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

Copyrights & Trademarks Leave a comment

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 – works to which the copyright owner cannot be located or identified – 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 – 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

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Beta-Testing the “Particular Machine”: The Machine-or-Transformation Test in Peril and Its Impact on Cloud Computing

Patents & Technology Leave a comment

By: Richard M. Lee This Issue Brief examines recent cases addressing the patent eligibility of computer-implemented method claims and their implications for the development of cloud computing technologies. Despite the Supreme Court’s refusal to endorse the machine-or-transformation test as the exclusive patent eligibility inquiry, lower courts have continued to invalidate method claims using a stringent “particular machine” requirement alongside the requisite abstract ideas analysis. This Issue Brief argues that 1) post-Bilski v. Kappos cases have failed to elucidate what constitutes a particular machine for computer-implemented methods; 2) in light of substantial variance among Federal Circuit judges’ Section 101 jurisprudence, the application of the particular machine requirement has become subject to a high degree of panel-dependency, such that its relevance for analyzing software method claims has come under question; 3) notwithstanding the unease expressed by practitioners and scholars for the future of cloud computing patents, the courts’ hardening stance toward computer-implemented method claims will do little to deter patenting in the cloud computing context. Instead, clouds delivering platform and software services will remain capable of satisfying the particular machine requirement and supporting patent eligibility, especially given the possible dilution of the particular machine requirement itself. Download Full Article (PDF) Cite: 11

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Cloud Computing, Clickwrap Agreements, and Limitation on Liability Clauses: A Perfect Storm?

eCommerce Leave a comment

By: Timothy J. Calloway “To the cloud!” trumpets a commercial by Microsoft, whose aim is to herd customers, and their checkbooks, into the cloud computing fold. But Microsoft, and other cloud providers like Amazon and Google, might inadvertently be doing just the opposite. It is not for lack of security or even early adopter apprehension that potential customers might turn away. Nor is it a lack of fantastic, cost-saving applications of cloud technology. Rather, the problem is buried deep within these tech giants’ clickwrap agreements—the ones that customers rarely read and to which they invariably click “I Agree.” Hidden in these agreements are limitation on liability clauses, veritable safe harbors for cloud providers and submerged icebergs for the unwary cloud customer. Often, these clauses wholly abrogate a customer’s right to recover damages for his provider’s wrongful acts. In other words, a provider could purposefully delete its customers’ data or shut down its users’ websites, leaving the aggrieved customers with no cause of action and no right to recover. While limitation on liability clauses are not new to the contract law vernacular, their inclusion in cloud computing agreements is particularly troublesome. The amount of potential liability that customers may waive through

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

Copyrights & Trademarks Leave a comment

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

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“Less Is More”: New Property Paradigm in the Information Age?

Patents & Technology

By: Aarthi S. Anand Before striking down laws increasing copyright’s domain, judges and legislators are asking for evidence that information products will be created even if copyright protection is not provided. The future of Internet technology depends on locating this evidence in time to limit expansive copyright. United States law, however, already protects information products under copyright. Hence, this counterfactual evidence that judges request cannot be generated in the United States. In response to the demand for data, American legal scholars have attempted to mine evidence from open software and other non-commercial endeavors on the Internet. However, these endeavors have been dismissed as exceptions or “cults,” unrelated to mainstream industry needs. This Article, for the first time, provides evidence of growth in the commercial software industry without intellectual property protection. Between 1993 and 2010, the software industry in India emerged as the fastest growing in the world, accounting for $76 billion in revenues by 2010. In the same time period, the software industry in India remained unaffected by changes in intellectual property protection for software. By demonstrating industry growth without strong intellectual property protections, the Indian data fills the critical gap in American literature. Moreover, the comparative data from India

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Open Source Innovation, Patent Injunctions, and the Public Interest

Patents & Technology

By: James Boyle This Article explores the difficulties that high technology markets pose for patent law and, in particular, for patent injunctions. It then outlines the ways in which “open source innovation” is unusually vulnerable to patent injunctions. It argues that courts can recognize this vulnerability, and respond to the particular competitive and innovative benefits of open source innovation, by flexibly applying the Supreme Court’s ruling in eBay v. MercExchange. Having dealt with the lamentable failure of the International Trade Commission to exercise a similar flexibility in its own patent jurisprudence, despite statutory and constitutional provisions that counsel otherwise, the Article concludes with some recommendations for reform. Download Full Article (PDF) Cite: 11 Duke L. & Tech. Rev. 30

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Ensuring an Impartial Jury in the Age of Social Media

Media & Communications

By: Amy J. St. Eve & Michael A. Zuckerman The explosive growth of social networking has placed enormous pressure on one of the most fundamental of American institutions—the impartial jury. Through social networking services like Facebook and Twitter, jurors have committed significant and often high-profile acts of misconduct. Just recently, the Arkansas Supreme Court reversed a death sentence because a juror Tweeted about the case during deliberations. In light of the significant risks to a fair trial that arise when jurors communicate through social media during trial, judges must be vigilant in monitoring for potential outside influences and in deterring misconduct. In this Article, we present informal survey data from actual jurors on their use of social networking during trial. We discuss the rise of web-based social networks like Facebook and Twitter, and the concerns that arise when jurors communicate about a case through social media before returning a verdict. After surveying how courts have responded to jurors’ social media use, we describe the results of the informal survey. The results support a growing consensus in the legal profession that courts should frequently, as a matter of course, instruct jurors not to use social media to communicate about trial. Although

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The “25% Rule” for Patent Infringement Damages After Uniloc

Patents & Technology

By: Roy J. Epstein The 2011 decision by the Federal Circuit in Uniloc v. Microsoft properly condemned the “25% Rule,” which bases a reasonable royalty on 25% of an infringer’s profits. Nonetheless, at least one proponent of the Rule continues to argue that the Rule is fundamentally valid and should remain in use. This article analyzes the historical development of the Rule, its conceptual basis, its application in actual cases, and relevant insights from other recent Federal Circuit cases. Each analysis shows fundamental problems and contradictions that demonstrate the Rule can never be a reliable patent damages methodology. There is no reason to change the conclusion in Uniloc. Download Full Article (PDF) Cite: 2012 Duke L. & Tech. Rev. 001

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The Path of Internet Law: An Annotated Guide to Legal Landmarks

International

By: Michael L. Rustad & Diane D’Angelo The evolution of the Internet has forever changed the legal landscape. The Internet is the world’s largest marketplace, copy machine, and instrumentality for committing crimes, torts, and infringing intellectual property. Justice Holmes’s classic essay on the path of the law drew upon six centuries of case reports and statutes. In less than twenty-five years, Internet law has created new legal dilemmas and challenges in accommodating new information technologies. Part I is a brief timeline of Internet case law and statutory developments for Internet-related intellectual property (IP) law. Part II describes some of the ways in which the Internet is redirecting the path of IP in a globalized information-based economy. Our broader point is that every branch of substantive and procedural law is adapting to the digital world. Part III is the functional equivalent of a GPS for locating the latest U.S. and foreign law resources to help lawyers, policymakers, academics and law students lost in cyberspace. Download Full Article (PDF) Cite: 2011 Duke L. & Tech. Rev. 012

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Copyright for Couture

Copyrights & Trademarks

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

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