Intellectual Property Law Commons^™

Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to …

When Real People Become Fictional: The Collision Of Trademark, Copyright, And Publicity Rights In Online Stories About Celebrities, Stacey M. Lantagne

Journal of Law, Technology, & the Internet

"Fanficion is frequently defined as the writing of fiction involving the characters or setting of someone else’s creation. However, there is a subset of fanfiction that is known as Real Person Fiction, or RPF. This subset writes stories not about other people’s fictional creations but about real people, whether they be hockey players or movie stars, and it has long been the scene of heated debate in the fan community. Some fans who readily and enthusiastically engage with fanfiction draw strict “squick” lines about RPF and call it “creepy” and “disturbing.” "Perhaps for this reason, scholars have paid little attention …

Pirates Of The Australian Election, Matthew Rimmer

Matthew Rimmer

“Pirate parties” have proliferated across Europe and North America in the past decade, championing issues such as intellectual property (IP), freedom of speech, and the protection of privacy and anonymity.This year, the movement hit Australian shores: The Pirate Party Australia was officially registered by the Australian Electoral Commission in January 2013. (You can read its principles and platform here.)“More than ever before, there is a necessity in Australia for a party that holds empowerment, participation, free culture and openness as its central tenets”, Pirate Party founder Rodney Serkowski said in a press release announcing the group’s successful registration. Their first …

Streaming While Teaching: The Legality Of Using Person Streaming Video Accounts For The Classroom, Jonathan I. Ezor

Scholarly Works

Educators are constantly seeking new sources of relevant material to illustrate doctrinal and practice topics. With the growing understanding of students’ different learning styles, as well as the expansion of high-speed network connections and large displays in the classroom, streaming video has begun gaining popularity as an educational tool. Films, television programs, and real-time and archived legislative and court sessions may provide examples (both positive and negative) to enhance pedagogy. One increasingly common source for streaming content is a commercial video provider such as Netflix, Amazon, and Hulu. Even where such providers do not offer educational or institutional services, educators …

The Fight For The Future: How People Defeated Hollywood And Saved The Internet—For Now, Edward Lee

Edward Lee

No abstract provided.

An Elegy For Greg Ham: Copyright Law, The Kookaburra Case, And Remix Culture, Matthew Rimmer

Matthew Rimmer

The ‘Kookaburra’ case was a tragic and controversial copyright dispute, highlighting the need for copyright law reform by the Australian Parliament. In the Kookaburra case, a copyright action was brought by Larrikin Records against Men at Work’s song ‘Down Under’, alleging copyright infringement of the ‘Kookaburra’ song composed by Marion Sinclair. The dispute raised a host of doctrinal matters. There was disquiet over the length of the copyright term. There were fierce contests as to the copyright ownership of the ‘Kookaburra’ song. The litigation raised questions about copyright infringement and substantiality – particularly in relation to musical works. The ‘Kookaburra’ …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Remix Culture, Matthew Rimmer

Matthew Rimmer

RECOMMENDATIONSIn its issues paper, the Australian Law Reform Commission asks a number of inter-connected questions about transformative use, fair dealing, and fair use:Transformative useQuestion 14. How are copyright materials being used in transformative and collaborative ways—for example, in ‘sampling’, ‘remixes’ and ‘mashups’. For what purposes—for example, commercial purposes, in creating cultural works or as individual self-expression?Question 15. Should the use of copyright materials in transformative uses be more freely permitted? Should the Copyright Act 1968 (Cth) be amended to provide that transformative use does not constitute an infringement of copyright? If so, how should such an exception be framed?Question 16. …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: 3d Printing, Matthew Rimmer

Matthew Rimmer

RECOMMENDATIONSThe Australian Law Reform Commission poses a number of questions on the defence of fair use in Copyright and the Digital Economy.Question 52. Should the Copyright Act 1968 (Cth) be amended to include a broad, flexible exception? If so, how should this exception be framed? For example, should such an exception be based on ‘fairness’, ‘reasonableness’ or something else? Question 53. Should such a new exception replace all or some existing exceptions or should it be in addition to existing exceptions?The case study of 3D printing highlights how Australia would benefit from a defence of fair use.Recommendation 1 The narrow, …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Disability Rights, Matthew Rimmer Dr

Matthew Rimmer

RECOMMENDATIONS

Recommendation 1 The Australian Government should take legislative action to implement Article 30 (3) of the United Nations Convention on the Rights of Persons with Disabilities 2006, which provides that ‘States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials’. This will involve revising the Copyright Act 1968 (Cth) – and addressing any direct or indirect disability discrimination.

