Internet Law Commons^™

Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman

All Faculty Scholarship

While the benchmark of trademark infringement traditionally has been a demonstration that consumers are likely to be confused by the use of a similar or identical trademark to identify the goods or services of another, a court-created doctrine called initial interest confusion allows liability for trademark infringement solely on the basis that a consumer might initially be interested, attracted, or distracted by a competitor's, or even a non-competitor's, product or service. Initial interest confusion is being used with increasing frequency, especially on the Internet, to shut down speech critical of trademark holders and their products and services, to prevent comparative …

Intellectual Property Rights In Digital Media: A Comparative Analysis Of Legal Protection, Technological Measures And New Business Models Under E.U. And U.S. Law, Nicola Lucchi

ExpressO

The production of digital content is a phenomenon which has completely changed the conditions of access to knowledge. Within this framework it becomes even more important to find and to formulate a new settlement for intellectual property rights balancing contrasted rights. Owners of the old technology and policy makers have found two different solutions and remedies for intellectual property rights: legal and technological. When both remedies work together any rights that a consumer may have under copyright law could be replaced by a unilaterally defined contractual term and condition. To balance this inequity this article analyses different solutions under U.S. …

L'Affaire Huntsman C. Soderbergh Ou Le Droit D'Expurger Les Films, René Pépin

Canadian Journal of Law and Technology

Deux éléments nous motivent. D’abord, comme on le devine, la technologie évolue à un rythme rapide en ce domaine. On n’en est plus au temps où les films étaient produits unique- ment sur une véritable pellicule de plastique qu’un censeur pouvait insérer dans une machine qui lui permettait littéralement de couper des parties indésirables et de recoller les embouts. L’informatique a envahi ce domaine. Il y a maintenant des logiciels sophistiqués qui agissent comme interface entre un disque DVD et l’écran, permettant au consommateur de choisir lui-même les séquences qui seront enlevées dans un film. On comprend que ceci pose …

The Constitutional Failing Of The Anticybersquatting Act, Ned Snow

Faculty Publications

Eminent domain and thought control are occurring in cyberspace. Through the Anticybersquatting Consumer Protection Act (ACPA), the government transfers domain names from domain-name owners to private parties based on the owners' bad-faith intent. The owners receive no just compensation. The private parties who are recipients of the domain names are trademark holders whose trademarks correspond with the domain names. Often the trademark holders have no property rights in those domain names: trademark law only allows mark holders to exclude others from making commercial use of their marks; it does not allow mark holders to reserve the marks for their own …

Genetic Use Restriction (Or Terminator) Technologies (Gurts) In Agricultural Biotechnology: The Limits Of Technological Alternatives To Intellectual Property, Chidi Oguamanam

Canadian Journal of Law and Technology

This article examines the adequacy of terminator technology as a potential substitute for traditional intellectual property. It acknowledges that the technology provides a stronger protection and reward mechanism than that offered by the traditional intellectual property rights regime. However, terminator technology or any other technology for that matter, is outside the pantheon of intellectual property regimes. Fundamentally, terminator is a technological answer to the quest by private sector interests to improve appropriability of returns on investments in agrobiotech. It potentially represents a panacea to the long standing industry struggle over the profitability of private research in agrobiotech and the need …

Reconsidering The Dmca, R. Polk Wagner

All Faculty Scholarship

patents, Law and economics, prosecution history estoppel, doctrine of equivalents, ex ante, ex post, default rules, PTO, Federal Circuit, patent prosecution, patent litigation, intellectual property, patent reform, patent administration, patent office

A Chose By Any Other Name: Domain Names As A Security Interest, Andrew B. Cochran

Canadian Journal of Law and Technology

There has been increasing study of the issues involved in using intellectual property as a security interest, but little corresponding consideration of domain names. The ascendancy in value of domain names to modern business increases their usefulness as a security interest to lenders and borrowers alike. Their use in this respect appears not to be weighed down by two of the most difficult issues facing intellectual property, namely conflicting jurisdiction between federal statutory interests and provincial property interests, together with establishing more readily acceptable methods of valuation. However, there is ambiguity about the actual form of ownership interest involved with …

The Hegemony Of The Copyright Treatise, Ann Bartow

Law Faculty Scholarship

This Article asserts that major conceptions about the appropriate structure, texture, and span of copyright protections and privileges have been fashioned by copyright treatises, particularly the various editions of Nimmer on Copyright. Copyright treatises function in concert with the machinations of Congress, the courts, and custom, but their role is not often scrutinized.

