Intellectual Property Law Commons^™

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. …

Material Vulnerabilities: Data Privacy, Corporate Information Security And Securities Regulation, Andrea M. Matwyshyn

ExpressO

This article undertakes a normative and empirical legal inquiry into the manner information security vulnerabilities are being addressed through law and in the marketplace. Specifically, this article questions the current legislative paradigm for information security regulation by presenting a critique grounded in information security and cryptography theory. Consequently, this article advocates shifting our regulatory approach to a process-based security paradigm that focuses on improving security of our system as a whole. Finally, this article argues that in order to accomplish this shift with least disruption to current legal and economic processes, expanding an existing set of well-functioning legal structures is …

The Law Of Unintended Consequences: The Digital Millennium Copyright Act And Interoperability, Jacqueline Lipton

Washington and Lee Law Review

The Digital Millennium Copyright Act (DMCA) has been criticized for many reasons, including its impact on the fair use defense to copyright infringement, and its potential to chill the free exchange of scientific, technical, and educational information. Law professors and special interest groups have opposed elements of the DMCA from its inception and continue to lobby for reform. One of the more recent concerns about the DMCA involves the incorporation of copyrightable software code into tangible goods for purposes related to the functionality of those goods. Some manufacturers of such products recently have attempted to use the DMCA to prevent …

Yours For Keeps: Mgm V. Grokster, 23 J. Marshall J. Computer & Info. L. 209 (2005), Max Stul Oppenheimer

UIC John Marshall Journal of Information Technology & Privacy Law

Millions of people download billions of music files over the Internet, using peer-to-peer ("P2P") services such as Grokster, StreamCast, Morpheus, and Kazaa. This practice has been challenged as violative of copyright and, it has been argued, the magnitude of copyright violations facilitated by P2P services justifies banning the services entirely. This argument has been based on the assumption that most transfers over P2P services violate copyright. The starting point for this discussion is the recent decision of the United States Supreme Court to grant the certiorari petition of Metro-Goldwyn-Mayer Studios et al. to review the Ninth Circuit decision in MGM …

"Electronic Voting Rights And The Dmca: Another Blast From The Digital Pirates Or A Final Wake Up Call For Reform?", 23 J. Marshall J. Computer & Info. L. 533 (2005), Doris E. Long

UIC John Marshall Journal of Information Technology & Privacy Law

Electronic voting machines are the new version of pirated music. Like digital music, electronic voting was designed to make voting rights easily available to the masses. However, technology has once again demonstrated how easy it is to circumvent a good idea through better “hacker” technology. In reality, any electronic voting software can be hacked no matter how good the encryption technology protecting it. The issue is not creating a fool-proof anti-circumvention system – an impossible task – but creating the necessary digital safeguards to make circumvention difficult, to make security breaches more readily detectable, and to provide back-up systems to …

General Public License 3.0: Hacking The Free Software Movement's Constitution, Robert W. Gomulkiewicz

Articles

The General Public License (GPL) enshrines a software hacker’s freedom to use code in important ways. Hackers often refer to the GPL as the free software movement’s “constitution.” Richard Stallman, founder of the Free Software Foundation (FSF) wrote the most recent version of the GPL, version 2.0, back in 1991. For a constitution, a fourteen-year-old document is young, but for a license, it is quite old. The revision process is finally underway, led by Stallman and Eben Moglen, FSF’s general counsel.

The release of GPL version 3.0 will be momentous for many reasons, but one reason stands out: The GPL …

A Quick And Inexpensive System For Resolving Peer-To-Peer Copyright Disputes, Mark A. Lemley, R. Anthony Reese

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Sean Sullivan Kumar

Richmond Journal of Law & Technology

I hope you enjoy the second issue of Volume XI of the Richmond Journal of Law & Technology. The Editorial Board and Staff worked diligently with four outstanding authors to prepare this issue. We are proud to present timely articles by two professors, a practitioner, and the winner of the Journal’s staff casenote competition.

Leveraging Knowledge Assets: Can Law Reform Help?, Margaret Ann Wilkinson, Mark Perry

Canadian Journal of Law and Technology

This paper asks whether there is a need for law-makers to aid in the efficient transition to a new knowledge-based economic and social environment through the use of intellectual property devices. The use of such devices was effective in assisting with the transition to an industrial society that, combined with developments in commercial law and secured transactions, further fuelled economic growth in Canada. Can these disparate areas of law be brought together to provide opportunities for the growth of knowledge-based business? The Law Commission of Canada instigated a two-part investigation into these questions. The investigation culminated in the Commission's report …

"Tpms": A Perfect Storm For Consumers: Replies To Professor Geist, Barry Sookman

Canadian Journal of Law and Technology

This article has its origins in an article written by Professor Michael Geist and published in the Toronto Star entitled ‘‘‘TPMs’: A perfect storm for consumers’’. Following the publication of the article, John Gregory made a posting to the e-commerce listserv he moderates asking if anyone had any comments to the article. I responded on February 13, 2005 with a reply to John’s request. Professor Geist replied to my comments on February 17, 2005. On March 9, 2005 I posted a further reply to Professor Geist. The article set out below is based substantially on my two postings to John …

