Internet Law Commons^™

Technologies Of Servitude Understanding Firmware Tpms As Interests In Personal Property, Anthony D. Rosborough

Canadian Journal of Law and Technology

Widespread computerization and embedded system design has facilitated the pervasive and latent implementation of technological protection measures (‘‘TPMs”) to restrict device firmware access. Often referred to as ‘‘digital locks,” these restrictions impose a whole host of limitations on how owners use and manage the increasing number of products and devices in which they are incorporated. In many cases, TPM restrictions can prevent activities with social, environmental, and economical benefits, including repair, repurposing, and interoperability. In response, governments around the world are now revisiting and scrutinizing their TPM anti-circumvention laws within copyright and competition policy. Beyond these perspectives, this article looks …

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, …

Copyrighting Tiktok Dances: Choreography In The Internet Age, Ali Johnson

Washington Law Review

TikTok is a video-sharing social media application that launched in 2018 and has grown wildly since its inception. Many users are drawn to the platform by “dance challenges”—short dance routines of varying complexity set to popular songs that are recreated by other users, eventually going “viral” (i.e., recreated on a massive scale by other users) on the app. Going viral can provide young dancers and choreographers an opportunity to break into the highly competitive entertainment industry. However, there is a problem: due to TikTok’s interface and community practices, the original creators of a dance (who, significantly, are often young women …

Boss Battle: Twitch Vs Proposed Amendments To The Knowledge Standard Under The Digital Millennium Copyright Act, Zachary Messick

Journal of Intellectual Property Law

Under the Digital Millennium Copyright Act (DMCA), indirect theories of liability such as vicarious liability and contributory infringement have been inconsistently applied, leading the Copyright Office to recommend lowering the knowledge standard and increasing potential liability for Online Service Providers (OSPs). In this note, I will discuss the histories of vicarious liability and contributory infringement, which demonstrate that courts have correctly applied the standards under the DMCA. Further, through a case-study of Twitch, an up-and-coming streaming website, I will discuss how the proposed amendments drive against the policies underlying the indirect theories of liability and would destroy OSPs like Twitch. …

Copyright Fair Use And The Digital Carnivalesque: Towards A New Lexicon Of Transformative Internet Memes, David Tan, Angus J. Wilson

Fordham Intellectual Property, Media and Entertainment Law Journal

The influence of social media in the 21st century has led to new social norms of behavior with individuals presenting themselves to others, whether physically or virtually, on various social media platforms. As a result, these new trends have led recent society to be characterized as a “presentational cultural regime” and a “specular economy.” In a Bakhtinian digital carnivalesque, internet memes present a feast of challenges to exceptions and limitations in copyright law. Memes encompass a wide range of expression about the human experience, while also existing as a playful mode of culturally permissible expression in online social communications rather …

Sounds Of Science: Copyright Infringement In Ai Music Generator Outputs, Eric Sunray

Catholic University Journal of Law and Technology

The music business is no stranger to disruptive technology. The industry’s apparent comeback from the devastating downturn caused by illegal file sharing seems to have arrived just in time for what may be an even more disruptive technological phenomenon: artificial intelligence (“AI”). Much has been said about the implications of AI-generated music, ranging from issues of ownership, to rights of publicity. However, there has been surprisingly little discussion of infringement in the AI systems’ outputs. By examining the functionality of AI music generators through the lens of de minimis use case law, this paper will explain how the outputs of …

Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg

Faculty Scholarship

This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a …

A Tale Of Two Interoperabilities; Or, How Google V. Oracle Could Become Social Media Legislation, Charles Duan

Scholarly Articles in Law Reviews & Journals

The Supreme Court'srecent decision in Google LLC v. Oracle America, Inc. has provided the latest word on an issue that many have described as "interoperability," and it comes at a time when lawmakers around the world are debating a policy called "interoperability" with respect to majorInternetplatforms. At first glance, these two similarly named policy conversations copyright protection of software interfaces and interconnection among competing Internet platforms, respectively have little to do with each other. Yet they are vitally intertwined: the activities and issues featured in Google are so closely linked to the questions of digital competition that interoperability reforms directed …

