2003-2004
Articles
Reality Bites: How the Biting Reality of Piracy in China Is Working to Strengthen Its Copyright Laws
Graham J. Chynoweth
Date posted: 2-11-2003
This iBrief discusses how persistent international concern and emerging domestic concern over Chinese intellectual property theft have helped give sharper teeth to the Chinese copyright regime in the past two years and how these new laws may leave bite marks in the future.
Topic: Copyrights & Trademarks
The Pros and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation Websites
Joseph W. Goodman
Date posted: 2-18-2003
Due to increasing use of the Internet worldwide, the number of disputes arising from Internet commerce is on the rise. Numerous websites have been established to help resolve these Internet disputes, as well as to facilitate the resolution of disputes that occur offline. This iBrief examines and evaluates these websites. It argues that cyber-mediation is in its early stages of development and that it will likely become an increasingly effective mechanism for resolving disputes as technology advances.
Topic: eCommerce
Patent Royalties Extending Beyond Expiration: An Illogical Ban From Brulotte to Scheiber
Michael Koenig
Date posted: 3-4-2003
A recent decision by the Seventh Circuit Court of Appeals, Scheiber v. Dolby Laboratories, Inc., called into question, yet dutifully applied, the somewhat disfavored Supreme Court patent case of Brulotte v. Thys Co. For thirty-eight years, Brulotte has served as an absolute prohibition on the collection of any patent royalties extending beyond the expiration date of the patent. As Justice Douglas stated in writing for the eight-Justice majority, "a patentee's use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se." Ostensibly, this concise and easily-applied exposition of the law seems sensible enough. But, the devil is in the details. This iBrief highlights the flawed reasoning underlying Brulotte as evidenced by its application in Scheiber, but ultimately concludes that overruling the case may be of little help to Mr. Scheiber in his suit against Dolby.
Topic: Patents & Technology
Software Patent Law: United States and Europe Compared
Michael Guntersdorfer
Date posted: 3-21-2003
Software is a global business. Patents are increasingly the protection of choice; as a consequence, international software patent laws are of growing importance to software vendors. This article focuses on European patent law and how it differs from United States law in regards to software technology. Statutes and relevant case law of both unions are discussed and compared, providing an introductory secondary source for scholars and practitioners.
Topic: Patents & Technology
From Napster to Kazaa: The Battle Over Peer-To-Peer Filesharing Goes International
Seagrumn Smith
Date posted: 3-28-2003
The Recording Industry Association of America (RIAA) may have won its domestic battle against Napster, but as an increasing number of peer-to-peer (P2P) providers crop up overseas, it has become apparent that the file-swapping battle has really just begun. As the recording and movie industries struggle to protect their copyrighted interests abroad, courts, both in the United States and in foreign countries, are being asked to answer difficult questions concerning international jurisdiction and enforcement. This ibrief will further explore these issues, particularly with reference to the RIAA's and Motion Picture Association of America's (MPAA) legal efforts against Kazaa, a foreign-based P2P provider, in an attempt to assess whether copyright in the digital age can survive beyond our shores.
Topic: International
ICANN—Now and Then: ICANN’s Reform and Its Problems
Kim G. von Arx
Date posted: 4-11-2003
This paper sheds some light upon the major problem arising from the current normative infrastructure of the DNS and provides a possible solution to the current physical problem of the DNS. The paper's main focus is the single-entity control of the A Root. The paper uses as a starting point the Blueprint prepared by the Committee on ICANN Evolution and Reform and raises the question: Has this reform done anything to resolve the single-entity control of the A Root? The paper argues that the reform has done nothing to solve the problem because the international privatization of the DNS merely substitutes the administration of the DNS function without making changes to the normative infrastructure of the DNS. In light of the above, the paper argues that there is a need to declare independence from a one-entity controlled DNS. The suggested approach is to share authority over the root by acknowledging that countries that are accountable to their populations are the authorities for their own ccTLDs. Once technical and political independence has been achieved, the technical and, to some degree, political management of the DNS should be exercised through an international body. In order to initiate a discussion for a truly international body this paper offers nine principles that a new international ccTLD cooperation organization should observe when working on its own creation.
Topic: International
The E-Government Act: Promoting E-Quality or Exaggerating the Digital Divide?
