Category: Copyrights & Trademarks

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

By: Benjamin Aitken A number of trademark holders have recently challenged the policies of Google and other Internet search engines that allow the trademark owner’s competitors to purchase advertising space linked specifically to the owner’s trademarks when entered as search terms. This iBrief examines the application of trademark law to this practice and concludes that Google would be contributorially liable for trademark infringement only when the advertising links lead to consumer confusion about the identity of the advertiser. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0021

By: Elisabeth Hanratty Last December Google announced the formation of partnerships with select major libraries to begin digitizing and storing the libraries’ collections online. Google aims to provide individuals with the ability to search the full text of these books from anywhere using the Google search engine. This project will greatly increase access to those works in the public domain, but what about the books still under copyright protection? This iBrief examines the copyright implications of this ambitious project and concludes that the project, as described, does infringe the rights of copyright holders. It further concludes that while such infringement is unlikely to be found to be a fair use, it may ultimately be in the copyright holders’ best interests to acquiesce to Google’s infringement. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0010

By: D. Branch Furtado The entertainment industry has obsessed over the threat of peer-to-peer file sharing since the introduction of Napster in 1999. The sharing of television content may present a compelling case for fair use under the long-standing “Betamax” decision. Some argue that television sharing is fundamentally different than the distribution of music or movies since television is often distributed for free over public airwaves. However, a determination of fair use is unlikely because of the fundamental differences between recording a program and downloading it, recent regulation to suppress unauthorized content distribution and shifts in the television market brought on by new technology. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0007

By: Aashit Shah The debate surrounding utilization of technological protection measures to secure copyrighted works in the digital arena has raised many an eyebrow in the past few years. Technological protection measures are broadly bifurcated into two categories: access control measures such as cryptography, passwords and digital signatures that secure the access to information and protected content, and copy control measures such as the serial copy management system for audio digital taping devices and content scrambling systems for DVDs that prevent third parties from exploiting the exclusive rights of the copyright owners. Copyright owners have been wary of the digital environment to exploit and distribute their works and therefore employ technological protection measures, whereas consumers and proponents of “free speech” favor the free and unrestricted access, use and dissemination of copyrighted works digitally. Download Full Article (PDF) Cite: 2004 Duke L. & Tech. Rev. 0003

By: Frank Chao The Recording Industry Association of America (“RIAA”), the music industry’s trade and lobbying group, recently initiated a controversial tactic to bring to surface previously anonymous digital pirates of the Internet. This aggressive tactic aims to make safe the digital oceans for copyright and involves identifying and bringing claims against infringing individuals who download, swap, and/or post copyrighted music illegally via the Internet. The RIAA cares not who the infringers are or whether the infringers know the illegality of their actions. Nor does the music industry concern itself with the inevitable storm of backlash bound to fall upon them for suing uninformed or unintentional infringers. Internet users and privacy advocates, however, care all too much. This i-brief attempts to alleviate the fears of privacy infringement by bringing to light certain safeguards built into the Digital Millennium Copyrights Act (“DMCA”) to deal with the possibility of both fraudulent identity subpoenas and infringement into personal privacy. In addition, case law will show that the subpoena powers of the DMCA will not be abused by those who truly wish to enforce copyright laws and legitimate claims of ownership, thereby maintaining the privacy of law abiding Internet users. Download Full Article (PDF)

By: A. J. Bedel As the speed of Internet access improves, the film industry will need to explore its options for eliminating the downloading of digital movie files. After examining the successes and failures of the music industry in its battle with peer-to-peer networks, the film industry has begun to follow its predecessor. However, the nature of film as an entertainment medium is quite different than that of music. As a result, the film industry could implement creative solutions to this problem that would not have been available to the music industry. A recent study shows that most films available on the Internet have been leaked by industry insiders. By implementing an increasingly publicized use of trade secret litigation, the film industry could take a tough and effective stance against the digital dragon. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0031

By: Joshua G. Graubart The confused state of most state corporate merger statutes allows many intellectual property licenses to find their way into unintended hands by way of corporate merger, in spite of non-assignment clauses. Clearly a detriment to licensors, corporate licensees too should be wary of depending upon the merger statute; a court ruling may not go their way. The states must clean up their collective act and bring some much needed certainty to a highly unpredictable intersection of corporate and intellectual property law. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0025

By: Jessica Bohrer Until recently, the question of whether §43 of the Lanham Act prevented the unaccredited copying of an un-copyrighted work was an open one. However, in Dastar v. Twentieth Century Fox, the United States Supreme Court speaks directly on this issue, emphasizing the distinction between copyright and trademark protections and cautioning against “misuse or overextension” of trademark protections into areas traditionally covered by copyright or patent law. This iBrief assesses the importance of such line drawing and explores the implications of this decision. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0023

By: Dov Greenbaum The ambiguity of the present copyright laws governing the protection of databases creates a situation where database owners, unsure of how IP laws safeguard their information, overprotect their data with oppressive licenses and technological mechanisms (condoned by the DMCA) that impede interoperation. Databases are fundamental to scientific research, yet the lack of interoperability between databases and limited access inhibits this research. The US Congress, spurred by the European Database Directive, and heavily lobbied by the commercial database industry, is presently considering ways to legislate database protections; most of the present suggestions for legislation will be detrimental to scientific progress. The author agrees that new legislation is necessary, but not to provide extra-copyright protections, as database owners would like, but to create an environment wherein data is easily accessible to academic research and interoperability is encouraged; yet simultaneously providing database owners with incentives to produce new databases. One possibility would be to introduce standardized compulsory licensing of databases to academics following an embargo period where databases could be sold at free-market prices (to recoup costs). Databases would be given some sort of intellectual property protection both during and after this embargo in return for a limiting of technical