Intellectual Property Law Commons^™

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 …

Is The Acpa A Safe Haven For Trademark Infringers? - Rethinking The Unilateral Application Of The Lanham Act, 22 J. Marshall J. Computer & Info. L. 655 (2004), Jinku Hwang

UIC John Marshall Journal of Information Technology & Privacy Law

The Anticybersquatting Consumer Protection Act (ACPA) was enacted in 1999 as a response to international disputes over Internet domain names because according to the Congress’ point of view, courts could not successfully protected American businesses in cases where nothing more that the registration of a trademark or its variation in a domain name had occurred. This article analyzes recent court decisions regarding domain name disputes after the enactment of ACPA focusing on reverse domain name hijacking in international, trademark related and gTLD disputes. The author argues that the in rem jurisdiction provided by the ACPA and the consequent extraterritorial effect …

"Don't Let The Sun Go Down On Me:" An In-Depth Look At Opportunistic Business Method Patent Licensing And A Proposed Solution To Allow Small-Defendant Business Method Users To Sing A Happier Tune, 37 J. Marshall L. Rev. 1359 (2004), Andrea Lynn Evensen

UIC Law Review

No abstract provided.

Balancing Individual Privacy Rights And The Rights Of Trademark Owners In Access To The Whois, 38 J. Marshall L. Rev. 357 (2004), Jeffrey Stephen Sobek

UIC Law Review

No abstract provided.

Corinthians Soccer Loses By Decision In Second Round Play-Off Over Corinthians.Com In Sallen V. Corinthians Licenciamentos Ltda, Clark D. Robertson

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Following The Right Lead: Gutnick And The Dance Of Internet Jurisdiction, Mary Paterson

Canadian Journal of Law and Technology

As improving methods of travel and communication facilitated the shift from an agrarian to an industrial society, the common law courts increasingly faced interjurisdictional disputes. Although British paternalism dominated early cases in which courts assumed jurisdiction over people, property, and actions in distant lands, these cases and the imperial attitudes informing them were slowly replaced by more modest jurisdictional assertions based on a sense of comity. The shift from an industrial society to an information-based society and the simultaneous growth of a global infrastructure based on satellite, telephone, cable, and cellular technologies have stretched jurisdictional doctrines in new ways, calling …

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Edwin E. Wallis Iii

Richmond Journal of Law & Technology

On behalf of the 2003-2004 Editorial Board, I would like to welcome you to the third issue of the Richmond Journal of Law & Technology’s 2003-2004 publication term! This issue includes three articles covering the AOL Instant Messenger restriction before the FCC, online alternative dispute resolution, and a proposal for regulating Internet gambling.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Edwin E. Wallis Iii

Richmond Journal of Law & Technology

On behalf of the 2003-2004 Editorial Board, it is my pleasure to welcome you to the fth and nal issue of the Richmond Journal of Law & Technology’s 2003-2004 publication term! This issue represents another “ first” for the Journal – the world’s first Annual Survey dedicated to e-Discovery law. For more information on this Issue, I invite you to read the Letter from the Annual Survey Editor and the article, A Topic Both Timelyand Timeless, prepared by Professor James Gibson.

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

Richmond Journal of Law & Technology

On behalf of the Editorial Board and Staff, I would like to welcome you to Volume XI of the Richmond Journal of Law & Technology. As we look ahead to the coming year, and particularly to our tenth anniversary this April, we would like to thank you for your continued support. The Richmond Journal of Law & Technology would not be what it is today without quality submissions from practitioners, positive feedback from our readers, and the diligent efforts of so many who have worked to make the Journal a success over the past ten years. In this first issue, …

Arrgh! Hollywood Targets Internet Piracy, Anna E. Engelman, Dale A. Scott

Richmond Journal of Law & Technology

As technology advances, the threat of rampant and unprecedented theft of digital media continues to grow. The music industry has already faced, and continues to face, this threat, but has largely failed in defending musicians’ intellectual property.

A Topic Both Timely And Timeless, James Gibson

Richmond Journal of Law & Technology

The courtroom is the crucible of the law, where the fire of litigation tests the intellectual and political forces that inform social policy. Discovery - the process by which litigants identify and assemble their evidence - provides the fuel for the fire. Indeed, not long ago most of the evidence that the discovery process produced was, quite literally, flammable: boxes upon boxes of paper documents.

The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg

Faculty Scholarship

If you inquired among the general public, “What does U.S. copyright law protect?” many people might start by grumbling that it overprotects piggish record companies. Calming slightly, they might next reply that copyright protects authors' rights and that among those is the right to be recognized as the author of the work. Indeed, few interests seem as fundamentally intuitive as that authorship credit should be given where credit is due. For example, in prelapsarian, pre-Napster days, the act of copyright infringement in which a youthful individual most likely engaged was probably plagiarism: there, lifting another author's text may have been …

Foreign Investment Restrictions As Industrial Policy: The Case Of Canadian Telecommunications, Robert Crandall, Hal Singer

Canadian Journal of Law and Technology

We assess the economic harms that would accrue if Canada were to adopt asymmetric rules of foreign ownership for incumbent carriers and entrants. We explain the current Canadian regulatory climate surrounding foreign investment in Canadian telecommunications. Competition in the telecommunications industry is generally robust, which suggests that rules aimed at favouring entrants are not necessary. Moreover, Canadian entrants are equally capable of attracting foreign capital as Canadian incumbents, which suggests that foreign investment rules aimed at favouring entrants are especially unwise.