Recommendation 2 The Australian Law Reform Commission should consider revising the Copyright Act 1968 …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: International Law, Matthew Rimmer Dr

Matthew Rimmer

The Australian Law Reform Commission poses a question in respect of international law in the issues paper on Copyright and the Digital Economy.Question 1. The ALRC is interested in evidence of how Australia’s copyright law is affecting participation in the digital economy. For example, is there evidence about how copyright law: a. affects the ability of creators to earn a living, including through access to new revenue streams and new digital goods and services; b. affects the introduction of new or innovative business models; c. imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Consumer Rights, Matthew Rimmer

Matthew Rimmer

RECOMMENDATIONSThe Australian Law Reform Commission poses a number of inter-related questions about copyright law, personal use, consumer rights, and cloud computing:Cloud computingQuestion 5. Is Australian copyright law impeding the development or delivery of cloud computing services?Question 6. Should exceptions in the Copyright Act 1968 (Cth) be amended, or new exceptions created, to account for new cloud computing services, and if so, how?Copying for private useQuestion 7. Should the copying of legally acquired copyright material, including broadcast material, for private and domestic use be more freely permitted?Question 8. The format shifting exceptions in the Copyright Act 1968 (Cth) allow users to …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Moral Rights, Matthew Rimmer

Matthew Rimmer

RECOMMENDATIONSThe Australian Law Reform Commission poses a question in respect of moral rights in the issues paper on Copyright and the Digital Economy.Question 18. The Copyright Act 1968 (Cth) provides authors with three ‘moral rights’: a right of attribution; a right against false attribution; and a right of integrity. What amendments to provisions of the Act dealing with moral rights may be desirable to respond to new exceptions allowing transformative or collaborative uses of copyright material?In response, I would emphasize a number of themes in respect of moral rights.Recommendation 1 There is a need for the Australian Law Reform Commission …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: The Copyright Term And Orphan Works, Matthew Rimmer

Matthew Rimmer

RECOMMENDATIONSThe Australian Law Reform Commission asks a number of questions in respect of copyright law and orphan works:Question 23. How does the legal treatment of orphan works affect the use, access to and dissemination of copyright works in Australia?Question 24. Should the Copyright Act 1968 (Cth) be amended to create a new exception or collective licensing scheme for use of orphan works? How should such an exception or collective licensing scheme be framed?In response, I would make the following recommendations on copyright term and copyright duration; old copyright works; orphan works; and copyfraud:Recommendation 1 The Australian Government should withdraw from …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: The Progress Of Science, Matthew Rimmer

Matthew Rimmer

RECOMMENDATIONSThe Australian Law Reform Commission poses a number of questions about copyright law and databases in its issues paper on Copyright and the Digital Economy:Data and text miningQuestion 25. Are uses of data and text mining tools being impeded by the Copyright Act 1968 (Cth)? What evidence, if any, is there of the value of data mining to the digital economy?Question 26. Should the Copyright Act 1968 (Cth) be amended to provide for an exception for the use of copyright material for text, data mining and other analytical software? If so, how should this exception be framed?Question 27. Are there …

It Pricing: Copyright Law, Consumer Rights, And Competition Policy. A Submission To The House Of Representatives Standing Committee On Infrastructure And Communications Inquiry Into It Pricing, Matthew Rimmer

Matthew Rimmer

Justice Lionel Murphy‘Copyright is being used to manipulate the Australian market.’Justice Michael Kirby‘In effect, and apparently intentionally, those [technological] restrictions reduce global market competition. They inhibit rights ordinarily acquired by Australian owners of chattels to use and adapt the same, once acquired, to their advantage and for their use as they see fit.’US Attorney-General Eric Holder‘As a result of this alleged conspiracy, we believe that consumers paid millions of dollars more for some of the most popular titles.’Justice Denise Coates‘There can be no denying the importance of books and authors in the quest for human knowledge and creative expression, and …

This Sporting Life: Copyright Law And Consumer Rights, Matthew Rimmer

Matthew Rimmer

When too much sport is not enoughH.G. Nelson and Roy SlavenSport occupies an anomalous position under Australian copyright law. A footballer like Gary Ablett Junior is not an author under copyright law. A sporting spectacle like the AFL Grand Final or the State of Origin is not a dramatic work. Sporting events are protected somewhat peripherally as television broadcasts under Australian copyright law. Nonetheless, sports organizations have engaged in special pleading in respect of intellectual property law. This has been particularly evident in the litigation between Optus, the National Rugby League, and the Australian Football League.