Jaime Klima
Date posted: 4-15-2003
In passing the E-Government Act of 2002, Congress has promised to improve the technological savvy of federal agencies and make more public forms and records available online. However, the question is whether doing so will alienate those Americans who do not have Internet access. Will the Act exaggerate the gap between the Internet haves and have-nots that is known as the digital divide? This iBrief identifies the e-quality issues arising from the E-Government Act and argues that implementation of the Act, however well intentioned, may exaggerate the digital divide.
Topic: eCommerce
Do Not Advertise: The Current Fight Against Unsolicited Advertisements
Dannielle Cisneros
Date posted: 4-29-2003
Have you ever received a phone call from a telemarketer during dinner? Do e-mails entitled "Protect Your Computer Against Viruses for $9.95" or "GET A FREE PASS TO THOUSANDS OF XXX SITES" annoy you? Are you tired of watching advertisements that continue after the posted start time for a movie? Many Americans are irritated with the amount of daily interruptions caused by the current lack of advertising regulations. In some instances, the advertisers shift their marketing costs to unwilling e-mail users or moviegoers. This article focuses on unsolicited communications and potential solutions to the seemingly endless problem of spam.
Topic: Media & Communications
Can the Internet Kill? Holding Web Investigators Liable for Their Criminal Customers
Mark Sweet
Date posted: 5-6-2003
As the wealth of online information grows, private investigation websites are becoming more powerful and popular. Their client lists include attorneys, insurance agencies, banks, neighbors, employers, and, oh yes, stalkers and identity thieves. When a stalker used information from a web investigator to track down and kill his victim, the New Hampshire Supreme Court held the investigator liable for its customer's criminal acts. This iBrief considers how far liability should extend for a web investigator, distinguishes web investigators from handgun and bullet retailers, and explains how this decision realizes a policy against privacy invasions.
Topic: eCommerce
Sealing the Coffin on the Experimental Use Exception
Jennifer Miller
Date posted: 5-7-2003
In a petition for writ of certiorari, Duke University requests that the Supreme Court reverse a Federal Circuit holding that, in its view, "seals the coffin on the experimental use exception for private universities." This iBrief discusses the Federal Circuit's decision in Madey v. Duke University and its possible effects on the progress of science.
Topic: Patents & Technology
Is I-Voting I-Llegal?
Brett Stohs
Date posted: 5-14-2003
The Voting Rights Act was passed to prevent racial discrimination in all voting booths. Does the existence of a racial digital divide make Internet elections for public office merely a computer geek's pipe dream? Or can i-voting withstand scrutiny under the current state of the law? This i-Brief will consider the current state of the law, and whether disproportionate benefits will be enough to stop this extension of technology dead in its tracks.
Topic: CyberCrime
Eldred v. Ashcroft: How Artists and Creators Finally Got Their Due
Shalisha Francis
Date posted: 5-19-2003
In regards to copyright the U.S. Constitution states: "Congress shall have the power . . . to promote the Progress of Science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The intellectual property clause was added to the Constitution because of the recognition of the importance of balancing both an author's interest in protecting their creative works with the public interest in maintaining a method by which those same works could enter the public domain. However, the ability to properly perform this balancing act has proven more difficult than anyone could have expected. A recent Supreme Court case has tipped the scales and given artists and creators their just due.
Topic: Copyrights & Trademarks
Reviving Informed Consent: Using Risk Perception in Clinical Trials
Dana Ziker
Date posted: 6-9-2003
The current doctrine of informed consent falls far short of its potential to serve as a valuable safeguard for human research subjects. Instead of providing a channel of communication between physician and subject, informed consent is a lifeless entity responsible for a large portion of the misunderstanding existing between these parties. Acknowledging risk perception principles may help transform the informed consent process into an effective communication of health risks.
Topic: Health & Biotechnology
The Pending Determination of the Legality of Internet Gambling in the United States
Gregory Manter
Date posted: 7-11-2003
Internet gambling has been targeted on many fronts in the United States, including Congress, the courts, the Bush Administration and credit card agencies. This iBrief details recent trends in the regulation of online gaming, and concludes that while absolute prohibitions may be ineffective, the combined resistance of these institutions will prevent the industry from expanding its customer base.