Next, we review the U.S. attempt to stimulate competition in local telecommunications markets through an analogous form of asymmetrical …

Turning Worms: Some Thoughts On Liabilities For Spreading Computer Infections, Richard Owens

Canadian Journal of Law and Technology

Two aspects of the virus/worm liability problem are of particular note. The first is how tightly the Internet binds together many possible defendants; those who build and run it, those who populate it with increasingly complex electronic commerce Web sites, those who provide terminal software, those who send electronic mails, those who design its security algorithms, those who insure it, and those who hack it, amongst others.

The second aspect is how speculative such a review is. Little case law pertains. Even the language of the law(what does it really mean when we assess liability on the basis of a …

Les Consommateurs Et Les Clubs Vidéo Ont-Ils Le Droit De Modifier Les Films À Leur Guise?, René Pépin

Canadian Journal of Law and Technology

Dans un premier temps, nous voulons étudier le litige en cours. Même si aucune décision sur le fond n’est susceptible d’être rendue à court terme, nous pouvons scruter les prétentions des parties et voir l’état du droit aux États-Unis sur ce sujet. Nous examinerons ensuite comment cette problématique serait traitée au Canada.

Et c’est ici que la question soulevée dans le litige revêt tout son intérêt, car elle met en jeu des notions fonda- mentales en matière de droit d’auteur. On devra ainsi se demander si le fait pour une personne ou une entreprise de retrancher des séquences représentant quelques …

Law As Film: Representing Justice In The Age Of Moving Images, Shulamit Almog, Ely Aharonson

Canadian Journal of Law and Technology

Two main theses are presented here. The first is that there is a conceptual resemblance between the ways in which messages are transmitted in the courtroom and the ways in which they are transmitted in the cinema. The second is that the evolution of legal procedure is being influenced by developments taking place in visual culture generally and film specifically. Taken together, these theses lead to the conclusion that the development of a theory of ‘‘law-as-film’’ can provide insights into the contemporary practice of law that might otherwise be overlooked.

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 …

Whose Music Is It Anyway? How We Came To View Musical Expression As A Form Of Property, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

Many participants in the music industry consider unauthorized transmissions of music files over the Internet to be theft of their property. Many Internet users who exchange music files reject this characterization. Prompted by the dispute over unauthorized music distribution, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing music making in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some …

The (New?) Right Of Making Available To The Public, Jane C. Ginsburg

Faculty Scholarship

The Berne Convention 1971 Paris Act covered the right of communication to the public incompletely and imperfectly through a tangle of occasionally redundant or self-contradictory provisions on "public performance," "communication to the public," "public communication," "broadcasting," and other forms of transmission. Worse, the scope of rights depended on the nature of the work, with musical and dramatic works receiving the broadest protection, and images the least; literary works, especially those adapted into cinematographic works, lying somewhere in between. The 1996 WIPO Copyright Treaty rationalized and synthesized protection by establishing full coverage of the communication right for all protected works of …

Freeing The Mind: Free Software And The Death Of Proprietary Culture, Eben Moglen

Faculty Scholarship

The subject matter we are going to talk about is variously named and thewords have some resonances of importance. I am going to use the phrase "Free Software" to describe this material, and I am going to suggest to you that the choice of words is relevant. We are talking not merely about a form of production or a system of industrial relations, but also about the beginning of a social movement with specific political goals, which will characterize not only the production of software in the twenty-first century, but the production and distribution of culture generally.

My purpose this …

Does Your Website Put You At Risk?—Liability Issues In Using Third Party Content: Global Perspectives, James Maxeiner

All Faculty Scholarship

This presentation examines some of the new laws that affect the liability risks faced by online service providers that rely in part or in whole on information posted or otherwise provided by third parties, both with respect to issues associated with liability for defamatory information and to infringement issues.

In this presentation we are going to consider first the most important areas of liability for distribution of third party content. These laws pre-date the Internet and continue in force. We will then consider liability for third party content under the most important of those laws. Finally, we will consider how …

Four Common Misconceptions About Copyright Piracy, Peter K. Yu

Faculty Scholarship

Copyright piracy is one of the most difficult, yet important, transnational problems in the twenty-first century. Although legal literature has discussed copyright piracy extensively, commentators rarely offer a "grand unified theory" on this global problem. Rather, they give nuanced analyses, discussing the many aspects of the problem-political, social, economic, cultural, and historical.

