Category: Copyrights & Trademarks

By: David L. Lange As most of the public now know, the recording industry has lately filed civil suits alleging copyright infringement against hundreds of individual defendants across the country, many (I think most) of them college students and campus hangers-on. Hundreds more such suits are said to be in the offing. The nature of the infringements? Peer-to-peer file sharing via the Internet: a kind of piracy, to use the term favored by the industry, or downloading, as it is generally thought of by the students themselves – but from either perspective, the practice of recording music from the Net while making it available in turn to others, using any of a growing number of computer programs designed to make the practice work. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0021

By: Shalisha Francis In regards to copyright the U.S. Constitution states: “Congress shall have the power . . . to promote the Progress of Science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The intellectual property clause was added to the Constitution because of the recognition of the importance of balancing both an author’s interest in protecting their creative works with the public interest in maintaining a method by which those same works could enter the public domain. However, the ability to properly perform this balancing act has proven more difficult than anyone could have expected. A recent Supreme Court case has tipped the scales and given artists and creators their just due. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0014

By: Graham J. Chynoweth This iBrief discusses how persistent international concern and emerging domestic concern over Chinese intellectual property theft have helped give sharper teeth to the Chinese copyright regime in the past two years and how these new laws may leave bite marks in the future. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0003

By: Gregory C. Walsh [I]f a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorially responsible for any harm done as a result of the deceit. Download Full Article (PDF) Cite: 2002 Duke L. & Tech. Rev. 0025

By: Yelena Simonyuk The advent of the Internet means incredible opportunity for global interaction. Consumers in Asia can buy from a small business in Louisiana, and businesses can advertise to a much wider market for a fraction of the cost of traditional media. But these benefits come with a dilemma: what to do about trademark infringement on the Internet. In a virtual world with no borders, what (and where) is the law? Download Full Article (PDF) Cite: 2002 Duke L. & Tech. Rev. 0009

By: Joseph Goodman Caspar Bowden (cb@fipr.org) is the author of a recent DLTR article, Closed Circuit Television for Inside Your Head: Blanket Traffic Data Retention and the EmergencyAnti-Terrorism Legislation. He is the Director of the Foundation for Information Policy Research (http://www.fipr.org), an independent non-profit think-tank that undertakes research on the interaction between information technology and society, technical developments with significant social impact, and public policy alternatives. He was formerly a consultant specializing in Internet security and e-commerce, senior researcher of an option-arbitrage trading firm, a financial strategist with Goldman Sachs, and chief algorithm designer for a virtual reality software house. We interviewed Mr. Bowden about combating terrorism in Europe and other issues related to European cyber-policy, such as the success of a European Internet and Information policy. Download Full Article (PDF) Cite: 2002 Duke L. & Tech. Rev. 0007

By: Kelly Donohue In the online world, where intellectual property rights can be violated with the simple click of a mouse, innovation sometimes finds itself engaged in a game of chicken with the law. Recently, online-photo-search engine Ditto.com played just such a game, taking their fight to the Ninth Circuit Court of Appeals. The Ninth Circuit’s holding protects Ditto.com’s use of copyrighted photos as transformative fair use. But the holding also addresses inline linking and framing, warning that they can violate copyright even in the face of a fair use. Download Full Article (PDF) Cite: 2002 Duke L. & Tech. Rev. 0006

By: Harry Mihet At first blush, the Copyright Clause and the First Amendment of the United States Constitution appear to serve conflicting interests and to exist in irrevocable tension. On one hand, the Copyright Clause grants authors “the exclusive Right to their respective Writings and Discoveries,” thereby prohibiting others from utilizing certain forms of expression. On the other hand, the First Amendment prohibits Congress from “abridging the freedom of speech” and expression. ;Thus, by simultaneously prohibiting the use of another’s expression and safeguarding expression, the two provisions appear to be on a constitutional collision course. Download Full Article (PDF) Cite: 2002 Duke L. & Tech. Rev. 0003

By: Kelly Donohue Efforts by leading record labels to fill the void they created by shutting down Napster led several to develop their own subscription online music service. The author of the following iBrief assesses the viability of those services in light of a Justice Department antitrust investigation into the practices of the labels in allegedly quashing smaller distributors and colluding to stifle competition, and considers the ramifications of an antitrust suit for both the major labels and their competitors. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0039

By: Ashley A. Johnson To what extent does Sony’s time-shifting fair use argument extend to recent innovations that make it easier for hackers use DVR technology to generate copies of protected material? The author assesses the potential liability of DVR manufacturers against the backdrop of traditional fair use doctrines. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0029