A Submission To The Joint Standing Committee On Treaties On The Anti-Counterfeiting Trade Agreement 2011 (#Acta), Matthew Rimmer

Matthew Rimmer

“If Hollywood could order intellectual property laws for Christmas, what would they look like? This is pretty close.” David Fewer“While European and American IP maximalists have pushed for TRIPS-Plus provisions in FTAs and bilateral agreements, they are now pushing for TRIPS-Plus-Plus protections in these various forums.” Susan Sell“ACTA is a threat to the future of a free and open Internet.” Alexander Furnas“Implementing the agreement could open a Pandora's box of potential human rights violations.” Amnesty International.“I will not take part in this masquerade.” Kader Arif, Rapporteur for the Anti-Counterfeiting Trade Agreement 2011 in the European ParliamentExecutive SummaryAs an independent scholar …

From Betamax To Youtube: How Sony Corporation Of America V. Universal City Studios, Inc. Could Still Be A Standard For New Technology, Veronica Corsaro

Federal Communications Law Journal

Internet technological innovations, particularly the development of Peer-to-Peer ("P2P") networks and the proliferation of user-generated content sites, have introduced considerable challenges for the application of copyright law and infringement liability. The response from the courts and Congress has been mixed, with severe legal curtails being applied to P2P technology while usergenerated content sites have been afforded a level of protection against infringement claims as part of the Digital Millennium Copyright Act's section 512 "safe harbor" provisions. However, these provisions have raised concerns about the issue of secondary copyright liability, a matter that has still been left undefined. This Note will …

Digital Originality, Edward Lee

All Faculty Scholarship

This Article examines the doctrine of originality in U.S. copyright law and proposes a reconfigured, three-part test that can better analyze issues of first impression involving works created with new digital technologies. The proposed test, encapsulated by the concept of digital originality, provides much needed guidance to courts to address the increasing complexities of digital creations in the twenty-first century.

A Fair Use Project For Australia: Copyright Law And Creative Freedom, Matthew Rimmer

Matthew Rimmer

This essay provides a critical assessment of the Fair Use Project based at the Stanford Center for Internet and Society. In evaluating the efficacy of the Fair Use Project, it is worthwhile considering the litigation that the group has been involved in, and evaluating its performance. Part 1 outlines the history of the Stanford Center for Internet and Society, and the aims and objectives of the Fair Use Project. Part 2 considers the litigation in Shloss v. Sweeney over a biography concerning Lucia Joyce, the daughter of the avant-garde literary great, James Joyce. Part 3 examines the dispute over the …

Thwack!! Take That, User-Generated Content!: Marvel Enterprises V. Ncsoft, Carl Michael Szabo

Federal Communications Law Journal

Comic-book heroes show us how to be valiant, how to fight for those less fortunate, and, in some circumstances, how to combat those who break the law. Such is the situation in the case of Marvel Enterprises, Inc. v. NCSofl Corp., a battle between user-generated content and the copyright violations that resulted.

While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed, could endanger the protection afforded to authors. Federal and state suits have …

The Sound Of Money: Securing Copyright, Royalties, And Creative "Progress" In The Digital Music Revolution, Armen Boyajian

Federal Communications Law Journal

Academics and popular critics alike want to distill, reform, or altogether destroy U.S. copyright law as we know it. Much of this stems from animosity toward the old-guard record industry's alleged practices of overcharging consumers, underpaying royalties to artists, and suing teenagers and grandmas. But what those calling for reform all seem to neglect is a tiny but inevitable fact: for the first time in history, composers and recording artists can keep their copyrights.

