In July 2011, a consortium of major content providers and Internet service providers announced their intention to implement the Copyright Alert System, a graduated response plan aimed at stemming online copyright infringement by individual users. While other commentators have examined the rise of these systems abroad and certain potential issues with the implementation of such measures in the United States, little has been said about the antitrust implications of a private system of copyright enforcement. This article recounts the history of online infringement leading up to the Copyright Alert System and then analyzes the system from the perspective of antitrust law, taking the position that the system announced raises significant antitrust concerns. The article concludes with recommendations for improving the current system to protect the rights of consumers.
In recent years, politicians, academics, and industry professionals have argued vehemently that copyright protection should extend to cover fashion designs, which are currently excluded under the “useful articles” doctrine. Copyright in the United States is built on economic principles and aims to incentivize innovation. After reviewing the legislative history and other arguments made by proponents of fashion copyright, a different picture emerges: supporters of fashion copyright view fashion as “art” and feel a sense of harm when it is cheaply or slavishly copied. Even if designers feel no economic harm from the copying of their creations, they are morally harmed by it. Perhaps then moral rights law, not copyright, provides the appropriate theoretical framework in which to analyze the extension of further protections to fashion design.
Work as Weapon, Author as Target: Why Parodies That Target Authors (Not Just Their Works) Should Be Fair Uses
In April 2011, comedic musician “Weird Al” Yankovic sought Lady Gaga’s permission to release his song “Perform This Way,” a spoof on Lady Gaga’s “Born This Way” that parodied the artist herself, rather than the original work. But did he even need Gaga’s permission to borrow from her hit song? Courts have only recently begun to consider whether to treat these “author parodies” more like traditional parodies, satires, or something else entirely. The Supreme Court and the circuit courts have yet to address the issue, and the few district courts that have weighed in have propounded opposite holdings. Given the prevalence of author parodies such as “Perform This Way” in popular culture, how the law eventually decides to view these distinctive works will have significant implications for authors and appropriators alike. This article presents both an economic and legal argument for privileging author parodies in a fashion similar to parodies of a work.
Recent appearances of trademarks in popular culture—in rap lyrics, on reality TV shows, even in youth riots—have raised the question whether the owners of those trademarks might pursue legal remedies to protect their brands from unwanted social associations. This Article argues that they cannot, and that we should understand this limitation on trademark rights as grounded in a principle that consumption of certain brands is an expressive act that First Amendment principles place outside trademark owners’ control.
Choking the Channel of Public Information: Re-Examination of an Eighteenth-Century Warning about Copyright and Free Speech
The U.S. Supreme Court in Eldred v. Ashcroft gave First Amendment importance to the topic of copyright history. In measuring whether Congress has altered the “traditional contours” of copyright such that First Amendment scrutiny must be applied, federal courts—including the Supreme Court in its 2011 Term case Golan v. Holder—must carefully examine the intertwined history of copyright and freedom of the press. The famous but misunderstood case of Donaldson v. Beckett in the British House of Lords in 1774 is an important piece of this history. In Donaldson, several lawyers, litigants, judges, and lords recognized the danger posed by copyright to untrammeled public communication. Eighteenth-century newspaper accounts shed new light on the free press implications of this important period in copyright law history.
Caught in the Middle: Reducing the Uncertainty Created by the FDA and the Patent System for Genetic Diagnostic Test Makers
The scientific complexity of genetic diagnostic testing produces test results which are often flawed or difficult to interpret. Therefore, increased regulation of these tests is necessary to protect consumers and encourage patient reliance. However, increased regulation is accompanied by increased costs for genetic diagnostic test makers. If such costs are increased with no opportunity for test makers to recoup their investments, the proposed regulations will reduce public access to these genetic tests, and will reduce future innovation in this field. In similar industries, manufacturers can recoup regulatory costs through intellectual property protection—using a patent to prevent competitors from bringing identical products to market. Unfortunately, the law is unclear as to whether genetic diagnostic tests fall within patentable subject matter. Here I suggest five changes that would alleviate consumer concerns while spurring further innovation in the genetic diagnostic test industry: (1) Increase labeling and genetic counseling requirements for direct-to-consumer tests; (2) Provide for statutory data exclusivity (rather than patent protection) for tests that require clinical studies for FDA approval; (3) Create mandatory maximum approval times for certain classes of genetic diagnostic tests to reduce the regulatory burden on manufacturers; (4) Require that manufacturers and regulatory agencies solicit complaints directly from consumers; and (5) Require minimal new regulation for purely software-based genetic diagnostic tests.
The integration of the Internet into all aspects of society has led to the quick and widespread distribution of information in digital form. This digital information can be easily aggregated and redistributed by third parties. Such information aggregators can free ride on the work of others. For example, Google News collects links to news stories from other news outlets. Blogs, Facebook, Twitter and other social media also enable redistribution of news stories and other information. Newspapers, wire services and other news creators and providers have voiced concern that such free riding allows aggregators to benefit from the work of enterprises that create news media without having to pay any of the costs to obtain such news stories. It has been asserted that free riding is unfair and that it can economically injure or destroy such enterprises. These concerns are reminiscent of the 1918 Supreme Court decision in International News Service v. Associated Press, in which a news organization successfully enjoined a competitor from free riding on its efforts to obtain news stories. The underlying basis for the Court’s decision was a federal common law action for misappropriation. Although a subsequent Supreme Court decision negated federal common law some states adopted the misappropriation doctrine from International News Service under state unfair competition law. This doctrine has been asserted with limited success but courts continue to hold that the doctrine is viable under appropriate facts. This Article will critically examine the International News Service decision and subsequent judicial decisions relying on the misappropriation doctrine. It will argue that International News Service has been misunderstood and misapplied; and, that courts should unequivocally repudiate the doctrine as inconsistent with property law. Additionally, the commonly asserted rationales for the doctrine—preventing free riding and ruinous competition—are not legitimate. Instead, any common law action to protect ideas or information should only succeed, if at all, under existing contract and tort causes of action.
Not Your Father’s Domain Name: How gTLD Expansion Is Poised to Change the Way We Navigate the Internet
International domain-name overseer, ICANN, has been developing plans for the dramatic expansion of available g-TLDs, the .com’s and .gov’s currently so limited in variety that we have them all committed to muscle memory. Proposed regulations allowing for the creation of new dot.possibilities present intuitive marketing opportunities for companies interested in adding sophistication to their online presence. Andy Mcneil explores this potential and the legal challenges that ICANN’s costly and untested regulatory framework present in trademark protection and other strategic marketing competition.
As patent protection afforded outside the United States becomes increasingly lucrative, the time is ripe to consider recalibrating the duration of patent protection afforded within the United States. Wesley D. Markham takes an empirical approach to this policy-based issue. Specifically, he develops a new metric, the “global patent term” (GPT), and uses it to analyze the patenting strategies of three firms in three very different industries. Based on the results of these three case studies, he concludes that patent globalization is more lucrative in some industries than others. Accordingly, the United States should seriously consider technology-specific patent terms to ensure all firms receive appropriate incentives to innovate.
This Article presents the key findings of Wesley D. Markham’s empirical study and is a condensed version of a longer paper reporting his research. The full paper is available at http://ssrn.com/abstract=1796030.
Is Facebook Killing Privacy Softly? The Impact of Facebook’s Default Privacy Settings on Online Privacy