Poland’S Challenge To Eu Directive 2019/790: Standing Up To The Destruction Of European Freedom Of Expression, Michaela Cloutier

Dickinson Law Review (2017-Present)

In 2019, the European Parliament and Council passed Directive 2019/790. The Directive’s passage marked the end of a fouryear- long legislative attempt to impose more liability for copyright violations on Online Service Providers, an effort which was controversial from the start. Online Service Providers fear that the 2019 Directive, especially its Article 17, will completely change the structure of liability on the Internet, forcing providers to adopt expensive content filtering systems. Free speech advocates fear that ineffective filtering technology will infringe upon Internet users’ rights to express themselves, and legal scholars have pointed out the Directive’s inconsistency with prior European …

Automated Copyright Enforcement Online: From Blocking To Monetization Of User-Generated Content, Henning Grosse Ruse-Khan

Joint PIJIP/TLS Research Paper Series

Global platforms such as YouTube, Facebook, Instagram or TikTok live on users ‘freely’ sharing content, in exchange for the data generated in the process. Many of these digital market actors nowadays employ automated copyright enforcement tools, allowing those who claim ownership to identify matching content uploaded by users. While most debates on state-sanctioned platform liability and automated private ordering by platforms has focused on the implications of user generated content being blocked, this paper places a spotlight on monetization. Using YouTube’s Content ID as principal example, I show how monetizing user content is by far the norm, and blocking the …

The Problem Of Modern Monetization Of Memes: How Copyright Law Can Give Protection To Meme Creators, Mark Marciszewski

Pace Intellectual Property, Sports & Entertainment Law Forum

Some legal questions answered in this article on the horizon for the courts and lawyers is how should courts apply copyright law to popular media made by small scale creators and shared on the internet, otherwise known as "memes."

Part II of this article will focus on validity of potential copyright protection in internet memes. It will start by describing the increased monetization surrounding memes and how this monetization calls for greater interest for meme creators to protect their work. It will then describe the merits of individual copyright interests in internet memes.

Part III of this article will focus …

Automation In Moderation, Hannah Bloch-Wehba

Faculty Scholarship

This Article assesses recent efforts to encourage online platforms to use automated means to prevent the dissemination of unlawful online content before it is ever seen or distributed. As lawmakers in Europe and around the world closely scrutinize platforms’ “content moderation” practices, automation and artificial intelligence appear increasingly attractive options for ridding the Internet of many kinds of harmful online content, including defamation, copyright infringement, and terrorist speech. Proponents of these initiatives suggest that requiring platforms to screen user content using automation will promote healthier online discourse and will aid efforts to limit Big Tech’s power.

In fact, however, the …

The Power Of Social Media As An Evolving Force And Its Impact On Intellectual Property, Whitney N. Alston

Cybaris®

No abstract provided.

Introduction: What Is Real? Authenticity, Transparency, And Trust In The Digital Age Of Fashion, Joseph M. Forgione

NYLS Law Review

No abstract provided.

A United States Perspective On Digital Single Market Directive Art. 17, Jane C. Ginsburg

Faculty Scholarship

To a US appraiser, article 17 of the Digital Single Market Directive suggests the EU has learned from American mistakes (and from its own) in the allocation of internet intermediaries’ liability for hosting and communicating user-posted content. Before the DSM Directive, art. 14 of the 2000 eCommerce Directive set out a notice-and-takedown system very similar to the regime provided in 17 U.S.C. section 512(c). Both regimes replaced the normal copyright default, which requires authorization to exploit works, with a limitation on the liability of service providers who complied with statutory prerequisites. Because the limitation ensured that service providers would not …

Brief Fof The R Street Institutte, Public Knowledge, And The Niskanen Center As Amici Curiae In Support Of Petitioner, Charles Duan, Meredith F. Rose

Amicus Briefs & Court Filings

The Java SE declarations of this case are simply a language of commands. As an application programming interface, or API, they exhibit features common to any language: a structured vocabulary and grammatical syntaxes, which a computer system understands as instructions to perform predefined tasks. What Oracle accuses as infringement is “reimplementation,” namely the building of a system, in this case Google’s Android platform, that repurposes the same words and syntaxes of the Java declarations.

Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder

Duke Law & Technology Review

No abstract provided.

Is The Internet Over?! (Again?), James Boyle

Duke Law & Technology Review

No abstract provided.

Imaginary Bottles, Jessica Litman

Duke Law & Technology Review

No abstract provided.

The Enigma Of Digitized Property A Tribute To John Perry Barlow, Pamela Samuelson, Kathryn Hashimoto

Duke Law & Technology Review

No abstract provided.

John Perry Barlow’S Call For Persuasion Over Power, Jonathan L. Zittrain

Duke Law & Technology Review

No abstract provided.

The Past And Future Of The Internet: A Symposium For John Perry Barlow

Duke Law & Technology Review

No abstract provided.

What Didn’T Happen: An Essay In Speculation, Peter Jaszi

Duke Law & Technology Review

No abstract provided.

Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder

Georgetown Law Faculty Publications and Other Works

The quarter century since Barlow’s writing allows us to assess his prophecy. The economy moved in the very direction that Barlow anticipated—from an economy focused on the ownership of things to an economy based on services and experiences. In high-income countries, services now account for three-quarters of the gross domestic product.

But intellectual property proved more resilient and adaptable than Barlow predicted. Intellectual property law both offered exceptions where necessary, while simultaneously expanding to cover new forms of creativity and activities. In this short essay, we argue that, for good or ill, intellectual property has reconfigured itself for an economy …

Privacy And Legal Automation: The Dmca As A Case Study, Jonathon Penney

Articles, Book Chapters, & Popular Press

Advances in artificial intelligence, machine learning, computing capacity, and big data analytics are creating exciting new possibilities for legal automation. At the same time, these changes pose serious risks for civil liberties and other societal interests. Yet, existing scholarship is narrow, leaving uncertainty on a range of issues, including a glaring lack of systematic empirical work as to how legal automation may impact people’s privacy and freedom. This article addresses this gap with an original empirical analysis of the Digital Millennium Copyright Act (DMCA), which today sits at the forefront of algorithmic law due to its automated enforcement of copyright …

Linking On The Internet And Copyright Liability: A Clarion Call For Doctrinal Clarity And Legal Certainty, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

Prompted by the decisions of the CJEU in Svensson and GS Media, this paper attempts to unmask the potential copyright liability of an internet user who engages in hyperlinking, framing and/or inline linking from a principled and conceptually coherent perspective. The overall discourse in this paper will be guided by the following two questions: 1. Do these forms of online activity constitute acts of communication (or making available) in the first instance? 2. Should they fall within the purview of Art. 3(1) of the EU Information Society Directive and be subject to potential primary/direct liability (as opposed to accessory/indirect liability)?It …

Fair Use And Social Media, John Dettinger

All Musselman Library Staff Works

This poster was created in a collaborative effort by Musselman Library’s Copyright Committee as part of a display for Fair Use Week 2018. The poster was intended to get viewers to think about the 4 factors of fair use in the context of two art projects that used social media photos: Yolocaust by Shahak Shapira and New Portraits by Richard Prince. It was also intended to get viewers thinking about the ways their social media content might get used beyond the original intention.

The Perfection And Priority Rules For Security Interests In Copyrights, Patents, And Trademarks: The Current Structural Dissonance And Proposed Legislative Cures, Thomas M. Ward

Maine Law Review

The structural legal dissonance that undermines the effective financing of federal intellectual property rights (patents, trademarks registrations, copyrights, and maskworks) is rooted in the prominence of title in both the early conceptual history of personal property financing and in the language of the federal tract recording acts. While genuine ownership transfers have always represented the prototype under the federal intellectual property recording statutes, transfers intended for security were also originally included because of the early judicial thinking about the importance of title to the validity (against third parties) of a “mortgage” right in intangible personal property. As products of their …

Famous On The Internet: The Spectrum Of Internet Memes And The Legal Challenge Of Evolving Methods Of Communication, Stacey M. Lantagne

University of Richmond Law Review

No abstract provided.

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 …