDF) Cite: 2010 Duke L. & Tech. Rev. 019

Private Ordering and Orphan Works: Our Least Worst Hope?

By: Keith Porcaro The political capture of copyright law by industry groups has inadvertently led to orphan works problems arising in less organized industries, such as publishing. Google Book Search (GBS) is a prime example of how private ordering can circumvent legislative inefficiencies. Digital technologies such as GBS can open up a new business model for publishers and other content industries, centered around aggregated rights holdings. However, the economic inertia that private ordering represents may pose a threat to the knowledge-oriented goals of copyright law. Download Full Article (PDF) Cite: 2010 Duke L. & Tech. Rev. 015

Chatter, Clatter, and Blinks: Defective Car Alerts and the Role of Technological Advances in Design Defect/failure to Warn Cases

By: James Forrest McKell Jr. Car owners are familiar with the warning lights on the dashboard and the beeping sound reminding them to use their seatbelt. But, neither the legislature nor courts have concretely defined the legal nature of these alerts. This iBrief will analyze when a deficient alert becomes a defective product tort claim and determine the appropriate theory under which such claims should be brought. Download Full Article (PDF) Cite: 2010 Duke L. & Tech. Rev. 010

The Class Defense: Why Dispersed Intellectual Property Defendants Need Procedural Protections

By: Jonathan Reich The intersection of antitrust and intellectual property circumscribes two century-long debates. The first pertains to questions about how antitrust law and intellectual property law interact, and the second pertains to questions about how parties can exploit property rights, including intellectual property rights, to exclude competitors. This iBrief finesses these questions and turns to practical considerations about how innovation and intellectual property can impinge antitrust enforcement. This iBrief develops two propositions. First, although collaborative research and development has often been and remains unwittingly misunderstood, what is understood about it is consistent with the long- standing observation that antitrust has rarely interfered with collaborative ventures. Second, shifting focus from “intellectual property rights” to “uncertain property rights” makes it easier to understand what innovation and intellectual property imply for enforcement processes. Both intellectual property and tangible assets imply the same processes, but the boundaries of intellectual properties may be uncertain and may, in turn, allow parties to game enforcement processes in ways that would not be feasible in antitrust matters that principally feature tangible assets. Even so, uncertain property rights might not frustrate enforcement processes as the antitrust authorities may yet be able to factor parties’ strategic behaviors into the

Lenz v. Universal Music Corp. And the Potential Effect of Fair Use Analysis Under the Takedown Procedures of ยง512 of the DMCA

By: Kathleen O’Donnell The notice and takedown/putback procedures in §512 of the Digital Millennium Act fail to adequately protect the rights of individuals who post content on the internet. This iBrief examines the notice and takedown/putback procedures and Judge Fogel’s decision in Lenz v. Universal Music Corp., which requires a copyright owner to conduct a fair use evaluation prior to issuing a takedown notice. This iBrief concludes such a requirement is an appropriate first step towards creating adequate protection for user-generated content on the Internet. Download Full Article (PDF) Cite: 2009 Duke L. & Tech. Rev. 010