Digital Millennium Copyright Act: Notice and Takedown on Fair Use

Source: Wikimedia Commons

By Niya Ge

Download full note here.

This Note argues that the current standard for monitoring the DMCA takedown process holds copyright holders to little accountability, allowing abuse of the process and disregarding whether the material was fair use or not. This Note navigates common abuses of the takedown process, from broad automatic algorithms, to issuing DMCA takedown notices to intentionally censor the targeted material. Although the current subjective standard for monitoring the legitimacy of suspect infringing materials requires copyright holders to consider fair use, it outlines no actual process or standard to do so, and creates no incentive for proper monitoring or accuracy. This Note argues that an objective standard would be more appropriate in curbing abuse instead of a subjective standard that incentivizes negligent monitoring.… Read the rest

The Alienability of Digital Distribution Licenses

By: Steven Wittenberg

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.[1]

Evidently, digital distribution licenses should have also been listed with the other “unalienable Rights…”

Digital distribution describes the system in which non-tangible digital content – such as movies, music, books and video games – is delivered to consumers. To analogize, think of the internet as the river of commerce and the online delivery medium (e.g. a Kindle or a PlayStation 4) as the port where goods are unloaded; the articles of online electronic commerce include digital products (e.g. a novel or standalone video game) and their sub-products including downloadable content and other add-ons.

Depending on the demands of the consumer, the product might be streamed or downloaded. To illustrate, it … Read the rest

The Consequences of the Death of Net Neutrality

It’s inarguable that one of the greatest features of the internet is sheer freedom. Aside from a few highly regulated and illegal activities, every user is free to have a certain degree of anonymity and autonomy. However, internet service providers (ISPs) have been looking to crack down on certain types of users – those that use up more bandwidth than average. To further this end, AT&T has filed a new patent for “Prevention of Bandwidth Abuse of a Communications System”.[1] But is this really just an attempt to go after torrenters, file sharers and pirates, or is there a further motive here? And even if AT&T is being honest with whom it wishes to restrict, is this a symptom of a greater issue?

AT&T has been looking into different ways to reduce bandwidth congestion and increase profits. Take, for instance, the Sponsor program which allows companies to pay AT&T … Read the rest

Welfare, Innovation and Growth: The Patent Paradox

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Increasing intellectual property rights (IPR) poses a risk to both consumers and economic growth. The United States scored 4.9 out of 5 in 2005, up from 3.8 in 1975, according to the Park index for evaluating the strength of patent protection.[1] This trend has continued to gain strength, as evidenced by the over one billion dollars awarded to Apple for its infringement case against Samsung. Economic considerations dominate the arguments favoring this trend towards strong IPR, namely the “incentive to invent” theory. This rationale, however, falls short in its justification for continuing to strengthen IPR. Firstly, the “incentive to innovate” theory fails to discuss the implications stringent IPR have on consumers. Secondly, the Endogenous Growth Model demonstrates the Read the rest

Germany and Patents: All that Glitters isn’t Gold

               On April 2nd, Microsoft decided to move its European distribution center from Germany to the Netherlands. The decision was not the product of distribution logistics. Rather, Microsoft sought to avoid German patent law in advance of a pending April 17th opinion by the German patent courts. German patent law has made the country something of a patent shelter in Europe. Germany provides expedient decisions and easy-to-obtain injunctions that are hard to challenge for defendants. All that sounds fantastic until a corporation or small business is the target of those laws rather than the one benefitting. Furthermore, in these tough economic times, Germany’s patent regime has broad consequences for economic and technological development.