New Federal And Provincial Personal Information Protection Legislation And Its Impact On Physicians And Public Hospitals, Evguania Prokopieva

Canadian Journal of Law and Technology

The focus of this article is to examine the implications of the new federal and Ontario personal data protection legislation for physicians and public hospitals. This article also inquires into whether the new legislation will contribute to the protection of patient privacy. By ‘‘physician’’ I mean a doctor in a broad sense – i.e., ‘‘a person who has been educated, trained, and licensed to practice the art and science of medicine’’. This will include family doctors, paediatricians, psychiatrists, surgeons, and other medical doctors covered by the Regulated Health Professions Act. By the term ‘‘public hospitals’’ I will refer to not-for-profit …

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 …

Whazup With The Whois?, Sheldon Burshtein

Canadian Journal of Law and Technology

The WHOIS is a database directory of domain names and relevant contact information maintained by each top-level domain (TLD) registry, which lists all relevant registrant contact information for each domain name registration. Through its contracts, the Internet Corporation for Assigned Names and Numbers (ICANN) requires registries and registrars to collect and display technical information and contact details for all registrants. The WHOIS is an important component of the domain name system (DNS). The WHOIS is used for a wide variety of purposes by registries, registrars, registrants, law enforcement authorities, consumers, and the general public. The WHOIS may enable identification of …

A Review Of Canadian Radiocommunications Law Around "Jammers", Tyson Macauley

Canadian Journal of Law and Technology

This comment argues that the Radiocommunications Act should be amended to relax the prohibition on specific types of ‘‘smart’’ jamming in the Industry Science Medicine (ISM) bands. Specifically, the legislation requires increased flexibility and granularity to accom- modate new wireless technologies in the ISM bands — particularly wireless LAN (WLAN) technologies like IEEEE 802.11b/IEEE 802.11g (WiFi), and IEEE 802.11a (henceforth collectively know as ‘‘ISM radios’’).

The availability of cheap, mass-produced ISM radios hardware and the proliferation of applications using the ISM spectrum bands of 2.4Ghz and 5Ghz present a variety of security and privacy concerns that cannot be effectively addressed …

Fundamentals Of Information Technology By Sunny Handa (Markham: Lexisnexis Canada Inc., 2004), Barbara Darby

Canadian Journal of Law and Technology

In the early 1990s, I purchased my first stereo with a CD player. I found myself trapped in a conversation with someone who tried to convince me that it was utter folly not to buy a turntable, because CD technology simply couldn’t replicate the ‘‘warmth’’ of vinyl. Had I only Handa’s book to hand, I could have provided a straight- forward and understandable explanation for why my records were well enough left in my parents’ basement; although ‘‘digitization . . . fails to record all characteristics of analog data, even at the highest finite sampling rate . . . Complete …

Copyright Law And Digital Millennium Copyright Act, Neda Ballard Panula

Honors Capstones

Capstone submitted as a graduation requirement for the BSU Honors Program.

Thinking Outside The Pandora's Box: Why The Dmca Is Unconstitutional Under Article I §8 Of The U.S. Constitution, Joshua L. Schwartz

ExpressO

No abstract provided.

Vol. Ix, Tab 46 - Ex. 58 - Deposition Of Rose Hagan From Geico V. Google (Google Managing Counsel Trademarks), Rose Hagan

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Vol. Ix, Tab 41 - Ex. I - Hagan Deposition From Geico (Google Managing Counsel - Trademarks), Rose Hagan

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Seventeen Famous Economists Weigh In On Copyright: The Role Of Theory, Empirics, And Network Effects, Stan Liebowitz, Stephen Margolis

ExpressO

The case of Eldred v. Ashcroft, which sought to have the Copyright Term Extension Act (CTEA, aka Sonny Bono Copyright Act) declared unconstitutional, was recently decided by the Supreme Court. A remarkable group of seventeen economists including five Noble laureates, representing a wide spectrum of opinion in economics, submitted an amicus curie brief in support of Eldred. The economists condemned CTEA on the grounds that the revenues earned during the extension are so heavily discounted that they have almost no value, while the extended protection of aged works creates immediate monopoly deadweight losses and increases the costs of creating new …

Virtual Markets For Virtual Goods: The Mirror Image Of Digital Copyright?, Peter D. Eckersley

ExpressO

The Internet and Copyright Law are particularly ill-suited to each other. One is designed to give as much information as possible to everyone who wants it; the other allows authors, artists and publishers to earn money by restricting the distribution of works made out of information. The beneficiaries of copyright law are lobbying for the re-design of computers and the Internet to instate "content control" and "digital rights management" (DRM). These technologies are intended to make copyright workable again by re-imposing limits on access to information goods, but they carry high direct and indirect social costs.

