Law Commons^™

Rembrandt’S Missing Piece: Ai Art And The Fallacies Of Copyright Law, Eleni Polymenopoulou

Washington Journal of Law, Technology & Arts

This article discusses contemporary problems related to Artificial Intelligence (AI), law and the visual arts. It suggests that the fallacies of copyright law are already visible in legal conundrums raised by AI in the creative sector. These include, for instance, the lack of uniformity in relation to creations’ copyrightability, the massive scale of copyright infringement affecting visual artists and the creative industry, and the difficulties in implementing media regulation and cyber-regulation. The deeply cherished ‘human authorship’ criterion that was sustained recently by a US Federal Appeals Court in Thaler, in particular, is a short-term solution to the legal challenges …

Making Room For Big Data: Web Scraping And An Affirmative Right To Access Publicly Available Information Online, Amber Zamora

The Journal of Business, Entrepreneurship & the Law

This paper will explore the legality of web scraping through the lens of recent litigation between web scraper hiQ Labs and the online professional networking platform, LinkedIn. First, the paper will study the background of web scraping litigation, some challenges courts face in issuing consistent verdicts, and the most common claims companies make against web scrapers. Then the paper will address three of the most common claims and identify court motivations and limitations within the doctrines. The first claims are those arising from the federal Computer Fraud and Abuse Act (CFAA). Next, the paper will investigate copyright claims and defenses …

Paypal Is New Money: Extending Secondary Copyright Liability Safe Harbors To Online Payment Processors, Erika Douglas

Michigan Telecommunications & Technology Law Review

The Digital Millennium Copyright Act (DMCA) has shaped the Internet as we know it. This legislation shields online service providers from secondary copyright infringement liability in exchange for takedown of infringing content of their users. Yet online payment processors, the backbone of $300 billion in U.S. e-commerce, are completely outside of the DMCA’s protection. This Article uses PayPal, the most popular online payment company in the U.S., to illustrate the growing risk of secondary liability for payment processors. First it looks at jurisprudence that expands secondary copyright liability online, and explains how it might be applied to PayPal. Then it …

Internet Tv: (Hopefully) Coming To A Computer Screen Near You, Nicholas Pellegrino

Seton Hall Circuit Review

No abstract provided.

A Panoptic Approach To Information Policy: Utilizing A More Balanced Theory Of Property In Order To Ensure The Existence Of A Prodigious Public Domain, Christine D. Galbraith

Journal of Intellectual Property Law

No abstract provided.

Walk A Mile In The Shoes Of A Copyright Troll: Analyzing And Overcoming The Joinder Issue In Bittorrent Lawsuits, Kristina Unanyan

The Journal of Business, Entrepreneurship & the Law

This Comment analyzes the issues surrounding joinder of copyright infringers who use BitTorrent, explores how joinder can be used and limited to create a more viable solution for copyright holders and consumers, as well as, supplements the sparse regulations that encompass joinder to create a rule that accommodates this technological era. Part II explains Copyright Law and the procedural aspects of a copyright infringement suit and joinder of defendants. Part III delves into the history of peer-to-peer (P2P) file-sharing lawsuits and provides an illustration of where case law rests today regarding P2P networks. Part IV describes the BitTorrent network and …

Avoiding The Next Napster: Copyright Infringement And Investor Liability In The Age Of User Generated Content, Truan Savage

Michigan Business & Entrepreneurial Law Review

Rapid developments in digital technology over the past quarter century have made it easier than ever for people to create and instantly share content. These developments have served as the basis for countless innovations and have spawned some of today’s largest and most profitable companies. As content creation and distribution continues to evolve, businesses seek new ways to profit from these technological innovations. But while businesses continue to develop around new methods of content distribution, the law of copyright, which generally aims to encourage the creation of content, has been slow to adapt. This era of modern technological innovation thus …

Disruption And Deference, Olivier Sylvain

Maryland Law Review

No abstract provided.