Because copyright treatises typically do a far better job than Congress or the courts of explicating copyright law in straightforward and accessible language, such treatises can not only communicate the copyright law, but also influence its development and direction. Policy makers no doubt understand that content owners …

Defending Cyberproperty, Patricia L. Bellia

Journal Articles

This Article explores how the law should treat legal claims by owners of Internet-connected computer systems to enjoin unwanted uses of their systems. Over the last few years, this question has become increasingly urgent and controversial, as system owners have sought protection from unsolicited commercial e-mail and from robots that extract data from Web servers for competitive purposes. In the late 1990s and early 2000s, courts utilizing a wide range of legal doctrines upheld claims by network resource owners to prevent unwanted access to their computer networks. The vast weight of legal scholarship has voiced strong opposition to these cyberproperty …

Open Source, Open Arms: An Open-Ended Question, Alana Maurushat

Canadian Journal of Law and Technology

This paper is structured to address several aspects and challenges to the open source movement. Beginning with an outline of the historical and cultural components of the open source movement, the paper will move on to explore the economic and philosophical underpinnings of intellectual property. It will be demonstrated that open source finds itself uniquely situated within these theories and doctrines. The questions that open source poses for intellectual property will then be examined. My arguments will stem from the general premise that open source is threatened by three mechanisms: the uncertainty of the validity of open source licenses, potentially …

The Internationalization Of Intellectual Property: New Challenges From The Very Old And The Very New, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Intellectual property concepts embodied in international treaties and national laws date back to the eighteenth century. Many fundamental concepts (originality in copyright law; confusion in trademark law; novelty or inventiveness in patent law) vary from one country's national legislation to another. Yet, many critics of the intellectual property system recognize that solutions to the problems, ranging from database protection to the Internet, should ideally be the same worldwide. In today's globalized economy, it makes sense to adopt rules to protect that take account of the laws and practices of other nations and of the work of international organizations. Protecting only …

Current Developments In Cyberspace, Eric Easton

All Faculty Scholarship

No abstract provided.

Introduction: From Sheet Music To Mp3 Files—A Brief Perspective On Napster, Harold R. Weinberg

Law Faculty Scholarly Articles

The Napster case is the current cause celebre of the digital age. The story has color. It involves music-sharing technology invented by an eighteen-year-old college dropout whose high school classmates nicknamed him "The Napster" on account of his perpetually kinky hair. The story has drama. Depending on your perspective, it pits rapacious big music companies against poor and hardworking students who just want to enjoy some tunes; or it pits creative and industrious music companies seeking a fair return on their invested effort, time, and money against greedy and irreverent music thieves. And the case has importance. Music maybe intellectual …

The Death Of Cyberspace, Lawrence Lessig

Washington and Lee Law Review

No abstract provided.

Domain Names, Globalization, And Internet Governance, Marshall Leaffer

Indiana Journal of Global Legal Studies

No abstract provided.

Internet Infoglut And Invisible Ink: Spamdexing Search Engines With Meta Tags, Ira Nathenson

Ira Steven Nathenson

This Article addresses 'spamdexing,' namely, the practice of stuffing invisible keywords into webpages in order to try to get more favorable listings with search engines. For instance, some website owners will stuff the trademarks of competitors into a webpage’s code, particularly by using 'meta tags,' indexing keywords that can be hidden in a webpage’s source code. Although meta tags are not typically viewed by users, the code can be read by search engines, with the result that webpages may be improperly boosted in search engine rankings. Such practices can confuse the public and have also spurred trademark lawsuits. But the …