Topic: eCommerce
The FCC and Congress Should Consider Consumer Rights When Making the Transition to DTV
Frank Ing-Jye Chao
Date posted: 8-4-2003
This ibrief discusses the copyright issue surrounding the transition into Digital Television. It proposes that the Federal Communications Commission should balance the copyright interests of all parties involved in the DTV transition. Creators of informative and entertaining works must be rewarded with incentives to create further works. Such incentives necessarily involve copyright protection for these content holders. Just as the rights of content holders should be protected, the public's right to access information and to freely express ideas needs to remain protected. Copyright laws, specifically the fair use doctrine, must be allowed to stand firm while maintaining flexibility in order to advance with media technology.
Topic: Media & Communications
Hatch–Waxman Reform and Accelerated Market Entry of Generic Drugs: Is Faster Necessarily Better?
Sarah E. Eurek
Date posted: 8-13-2003
Recently there has been a considerable amount of pressure to accelerate consumer access to generic drugs, which are significantly less expensive than their brand-name counterparts. One way to bring generic drugs on to the market sooner is through revision of the existing law relating to pharmaceutical patents. This iBrief describes recent regulatory changes to the Drug Price Competition and Patent Term Restoration Act (the Hatch-Waxman Act), which governs the patenting process for new drug products, as well as current legislative efforts to speed generic access through Hatch-Waxman reform. This iBrief also assesses whether these changes will be beneficial to consumers on a long-term basis.
Topic: Health & Biotechnology
The FCC Under Attack
Kerri Smith
Date posted: 8-26-2003
The Federal Communications Commission voted in a contentious three-two split to relax rules limiting ownership of TV stations, radio stations, and newspapers. Among its critics are members of Congress who may pass legislation reinstating the old rules. Others will likely file suit against the FCC in the hopes of overturning the decision. This article will discuss the current debate over media deregulation in light of the recent FCC order. Specifically, this ibrief focuses on concerns over media consolidation in the wake of the 'Clear Channelization' of American radio, and addresses the contrasting depictions of the current media landscape by advocates and opponents of deregulation.
Topic: Media & Communications
A Putative Inventor’s Remedies to Correct Inventorship on a Patent
Campbell Chiang
Date posted: 9-11-2003
Inventorship is a required component of patents issued in the United States, and the penalty for filing a patent with incorrect inventorship is harsh: possible invalidation of the entire patent. This iBrief explores the background on inventorship in the United States patent system, and various remedies such as 35 U.S.C. §116, 35 U.S.C. §256, and interference proceedings in correcting errors in inventorship. This iBrief will then discuss the usefulness of these various remedies to a putative inventor who was left off the inventorship of a patent.
Topic: Patents & Technology
Students, Music and the Net: A Comment on Peer-To-Peer File Sharing
David L. Lange
Date posted: 9-17-2003
As most of the public now know, the recording industry has lately filed civil suits alleging copyright infringement against hundreds of individual defendants across the country, many (I think most) of them college students and campus hangers-on. Hundreds more such suits are said to be in the offing. The nature of the infringements? Peer-to-peer file sharing via the Internet: a kind of piracy, to use the term favored by the industry, or downloading, as it is generally thought of by the students themselves - but from either perspective, the practice of recording music from the Net while making it available in turn to others, using any of a growing number of computer programs designed to make the practice work.
Topic: Copyrights & Trademarks
Are We Legislating Away Our Scientific Future? The Database Debate
Dov Greenbaum
Date posted: 9-22-2003
The ambiguity of the present copyright laws governing the protection of databases creates a situation where database owners, unsure of how IP laws safeguard their information, overprotect their data with oppressive licenses and technological mechanisms (condoned by the DMCA) that impede interoperation. Databases are fundamental to scientific research, yet the lack of interoperability between databases and limited access inhibits this research. The US Congress, spurred by the European Database Directive, and heavily lobbied by the commercial database industry, is presently considering ways to legislate database protections; most of the present suggestions for legislation will be detrimental to scientific progress. The author agrees that new legislation is necessary, but not to provide extra-copyright protections, as database owners would like, but to create an environment wherein data is easily accessible to academic research and interoperability is encouraged; yet simultaneously providing database owners with incentives to produce new databases. One possibility would be to introduce standardized compulsory licensing of databases to academics following an embargo period where databases could be sold at free-market prices (to recoup costs). Databases would be given some sort of intellectual property protection both during and after this embargo in return for a limiting of technical safeguards and conforming to interoperability standards.