Don't Tread On Me: The Need For An Alternate Dispute Resolution Process For The Creators And Uploaders Of User-Generated Content, Scott A. Tarbell

Pepperdine Dispute Resolution Law Journal

This article analyzes the current position that UGC site users find themselves in relation to their ability to dispute copyright infringement claims. Part II discusses the introduction and purpose of the DMCA along with the statutory provisions and case law relevant to the subject. Part III covers the underlying issues encumbering the current appeals process for the OSPs as dictated under the DMCA, and why changes are required. Part IV advocates for a new dispute process, one in favor of online alternative dispute resolution (OADR), and explains how this new paradigm would produce more equitable results for UGC site users. …

Determining The Location Of Injury For New York's Long Arm Statute In An Infringement Claim, Stefan Josephs

Touro Law Review

No abstract provided.

Tollbooths And Newsstands On The Information Superhighway, Brad A. Greenberg

Michigan Telecommunications & Technology Law Review

Countering the perception that speech limitations affecting distribution necessarily reduce access to information, this Essay proffers that copyright expansions actually can increase access and thereby serve important copyright and First Amendment values. In doing so, this discussion contributes to the growing literature and two recent Supreme Court opinions discussing whether copyright law and First Amendment interests can coexist.

Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett

Michigan Telecommunications & Technology Law Review

A number of methods currently exist or are being developed to determine where Internet users are located geographically when they access a particular webpage. Yet regardless of the precautions taken by website operators to limit the locations from which they allow access, it is likely that users will find ways to gain access to restricted content. Should the evasion of geolocation constitute circumvention of access controls so that § 1201 of the Digital Millennium Copyright Act ("DMCA") applies? Because location data can properly be considered personally identifiable information ("PII"), this Note argues that § 1201 should not apply absent a …

Whose Social Network Account: A Trade Secret Approach To Allocating Rights, Zoe Argento

Michigan Telecommunications & Technology Law Review

Who has the superior right to a social network account? This is the question in a growing number of disputes between employers and workers over social network accounts. The problem has no clear legal precedent. Although the disputes implicate rights under trademark, copyright, and privacy law, these legal paradigms fail to address the core issue. At base, disputes over social network accounts are disputes over the right to access the people, sometimes numbering in the tens of thousands, who follow an account. This Article evaluates the problem from the perspective of the public interest in social network use, particularly the …

Argh, Matey! The Faux-Pas Of The Sopa (Stop Online Piracy Act), Anna S. Han

University of Michigan Journal of Law Reform Caveat

Earlier, I posted about a network neutrality case, Verizon v. FCC, which could have far-reaching consequences for the Internet industry. Another concerted attempt to regulate the Internet, disguised in the form of a piracy protection bill, recently came before the House Judiciary Committee and garnered widespread disapproval. Representative Lamar Smith (R-TX) and a bipartisan group of twelve co-sponsors introduced the “Stop Online Piracy Act” (“SOPA”) on October 26, 2011, which punishes websites that are accused of facilitating copyright infringement. Although touted by its supporters as a weapon against foreign sites that steal and sell American inventions, SOPA is problematic because …

Fighting The First Sale Doctrine: Strategies For A Struggling Film Industry, Sage Vanden Heuvel

Michigan Telecommunications & Technology Law Review

The first sale doctrine, codified at 17 U.S.C. § 109, grants the owners of a copy of a copyrighted work the right to sell, rent, or lease that copy without permission from the copyright owner. This doctrine, first endorsed by the Supreme Court in Bobbs-Merrill Co. v. Straus, was established at a time when the owner of a good necessarily had to forego possession in order to sell or lease the item to another.[...] The changes in technology and industry over the past two decades threaten to upend this balance. In today's digital world, an owner of a copy of …

Toward A Trips Truce, Patricia L. Judd

Michigan Journal of International Law

The World Trade Organization's (WTO's) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS or Agreement), now over fifteen years old, regulates a marketplace characterized by extraordinary dynamism, influenced by the constant forces of globalization and technological evolution. Attempts to regulate this market raise natural, persistent questions concerning the Agreement's ability to serve its respective constituencies and adapt to change. The Agreement operates in the midst of an age-old dynamic pitting developing and developed countries against one another, especially when it comes to domestic enforcement against piracy and counterfeiting-a dynamic in which TRIPS has been criticized as a one-sided instrument. …

