Law Commons^™

Everything Old Is New Again: Does The '.Sucks' Gtld Change The Regulatory Paradigm In North America?, Jacqueline D. Lipton

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In 2012, the Internet Corporation for Assigned Names and Numbers (“ICANN”) took the unprecedented step of opening up the generic Top Level Domain (“gTLD”) space for entities who wanted to run registries for any new alphanumeric string “to the right of the dot” in a domain name. After a number of years of vetting applications, the first round of new gTLDs was released in 2013, and those gTLDs began to come online shortly thereafter. One of the more contentious of these gTLDs was “.sucks” which came online in 2015. The original application for the “.sucks” registry was somewhat contentious with …

Antibiotic Resistance, Jessica D. Litman

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Ten years ago, when I wrote War Stories,' copyright lawyers were fighting over the question whether unlicensed personal, noncommercial copying, performance or display would be deemed copyright infringement. I described three strategies that lawyers for book publishers, record labels, and movie studios had deployed to try to assure that the question was answered the way they wanted it to be. First, copyright owners were labeling all unlicensed uses as "piracy" on the ground that any unlicensed use might undermine copyright owners' control. That epithet helped to obscure the difference between unlicensed uses that invaded defined statutory exclusive rights and other …

Taxing Facebook Code: Debugging The Tax Code And Software, Xuan-Thao Nguyen, Jeffrey A. Maine

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This article sets out to analyze both intellectual property laws and tax systems as applied to computer software. It analyzes software within intellectual property's established doctrinal framework, a difficult task due to the fact that software can encompass some combination of the traits of copyrights, trade dress, patents, and trade secrets. It then examines both the federal and state tax systems governing software. It shows that fitting software within current tax schemes presents unique challenges, as software contains both tangible and intangible elements, is subject to varying intellectual property protections, and can be delivered through various media. The article argues …

What Blogging Might Teach About Cybernorms, Jacqueline D. Lipton

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Since the dawn of the information age, scholars have debated the viability of regulating cyberspace. Early on, Professor Lawrence Lessig suggested that “code is law” online. Lessig and others also examined the respective regulatory functions of laws, code, market forces, and social norms. In recent years, with the rise of Web 2.0 interactive technologies, norms have taken center-stage as a regulatory modality online. The advantages of norms are that they can develop quickly by the communities that seek to enforce them, and they are not bound by geography. However, to date there has been scant literature dealing in any detail …

Bad Faith In Cyberspace: Grounding Domain Name Theory In Trademark, Property And Restitution, Jacqueline D. Lipton

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The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with others’ trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on …

A Winning Solution For Youtube And Utube? Corresponding Trademarks And Domain Name Sharing, Jacqueline D. Lipton

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In June of 2007, the United States District Court for the Northern District of Ohio ruled on a motion to dismiss various claims against the Youtube video-sharing service. The claimant was Universal Tube and Rollform Equipment Corp ("Universal"), a manufacturer of pipes and tubing products. Since 1996, Universal has used the domain name utube.com - phonetically the same as Youtube's domain name, youtube.com. Youtube.com was registered in 2005 and gained almost-immediate popularity as a video-sharing website. As a result, Universal experienced excessive web traffic by Internet users looking for youtube.com and mistakenly typing utube.com into their web browsers. Universal's servers …

Billowing White Goo, Jessica D. Litman

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The title of this symposium is the question: "Fair Use: "Incredibly Shrinking" or Extraordinarily Expanding?" I'd argue that the answer to the question is "no." Fair use isn't doing either. The size of the fair use footprint has stayed remarkably constant over the past 30 or even 50 years. What has expanded, extraordinarily, is the size of rights granted by the copyright law. It may seem as if fair use is either expanding or shrinking, because the greater reach of copyright has made a bunch of uses potentially fair that weren't even potentially infringing 50 years ago. In order to …

Taxing The New Intellectual Property Right, Xuan-Thao Nguyen, Jeffrey A. Maine

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Current, albeit arbitrary, rules exist governing the tax treatment of traditional forms of intellectual property, such as patents, trade secrets, copyrights, trademarks, and trade names. While tax principles exist for these traditional intellectual property and intangible rights, specific tax rules do not exist for new intellectual property rights, such as domain names, that are emerging with the arrival of global electronic commerce transactions on the Internet. This article explores the proper tax treatment of domain name registration and acquisition costs, addressing these parallel questions? Are domain names merely variations of traditional forms of intellectual property and other intangible rights to …

The Narratives Of Cyberspace Law (Or, Learning From Casablanca), Michael J. Madison

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Cyberspace scholars have wrestled extensively with the question of the "right" metaphorical approach to the Internet, in order to guide legal and policy decisions. Literary theorists have wrestled with the perception that cyberspace undermines conventional ideas about narrative. This Essay suggests that each group could learn from the other. Cyberspace tells a better story than literary scholars believe, and the lawyers should pay more attention to the narrative attributes of cyberspace. To illustrate the argument, the Essay proposes a specific story framework for cyberspace: the film Casablanca.

Icann's "Uniform Dispute Resolution Policy"- Causes And (Partial) Cures, A. Michael Froomkin

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No abstract provided.

Should It Be A Free For All? The Challenge Of Extending Trade Dress Protection To The Look And Feel Of Web Sites, Xuan-Thao Nguyen

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In the e-commerce world, a company's web site becomes the primary communication center with the customer. The web site is where the company displays products, presents marketing materials, and provides sales and post-sales support. Increasingly, companies are spending valuable resources to build and maintain their web sites. With the rapid change in web technology, many web sites now feature more than just ordinary text. Color, clipart, graphics, designs, animations, and sounds are now part of the overall appearance of web sites. Yet copying an image from a web site is just one click away. What protection is available to the …

Shifting The Paradigm In E-Commerce: Move Over Inherently Distinctive Trademarks, The E-Brand, I-Brand And Generic Domain Names Ascending To Power?, Xuan-Thao Nguyen

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“What's in a name!” laments Juliet at her Shakespearean balcony. Four hundred years later, in the world of e-commerce, Juliet's question would be “What's in a domain name?” After spending all of the Montague's wealth, Romeo might be able to respond, “Call me but love.com.” The price tag for some generic domain names cost a small fortune: Sex.com for $250 million, Business.com for $7.5 million, Broadband.com for $6 million, Loans.com for $3 million, Flu.com for $1.4 million, and Bingo.com for $1.1 million.

In 1995, Procter and Gamble registered hundreds of generic domain names and offered them for sale at auction …

The Empire Strikes Back, A. Michael Froomkin

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No abstract provided.