Tangible media sales are being replaced by P2P file sharing, retail downloads, and streaming Webcasts. Digital technologies and wireless networks have opened prime channels for music …

Media Futures: A Review Essay On 'The Future Of Reputation', 'Tv Futures', And 'The Future Of The Internet And How To Stop It', Prometheus, Vol. 27 (3), P. 267-279., Matthew Rimmer

Matthew Rimmer

This review essay considers three recent books, which have explored the legal dimensions of new media. In contrast to the unbridled exuberance of Time Magazine, this series of legal works displays an anxious trepidation about the legal ramifications associated with the rise of social networking services. In his tour de force, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, Daniel Solove considers the implications of social networking services, such as Facebook and YouTube, for the legal protection of reputation under privacy law and defamation law. Andrew Kenyon’s edited collection, TV Futures: Digital Television Policy in Australia, explores …

Wikipedia, Collective Authorship, And The Politics Of Knowledge, Matthew Rimmer

Matthew Rimmer

This chapter considers the legal ramifications of Wikipedia, and other online media, such as the Encyclopedia of Life. Nathaniel Tkacz (2007) has observed: 'Wikipedia is an ideal entry-point from which to approach the shifting character of knowledge in contemporary society.' He observes: 'Scholarship on Wikipedia from computer science, history, philosophy, pedagogy and media studies has moved beyond speculation regarding its considerable potential, to the task of interpreting - and potentially intervening in - the significance of Wikipedia's impact' (Tkacz 2007). After an introduction, Part II considers the evolution and development of Wikipedia, and the legal troubles that have attended it. …

The Riaa, The Dmca, And The Forgotten Few Webcasters: A Call For Change In Digital Copyright Royalties, Kellen Myers

Federal Communications Law Journal

Emerging webcasting technology is playing an increasing role in modem society. The ease of use of webcast technology has brought about an increased user base as well as an increased viability for small webcasting businesses. However, the mix-tape genre of independent Internet radio has been financially and legislatively abused as a forerunner of rapidly advancing digital technology and concerns over protecting copyright royalties. This Note argues for a revision of the DMCA to provide a middle ground between protecting copyrighted works and allowing the continued existence of Internet radio.

Capturing Ideas: Copyright And The Law Of First Possession, Abraham Drassinower

Cleveland State Law Review

Part II of this paper, entitled “Wish and Deed,” sets forth an account of the law of first possession through an analysis of the classic case of Pierson v. Post. Part III, entitled “Idea and Expression,” briefly sets forth an account of the idea/expression dichotomy in copyright law through discussion of the classic case of Nichols v. Universal Pictures Corporation. On that basis, Part III unfolds a correspondence between animus and factum in property law and idea and expression in copyright law. Part IV, entitled “Things and Speech,” suggests through discussion of the classic case of Feist that central doctrines …

Thieves In Cyberspace: Examining Music Piracy And Copyright Law Deficiencies In Russia As It Enters The Digital Age, Michael F. Mertens

ExpressO

The article discusses broadly the music piracy problem in Russia, the current state of Russia’s copyright laws, and how its laws and problems compare to the U.S. and the rest of the world. In particular, the article focuses on music piracy through the Internet and how it has exploded in Russia. One of the websites I target is the infamous Allofmp3.com, which has attracted a large amount of U.S. attention in recent times by consumers as well as lawmakers. The article analyzes the legislative and enforcement deficiencies in Russia that led to the enormous problem with traditional music piracy and …

Copyright Law, The Production Of Creative Works And Cultural Growth In Cyberspace , Alina Ng

ExpressO

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, …

Copyright Law, The Production Of Creative Works And Cultural Growth In Cyberspace , Alina Ng

ExpressO

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, …

Staying Afloat In The Internet Stream: How To Keep Web Radio From Drowning In Digital Copyright Royalties, Emily D. Harwood

Federal Communications Law Journal

In the 1990's, the development of "streaming" technology allowed webcasters to begin broadcasting music on the Internet. The public took advantage of a plethora of free media players, and the number of web-based radio stations soared. However, a crippling dispute over broadcast rates left the viability of this technology in doubt. This Note criticizes current policies that curtail radio streaming by providing harsh financial restrictions on webcasters. In looking to the future, this Note argues that Congress should extend licensing exemptions to cover those Internet stations most like their AM/FM counterparts who do not have to pay additional fees.