Databases And Dynamism, Michal Shur-Ofry

University of Michigan Journal of Law Reform

Databases are generally perceived in legal scholarship as static warehouses, storing up valuable facts and information. Accordingly, scholarship on copyright protection of databases typically concentrates on the social need to access their content. This Article seeks to shift the focus of the debate, arguing that the copyrightdatabases debate is not merely a static "access to information" story. Instead, it is a dynamic story of relations, hierarchies, and interactions between pieces of information, determined by database creators. It is also a story of patterns, categories, selections, and taxonomies that are often invisible to the naked eye, but that influence our perceptions …

Information Wars And The Challenges Of Content Protection In Digital Contexts, Raymond T. Nimmer

Vanderbilt Journal of Entertainment & Technology Law

We are in the midst of a fundamental conflict in law and policy between those who favor maintaining and expanding copyright and related rights in the digital context ("rights enhancers"), and those who favor letting rights atrophy ("rights restrictors'). This Article argues that strong intellectual property rights are essential. At minimum, they are important to support creativity in contexts where the creation, collection, or distribution of the content requires substantial investment of time and resources. The case for allowing creators' rights to weaken is both untested and structurally suspect. Copyright law must construct a balance that fully supports creative activity …

Everything In Its Right Place: Social Cooperation And Artist Compensation, Leah Belsky, Byron Kahr, Max Berkelhammer, Yochai Benkler

Michigan Telecommunications & Technology Law Review

The music industry's crisis response to the Internet has been the primary driver of U.S. copyright policy for over a decade. The core institutional response has been to increase the scope of copyright and the use of litigation, prosecution, and technical control mechanisms for its enforcement. The assumption driving these efforts has been that without heavily-enforced copyright, artists will not be able to make a living from their art. Throughout this period artists have been experimenting with approaches that do not rely on technological or legal enforcement, but on constructing web-based business models that engage fans and rely on voluntary …

Downloading Personhood: A Hegelian Theory Of Copyright Law, Karla M. O'Regan

Canadian Journal of Law and Technology

This article will examine these responses, identifying the competing interests at work in both traditional copyright schemes and contemporary Internet-based criticisms, and put forth a theory of copyright law capable of ad- dressing the needs of these rival interests in an advanced technological era.

Part I delineates some of the more prominent theories copyright scholars have offered in response to the “IP-IT crisis.” Part II attempts to identify the source of these problems by first examining conventional justifications for copyright and the competing interests inherently at work in its conception. Part III identifies three specific factors I argue are particularly …

"Transformative" User-Generated Content In Copyright Law: Infringing Derivative Works Or Fair Use?, Mary W.S. Wong

Vanderbilt Journal of Entertainment & Technology Law

In the United States, the line between the type and level of transformation required for a copyrightable derivative work and that required to constitute fair use has not been drawn clearly. With the rise of user-generated content, this question (which arises in two distinct copyright contexts) has become even more important. At the same time, copyright law has generally shied away from defining authorship as a legal concept, preferring instead to develop and rely on the related (but not identical) concept of originality. This has resulted in a low copyrightability threshold that does not adequately account for the fact that …

Mass Culture And The Culture Of The Masses: A Manifesto For User-Generated Rights, Debora Halbert

Vanderbilt Journal of Entertainment & Technology Law

User-generated content is a term used to describe the division between culture produced as a commodity for consumption and the culture that is generated by people acting as creative beings without any market incentive. While under current copyright law all types of creativity are protected, the laws of copyright exist primarily to protect commercial forms of expression, not the non-commercial ones that form the foundation of user-generated content. The disconnect between what current copyright law protects and how most people create generates tensions that must be addressed. This Article presents an argument for broader protection of all creative work, including …

User-Generated Content And Virtual Worlds, Greg Lastowka

Vanderbilt Journal of Entertainment & Technology Law

Many legal commentators have claimed that virtual worlds owe their popularity to their focus on user-generated content and user creativity. While this is true in part and authorial freedom may draw consumers to virtual worlds, user-generated content can also pose risks to virtual world business from both an aesthetic and legal perspective. A significant tension exists between permitting participants to create content freely and building a successful virtual environment. In some instances, user-generated content can overwhelm virtual worlds. The future of user-generated content in virtual worlds is not clear, given the significant practical and legal problems that accompany user-generated content.

