Commercial Skipping Technology and the New Market Dynamic: The Relevance of Antitrust Law to an Emerging Technology

By: Jesse Haskins Commercial-skipping technology can liberate the consumer and make the television business more competitive. It rose to prominence with the advent of the digital video recorder (DVR), also known as the personal video recorder (PVR). PVRs have helped advertisers reach their target audience more effectively through personalized advertisements, and it has successfully pressured television networks and advertisers to innovate more appealing ways to induce consumers to buy advertised products. But even if this technology fails to enhance the business of television, television networks can still outpace commercial-skipping technology in an arms race. Through competitive pressure, such technology promotes innovation, progress, and a more competitive market without posing an undue burden on the entertainment industry. Download Full Article (PDF) Cite: 2009 Duke L. & Tech. Rev. 006

Circumventing Access Controls Under the Digital Millennium Copyright Act: Analyzing the SecuROM Debate

By: David Fry Despite using one of the most sophisticated digital rights management systems currently available, the video game Spore was illegally downloaded approximately 1.7 million times between September and December of 2008, making it the most widely pirated game of 2008 by more than half a million downloads. This iBrief addresses several legal arguments that have been raised against a digital rights management system called “SecuROM,” which is widely used by video game companies like Electronic Arts, the publisher of Spore. First, the iBrief discusses the comparisons that have been drawn between SecuROM and the controversial digital rights management technologies previously employed by Sony BMG Music Entertainment. Second, the iBrief addresses the question of whether highly restrictive implementations of SecuROM may be legally circumvented under the Digital Millennium Copyright Act. Third, the iBrief discusses the potential for using the Digital Millennium Copyright Act’s three-year rulemaking procedure to obtain certain exemptions for circumventing systems like SecuROM. Download Full Article (PDF) Cite: 2009 Duke L. & Tech. Rev. 005

Spore, DRM, and Pirates: UCITA and Market Realities

By: Charles Yeh The Uniform Computer Information Transactions Act (UCITA) attempts to regulate a nonexistent market failure. Regulators must understand the two market relationships in the software industry, the producer-consumer relationship and the producer-thief relationship, before they can draft effective regulation. Drafting regulations that affect both relationships can lead to market disruptions at best and market failure at worst. An analysis of the two relationships reveals that there has not been a market failure that needs regulating; rather, there is a lag in technology that prohibits proper demarcation between the two market relationships. Regulators should wait for technology to advance before adopting any legislation similar to UCITA. Download Full Article (PDF) Cite: 2009 Duke L. & Tech. Rev. 004

Circumventing Authority: Loopholes in the DMCA’s Access Controls

By: Adam L. Rucker In a world where digital pirates freely roam the internet, seemingly plundering at will, the providers of digital content must find a way to protect their valuable assets. Digital fences afford that protection–but not very well. Fortunately (for content owners), 17 U.S.C. §1201, passed as part of the Digital Millennium Copyright Act of 1998, was designed to fill the numerous gaps in those fences by forbidding activities designed to circumvent them. In its present state, however, §1201 does not adequately serve that purpose. Substantial flaws in the language of the statute render it virtually powerless to thwart piracy. If §1201 is to fulfill its intended role (without the need for creative judicial interpretation), it must be amended to rectify the discrepancies between Congress’ supposed intent and the language it chose. Download Full Article (PDF) Cite: 2009 Duke L. & Tech. Rev. 003

On the Perils of Inadequate Analogies

By: Dan Tammuz Linking law is barely a decade old. Over the course of this short period, a wide variety of approaches have come to light. In fact, different jurisdictions have come to different conclusions regarding similar issues. Recently, there has been a new addition to the jurisprudence. A Texas holding established that linking to copyright-protected content violates copyright. This iBrief argues that the reasoning in this decision is flawed. The opposite conclusion should have been reached by applying straightforward copyright analysis and by looking to recent case law regarding hyperlinking. Download Full Article (PDF) Cite: 2008 Duke L. & Tech. Rev. 0004

Domain Tasting Is Taking Over the Internet as a Result of ICANN’s “Add Grace Period”

By: Christopher Healey When a domain name is registered, the registrant is given five days to cancel for a full refund. While the purpose of this grace period is to protect those who innocently err in the registration process, speculators have taken advantage of the grace period through a process called “domain tasting.” These “domain tasters” register hundreds of thousands of domain names and cancel the vast majority of them within the five-day grace period, keeping only those that may be valuable as placeholder advertising websites or to holders of trademark rights. This iBrief will outline the “domain tasting” process, analyze why it is a problem, and discuss solutions to the problem. Ultimately, it concludes that the five-day grace period is unnecessary because it serves little, if any, legitimate purpose. Download Full Article (PDF) Cite: 2007 Duke L. & Tech. Rev. 0009

Newsgroups Float Into Safe Harbor, and Copyright Holders Are Sunk

By: Alicia L. Wright Usenet newsgroups are swiftly becoming a popular vehicle for pirating digital music, movies, books, and other copyrighted works. Meanwhile, courts ignore Usenet’s tremendous potential for copyright infringement. In Ellison v. Robertson, the Ninth Circuit Court of Appeals found that America Online’s Usenet service might qualify for safe harbor under the Digital Millennium Copyright Act. According to the district court below, safe harbor would preclude a finding of secondary copyright infringement against America Online. However, the courts misinterpreted the safe harbor provisions. One safe harbor provision was misapplied and another was ignored altogether. This iBrief critiques the Ellison opinions and analyzes the application of the safe harbor provisions to Usenet operators. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0019

Injunction Junction: Remembering the Proper Function and Form of Equitable Relief in Trademark Law

By: Ryan McLeod Injunctions are supposed to be among the most extraordinary remedies in the American judicial system, yet they have become anything but rare in trademark litigation. Although the unique nature of trademark protection may explain the frequency of injunctive relief, the process by which this relief is issued is rapidly devolving into rubber-stamping by the courts. This iBrief argues that courts should (1) recommit themselves to the principles of equity before granting injunctions and (2) seriously apply the specificity requirements of Rule 65(d) of the Federal Rules of Civil Procedure to avoid overly broad orders. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0013

Download, Stream, or Somewhere in Between: The Potential for Legal Music Use in Podcasting

By: Benjamin Aitken Podcasting is an increasingly popular new digital technology with the potential to be a great conduit of expression. Currently, the use of music is limited in podcasting due in large part to uncertainty as to what rights must be licensed before copyrighted music can be used legitimately. This iBrief examines what legal rights are implicated by podcasting by analyzing U.S. copyright law and comparing related technologies. This iBrief concludes that onerous licensing requirements are unnecessary, and for podcasting to realize its potential, a simple licensing framework must be established. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0012

Unfinished Business: Are Today’s P2P Networks Liable for Copyright Infringement?

By: Christine Pope In June 2005, the U.S. Supreme Court issued the decision in Metro-Goldwyn-Mayer Studios v. Grokster Ltd., a case that asked whether peer-to-peer networks may be held liable for facilitating the illegal distribution of music over the internet. The music industry petitioned the Supreme Court to settle the disagreement between the circuit courts over the standard of liability for aiding in copyright infringement. The case was based on a clash between the protection of technological innovation and the protection of artistic works. This iBrief examines the circuit split and the Grokster opinion and discusses the questions of liability left unresolved by the Supreme Court. It argues that further clarification of the Sony rule is still needed in order to encourage the proliferation of legitimate peer-to-peer networks by protecting their services while discouraging illegitimate file-sharing activities. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0022