One alternative, which has …

The Law Of Privacy In Canada (Student Edition) By Barbara A. Mcisaac, Rick Shields, Kris Klein (Toronto: Thomson Carswell, 2004), John D. Gregory

Canadian Journal of Law and Technology

To help lawyers advise their clients on their rights and obligations in this complex and novel field, the various legal publishers have offered an array of guides and textbooks analyzing the law of privacy. Thomson/Carswell turned for its book to the national law firm of McCarthy Tétrault. Three McCarthy lawyers (Barbara McIsaac, Rick Shields, and Kris Klein) are listed as authors of The Law of Privacy in Canada, and several others have contributed significant parts of the text, and they have done a creditable job in pulling it all together. It seems to be the only thorough and up-to-date analysis …

Three Years Under The Pipeda: A Disappointing Beginning, Christopher Berzins

Canadian Journal of Law and Technology

As of January 1, 2004, after a three-year phase-in period, the Personal Information Protection and Electronic Documents Act (PIPEDA) came fully into force. Although considerable uncertainty currently prevails due to unanticipated events such as the resignation and replacement of Commissioner George Radwanski and the late constitutional challenge by Quebec, there is now sufficient experience with the legislation to begin to assess how the PIPEDA is working. It is also a timely juncture to do so with the extension of the legislation to the provincially regulated private sector.

Privacy Of Genetic Information In Canada: A Brief Examination Of The Legal And Ethical Tools That Should Frame Canada's Regulatory Response, Stephen Orr

Canadian Journal of Law and Technology

This article investigates the legal and ethical tools that should inform Canada's regulation of the privacy of genetic information. We are the first generation faced with resolving the unique challenges presented by genetic information. Unfortunately, the patchwork of instruments that could regulate genetic information in Canada is insufficient. The prospect of Canadians increasingly generating genetic information without a satisfactory structure for protecting the information is rather alarming. It is therefore important that we commit to reexamining regulations regarding genetic information. Different loci of governance will likely be required. Canada should look to international law and comparative law for inspiration regarding …

No Lego, Yes Logo: The Federal Court Of Appeal Protects Innovation In Kirkbi Ag And Lego Canada Inc. V. Ritvik Holdings Inc., Sean Robertson

Canadian Journal of Law and Technology

This article will discuss the case at the trial and appellate levels. It will specifically address the underlying policy debate between the majority and the dissenting decisions at the Federal Court of Appeal. The author will compare this debate to two similar international cases involving Lego’s infamous intellectual property litigation. With this recent finding in the 40-year-old saga of international case law surrounding Lego’s trade-mark enforcement strategy, the Appeal Division of the Federal Court of Canada joins the ranks of several other courts that have similarly excluded protection for Lego based on the doctrine of functionality. The comment concludes with …

Video Surveillance, Evidence And Pipeda: A Comment On Ferenszy V. Mci Medical Clinic, Anne Uteck

Canadian Journal of Law and Technology

One of the most common uses of surveillance is in the area of evidence gathering for investigation by litigators. Private investigators have long been retained for this purpose, and law enforcement officers routinely utilize surveillance devices to assist in the prosecution of a crime. The admissibility of video surveillance evidence obtained by private and government investigators is obviously not a new issue. What has come to the fore- front is the application of the Personal Information Protection and Electronic Documents Act in the context of video surveillance evidence, and its impact on civil litigators. Privacy interests inherent in the collection, …

Case Comment: Society Of Composers, Authors And Music Publishers Of Canada V. Canadian Association Of Internet Service Providers, Barry Sookman

Canadian Journal of Law and Technology

The exponential growth of the Internet has raised serious issues related to liability for copyright infringement. Who should compensate authors and publishers for the use of their works? What activities constitute infringement? Are Internet intermediaries such as Internet service providers (ISPs) liable for infringement when they provide connectivity to subscribers, when they provide hosting services, or when they use caching technologies? Where does infringement occur? Is the scope of the Copyright Act limited to acts of infringement that occur wholly within Canada or does the Act apply to acts that take place partly in Canada and partly outside of Canada? …

Vol. Viii, Tab 39 - Ex. 1 - Email From Lepe Bismarck, Lepe Bismarck

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Essay, Digital Bowdlerizing: Removing The Naughty Bytes, Llewellyn Joseph Gibbons

ExpressO

Unlike Dr. Bowdler, who republished the works of Shakespeare with the naughty bits removed, the modern digital Bowdlerizer deletes offensive content from digital works in a variety of ways. This Essay will analyze the technologies used by the modern Bowdlerizer to determine when, if, and which technologies make copies in violation of the copyright owner’s § 106(1) right to control reproduction or make derivative copies of a preexisting work that may infringe the copyright owner’s 17 U.S.C. § 106(2) right to authorize the creation of derivative works. These technologies not only support militant prudery, but they also may add new …

Vol. Ix, Tab 41 - Ex 6 - Google Three Ad Policy Changes, Google

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?