Topic: Copyrights & Trademarks
Strengthening the Distinction Between Copyright and Trademark: The Supreme Court Takes a Stand
Jessica Bohrer
Date posted: 9-30-2003
Until recently, the question of whether §43 of the Lanham Act prevented the unaccredited copying of an un-copyrighted work was an open one. However, in Dastar v. Twentieth Century Fox, the United States Supreme Court speaks directly on this issue, emphasizing the distinction between copyright and trademark protections and cautioning against "misuse or overextension" of trademark protections into areas traditionally covered by copyright or patent law. This iBrief assesses the importance of such line drawing and explores the implications of this decision.
Topic: Copyrights & Trademarks
Online Defamation: Bringing the Communications Decency Act of 1996 in Line With Sound Public Policy
Ryan W. King
Date posted: 10-6-2003
According to the Communications Decency Act of 1996, a provider of an interactive computer service cannot be held liable for publishing a defamatory statement made by another party. In addition, the service provider cannot be held liable for refusing to remove the statement from its service. This article postulates that such immunity from producer and distributor liability is a suspect public policy, and argues that the statute should be amended to include a broad definition of "development" and a "take-down and put-back" provision.
Topic: eCommerce
Unintended Consequences: State Merger Statutes and Nonassignable Licenses
Joshua G. Graubart
Date posted: 10-13-2003
The confused state of most state corporate merger statutes allows many intellectual property licenses to find their way into unintended hands by way of corporate merger, in spite of non-assignment clauses. Clearly a detriment to licensors, corporate licensees too should be wary of depending upon the merger statute; a court ruling may not go their way. The states must clean up their collective act and bring some much needed certainty to a highly unpredictable intersection of corporate and intellectual property law.
Topic: Copyrights & Trademarks
Fairplay or Greed: Mandating University Responsibility Toward Student Inventors
Carmen J. McCutcheon
Date posted: 10-22-2003
Over twenty years have passed since the enactment of The Patent and Trademark Law Amendments Act (Bayh-Dole Act) and universities continue to struggle with their technology transfer infrastructures. Lost in that struggle are those who could be considered the backbone of university research: the students. Graduate and undergraduate students remain baffled by the patent assignment and technology transfer processes within their various institutions. Efforts should be undertaken by universities to clarify the student's position in the creative process.
Topic: Patents & Technology
Are Biotech Crops and Conventional Crops Like Products? An Analysis Under GATT
Julian Wong
Date posted: 10-29-2003
The transatlantic debate over the use of genetically modified organisms ("GMO"s) as food products, with the US as a proponent on one side, and the European Union ("EU") as an opponent on the other, is set to take center stage. The US has initiated formal legal action under the World Trade Organization Dispute Settlement System, charging that the EU violates several agreements of international trade law, including Article III of GATT, an anti-protectionist measure which forbids a country from favoring its own products over imported "like products." The US claims that GMOs and conventional crops are "like products,, and that the EU moratorium on GMOs thus violates Article III. This iBrief assesses the US "like products" claim, most notably in light of Asbestos, a recent WTO case which provides important guidance for determining likeness under four criteria.
Topic: Health & Biotechnology
Europe: Open Market… Open Source?
Heather Forrest
Date posted: 11-3-2003
The recent Proposed Directive on the patentability of computer-implemented inventions takes the European Community a step further down the road towards patents for computer software. If the goal of the Proposed Directive is to facilitate market entry for individual programmers and small and medium enterprises -- as it must be within the framework of the European Treaty -- then the European Commission should not be expanding intellectual property rights in technology goods, which, by their very nature, will lose value to the public long before their monopoly rights expire. Rather, the Commission should look to the open source movement and other, more temporal means of protection to spur innovation and increase Europe's competitiveness on the worldwide market for technology goods.
Topic: International
3D Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?
Ben Quarmby
Date posted: 11-13-2003
With the advent of protein engineering, the determination of a protein’s 3D structure has taken on a whole new importance. This has prompted some to call for the United States Patent and Trademark Office [USPTO] to break with tradition and allow patents on the three-dimensional structural information of proteins. This iBrief will discuss whether such information would constitute patentable subject matter under 35 U.S.C. §101, and how much protection patents on this information could actually confer.