               Currently, two-thirds of all patent claims in Europe are filed in Germany. This fact is not surprising given all the seemingly … Read the rest

Cushioning the Impact of First to File for Small Businesses: The Provisional Patent Application

On September 16, 2011, President Obama signed into law the Leahy-Smith America Invents Act (“AIA”), the most substantial change to patent law in the United States since the Patent Act of 1952.[1]  Over the eighteen months following enactment, a number of alterations to the process that the U.S. Patent and Trademark Office (“PTO”) uses to evaluate patent applications will take place.  The single most significant effect of the AIA is the transition from a First to Invent (“FTI”) patent system to a First to File (“FTF”) patent system.  Many commentators have noted the challenges that the FTF system poses to small businesses and entrepreneurs.[2]  Indeed, small applicants, often operating on a limited budget and lacking the funds to fully pursue novel ideas, are at a significant disadvantage under FTF when compared with larger entities.  However, the AIA is now the law of the Read the rest

The Great Firewall of America: Is the United States on the Road to Becoming the Next Internet Villain?

           In the past couple of months, two Congressional bills have been the subject of a heated debate between media industry giants and some of the world’s largest technology companies: the Stop Online Piracy Act (SOPA) in the House and its Senate counterpart the PROTECT IP Act (PIPA). This legislation is meant to provide the Department of Justice and copyright holders with the ability to curb access to “rogue” foreign websites dedicated to infringing or counterfeit goods. Since the U.S. government does not have the power to take down foreign websites, this bill would grant it the ability to forbid Internet providers from allowing users to connect to those sites. While many entertainment and pharmaceutical companies are in support of these bipartisan bills, digitally oriented companies such as Google, Facebook, and Mozilla have publicly voiced their opposition. Although the problems the bill attempts to address – Read the rest

The End of Peer-to-Peer File Sharing?

Another major peer-to-peer file sharing platform will soon face obscurity as well as a potentially crippling damages payout. LimeWire was recently told by a U.S. District Court in New York to shut down its peer-to-peer file-sharing system, after being held liable for copyright infringement.[1] The RIAA, Recording Industry Association of America, filed suit about four years ago claiming that “as much as 93 percent of LimeWire’s file sharing traffic was unauthorized copyright material.”[2] This was the first time since the Supreme Court ruled in MGM Studios, Inc. v. Grokster, LTD that a file sharing software maker was targeted. The RIAA claims that LimeWire owes trillions of dollars in damages for enabling distribution of copyrighted songs, a claim the federal judge presiding has deemed to be “absurd” yet admits this is the first time “a court has been asked to consider the issue of whether a copyright holder can … Read the rest

Induced Infringement: What standard should the Supreme Court adopt in Global-Tech Appliances v. SEB S.A.?

On October 12, the Supreme Court granted certiorari to Global-Tech Appliances, Inc. and Pentalpha Enterprises, Ltd. (Docket No. 10-6; July 29, 2010) to consider what state of mind must be shown by a patentee, under 35 U.S.C. §271(b), to establish that a defendant induced infringement of a patent. That section simply states: “Whoever actively induces infringement of a patent shall be liable as an infringer.” 35 U.S.C. §271(b). 

The Supreme Court’s answer may have significant economic consequences, especially for foreign companies importing goods into the United States, because the statutory provision addresses indirect, rather than direct liability. Actions taken exclusively abroad could create liability for such companies, who must now contemplate the costs of complying with the to-be-announced Supreme Court standard. The standard will also affect whether officers and directors of a corporation would be held personally liable for indirect infringement. Such additional costs will undoubtedly be passed on to … Read the rest

Excluding the Endowment Effect?

I. Introduction

                The Coase Theorem has no doubt left an indelible mark on Law and Economics. The theorem proposes that, absent transaction costs, property will be allocated efficiently regardless of initial entitlement.[1] Widespread acceptance of this assertion has given rise to much legal analysis aimed at reducing transaction costs in order to lubricate bargaining and achieve efficient allocation of property rights. On the whole this is not a bad thing – transaction costs are a major obstacle to efficient bargaining and should be reduced. However, recent studies which indicate the existence of the endowment effect have lead many scholars to re-examine their initial assumptions regarding the importance initial entitlement.[2]

II. Background

                A. The Coase Theorem

                The main premise of the Coase Theorem is that, absent transaction costs, property rights will be efficiently allocated regardless of initial entitlement.[3] This conclusion leads to two further assertions Read the rest