Copyright And Youtube: Pirate's Playground Or Fair Use Forum?, Kurt Hunt

Michigan Telecommunications & Technology Law Review

The entertainment industry has a history of framing new technology as piracy that threatens its very existence, regardless of the potential benefits of the technology or the legal limits of copyright rights. In the case of YouTube, copyright owners' attempts to retain content control negatively impact the public's ability to discuss culture in an online world. This implicates the basic policy behind fair use: to prevent copyright law from "stifl[ing] the very creativity which that law is designed to foster." The internet has become a powerful medium for expression. It is a vital tool in today's world for sharing original …

An International-Comparative Perspective On Peer-To-Peer File-Sharing And Third Party Liability In Copyright Law, Guy Pessach

Vanderbilt Journal of Transnational Law

In the last decade, the phenomenon of peer-to-peer file-sharing and its various legal aspects have been dealt with extensively by legal scholarship. The purpose of this Article is to take a closer inspection of several particular legal aspects that are related to peer-to-peer file-sharing as a comparative, social, economic, and cultural phenomenon. The Article begins by providing critical comparative analysis of distinct paradigms that different legal systems have offered regarding the question of third party liability for copyright infringements that occur through peer-to-peer file-sharing platforms. The Article then presents three focal policy considerations that should serve as copyright law's compass …

From Safe Harbor To Choppy Waters: Youtube, The Digital Millennium Copyright Act,And A Much Needed Change Of Course, Lauren B. Patten

Vanderbilt Journal of Entertainment & Technology Law

YouTube.com, named Time magazine's "Invention of the Year" for 2006 and widely recognized as the most-visited video site on the Internet, has changed the face of online entertainment. With the site's acquisition by Google in October 2006, the possibilities for YouTube's growth became truly endless. However, there is a darker side to the story of the Internet sensation, one that is grounded in its potential liability for copyright infringement. The issue is that many of the most-viewed and most-popular videos on the site are copyrighted. The copyright owners of those popular clips want their works back and are suing YouTube …

Three Reactions To Mgm V. Grokster, Pamela Samuelson

Michigan Telecommunications & Technology Law Review

It was prescient of the Michigan Telecommunications and Technology Law Review to have organized a conference to discuss the Supreme Court's decision in Metro-Goldwyn-Mayer, Inc. v. Grokster, Inc. As the articles in this issue reveal, commentators have had somewhat mixed reactions to the Grokster decision. Perhaps I am the most mixed (or mixed up) about Grokster among its commentators, for I have had not just one but three reactions to the Grokster decision. My first reaction was to question whether MGM and its co-plaintiffs really won the Grokster case, or at least won it in the way they had hoped. …

File Sharing, Copyright, And The Optimal Production Of Music, Gerald R. Faulhaber

Michigan Telecommunications & Technology Law Review

Much economic, political, judicial and legal attention has been showered on the significant changes currently taking place within the music production and distribution business forced by the use of the Internet for both file sharing (of unauthorized copyrighted material) and more recent online (legal) music distribution. The strong demand for music, coupled with the low cost of distributing illegal copies via peer-to-peer (P2P) systems, is unraveling the business model by which music has traditionally been created, developed, and distributed. Application of traditional copyright law has been ineffective in stopping the loss of business in the traditional channels. Producers have implemented …

The Half-Fairness Of Google's Plan To Make The World's Collection Of Books Searchable, Steven Hetcher

Michigan Telecommunications & Technology Law Review

Google's major new initiative is to undertake the task of digitizing the world's collection of books so as to make them searchable. The very idea is audacious, but what is more so is that Google plans to copy without first seeking the permission of the owners of these works. Google Print would make available what is, by conventional measures at least, the highest grade of information--books produced by millions of the world's leading scholars. This is in stark contrast to the inconsistent quality spectrum one encounters through other online sources such as peer-to-peer networks and blogs, where there currently exists …

Intelligent Agents: Authors, Makers, And Owners Of Computer-Generated Works In Canadian Copyright Law, Rex M. Shoyama

Canadian Journal of Law and Technology

The central objective of this article is to propose a clarification of copyright law as applied to works created by intelligent agents. In Part I, the concepts of artificial intelligence and intelligent agents are introduced. Part II identifies the challenges that are presented to the tests of originality and authorship in the application of copyright to works generated by intelligent agents. It is argued that works created by intelligent agents may meet the tests of originality and authorship. It is also argued that the con- cepts of ‘‘author’’, ‘‘owner’’, and ‘‘maker’’ are distinct from one another in Canadian copyright law. …