This nuanced discussion, however, is missing in the current public debate. To capture the readers' emotion and to generate support for proposed legislative and executive actions, the debate often oversimplifies the complicated picture by overexagerrating a particular aspect of the piracy problem or by offering an abbreviated, easy-to-understand, …

Intellectual Property Laws In Harmony With Nafta: The Courts As Mediators Between The Global And The Local, Myra J. Tawfik

Canadian Journal of Law and Technology

This paper will argue that domestic courts can pro- vide a forum within which to mediate between these two extremes, to reconcile the ‘‘global’’ and the ‘‘local’’ — but that the courts themselves must adapt to meet the challenges that globalization places upon them. More specifically, the paper begins by setting out a framework for understanding harmonization of laws under NAFTA as one that encourages rather than eliminates diversity of law. The paper then studies the prevailing approaches to statutory interpretation that Canadian courts, most especially the Supreme Court of Canada and the Federal Court of Appeal, have been employing …

Computer Law By George S. Takach (Toronto: Irwin Law Inc., 2000, 2nd Edition), David T.S. Fraser

Canadian Journal of Law and Technology

No abstract provided.

Banning Bans On New Reproductive And Novel Genetic Technologies, Matthew Herder

Canadian Journal of Law and Technology

Commentators argue that statutory prohibitions with the force of the criminal law should not be used to regulate new reproductive technologies (NRTs) and novel genetic technologies (NGTs). Bill C-13, the Assisted Human Reproduction Act, however, codifies 10 criminal bans. This paper considers the merits of the various arguments levied against Bill C-13, and the corollary claim that only a "non-prohibitive" model of legislation befits NRTs and NGTs. Three types of arguments are used to critique criminal bans: (1) "Structural" arguments hinge on the constraints of the Canadian legal system - legislation complete with prohibitions runs afoul of the Constitution Act …

Anonymity And The Supreme Court's Model Of Expression: How Should Anonymity Be Analysed Under Section 2(B) Of The Charter?, Peter Carmichael Keen

Canadian Journal of Law and Technology

The first part of this article will discuss what anonymity is, and the costs and benefits that anonymity confers on expressive activity. I will demonstrate that anonymity is a double-edged sword in that it can both promote and harm free expression. In the second part, I will suggest that there is no doubt that anonymity can be protected under section 2(b) of the Charter. When I first began this article, I intended to examine ‘‘whether’’ anonymity can be constitutionally protected under section 2(b). As my research progressed, I quickly realised that I was asking the wrong question. I discovered that …

Student Protector, Internet Provider, Or Contractual Party? An Examination Of The Legal Relationship Between A University And Its Students, Anna Christine Milot

Canadian Journal of Law and Technology

The legal relationship between a university and its students is becoming increasingly complex as the use of technology spreads. Accordingly, it is important to define a university’s responsibilities and legal boundaries in order to understand the liability universities can potentially incur when dealing with students. Each Canadian university is unique in its founding and enacting legislation, as will be discussed further later. The individuality of Canada’s universities means that the questions raised in this paper cannot be given answers that can necessarily be generalized across universities. The approach to analysis in this paper, however, is applicable to any of the …

Technology And International Trade: Wille The Real Transformer Please Stand Up?, Todd Weiler

Canadian Journal of Law and Technology

The primary driver of change in Canada’s cultural sector has not been some kind of contrived, neo- liberal plot imposed upon an unsuspecting public with the promise of ‘‘jobs, jobs, jobs.’’ Rather, it has been technology. The role for liberalised trade and investment treaties comes only in the form of a conditioning force, limiting the panoply of choices available to govern- mental officials who want to respond to the changes being wrought by technological advances.

This paper begins with some brief definitions, moving next to an elaboration of its thesis, and finally explaining the application of this thesis to some …

Fragmented Copyright, Fragmented Management: Proposals To Defrag Copyright Management, Daniel J. Gervais, Alana Maurushat

Vanderbilt Law School Faculty Publications

The collective management of copyright in Canada was conceived as a solution to alleviate the problem of inefficiency of individual rights management. Creators could not license, collect and enforce copyright efficiently on an individual basis. Requiring users to obtain permission from individual copyright holders for the use of a work was equally inefficient. Collectives, therefore, emerged to facilitate the clearance of rights between creators and users. Even with the facilitation of collectives in the process, clearing rights remains an inherently difficult and convoluted process. This is especially so in the age of the Internet where clearing rights for multimedia products …

Cyberdemons: Regulating A Truly World-Wide Web, Andrew P. Lycans

Michigan Law Review

In the decade leading up to the twenty-first century, the number of Internet-related legal disputes grew exponentially. This growth continues into the new millennium, introducing old problems in a new context. For instance, in the field of copyright, Eric Eldred, the operator of a website dedicated to posting literary works already in the public domain, challenged the Copyright Term Extension Act ("CTEA"). The CTEA blocked his plans to post works copyrighted in 1923, works which under the previous statute would have entered the public domain in 1999. Looking to trademark law, the field has become obsessed of late with providing …