Topic: Patents & Technology
Pfaff Revisited: How the Federal Circuit Has Elaborated on the “Ready for Patenting” Standard
Jennifer F. Miller
Date posted: 11-18-2003
In Pfaff v. Wells Electronics, Inc., the Supreme Court established a two-part test to determine when an invention is "on sale" for purposes of Title 35 U.S.C. §102(b). In addition to being the subject of a commercial offer for sale, an invention must be "ready for patenting" in order to be considered "on sale." Since Pfaff, the Court of Appeals for the Federal Circuit has had numerous opportunities to expound upon how inventors can fulfill the latter condition. This iBrief will discuss the factors the Federal Circuit has determined are indicative of an invention's "ready for patenting" status.
Topic: Patents & Technology
Lights, Camera, Lawsuit
A. J. Bedel
Date posted: 11-26-2003
As the speed of Internet access improves, the film industry will need to explore its options for eliminating the downloading of digital movie files. After examining the successes and failures of the music industry in its battle with peer-to-peer networks, the film industry has begun to follow its predecessor. However, the nature of film as an entertainment medium is quite different than that of music. As a result, the film industry could implement creative solutions to this problem that would not have been available to the music industry. A recent study shows that most films available on the Internet have been leaked by industry insiders. By implementing an increasingly publicized use of trade secret litigation, the film industry could take a tough and effective stance against the digital dragon.
Topic: Copyrights & Trademarks
U.S. Infringement Liability for Foreign Sellers of Infringing Products
Troy Petersen
Date posted: 12-2-2003
With the ever-increasing international flavor of business comes an important question for United States patent holders and foreign manufacturers alike: Can a company be held liable for patent infringement in the United States for selling an infringing product abroad that is later imported into the United States?
Topic: Patents & Technology
Patenting Computer Data Structures: The Ghost, the Machine and the Federal Circuit
Andrew Joseph Hollander
Date posted: 12-9-2003
Courts view "data structures," the mechanism by which computers store data in meaningful relationships, differently than do computer scientists. While computer scientists recognize that data structures have aspects that are both physical (how they are stored in memory) and logical (the relationships among the stored information), the Federal Circuit, in its attempts to set clear standards of the scope of patentability of data structures, has not fully appreciated their dualistic nature. This i-brief explains what data structures are, explores how courts have wrestled with setting a limiting principle to determine their patentability, and discusses the resultant impact on claim drafting.
Topic: Patents & Technology
Piracy Deserves No Privacy
Frank Chao
Date posted: 12-23-2003
The Recording Industry Association of America ("RIAA"), the music industry's trade and lobbying group, recently initiated a controversial tactic to bring to surface previously anonymous digital pirates of the Internet. This aggressive tactic aims to make safe the digital oceans for copyright and involves identifying and bringing claims against infringing individuals who download, swap, and/or post copyrighted music illegally via the Internet. The RIAA cares not who the infringers are or whether the infringers know the illegality of their actions. Nor does the music industry concern itself with the inevitable storm of backlash bound to fall upon them for suing uninformed or unintentional infringers. Internet users and privacy advocates, however, care all too much. This i-brief attempts to alleviate the fears of privacy infringement by bringing to light certain safeguards built into the Digital Millennium Copyrights Act ("DMCA") to deal with the possibility of both fraudulent identity subpoenas and infringement into personal privacy. In addition, case law will show that the subpoena powers of the DMCA will not be abused by those who truly wish to enforce copyright laws and legitimate claims of ownership, thereby maintaining the privacy of law abiding Internet users.
Topic: Copyrights & Trademarks
The “Commercial Offer for Sale” Standard After Minnesota Mining v. Chemque
Campbell Chiang
Date posted: 12-29-2003
The Supreme Court established a two-part test for determining when an invention is "on sale" under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be "ready for patenting" and subject of a "commercial offer for sale." In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a "commercial offer for sale."
Topic: Patents & Technology
The “Commercial Offer for Sale” Standard After Minnesota Mining v. Chemque
Campbell Chiang
Date posted: 1-5-2004
The Supreme Court established a two-part test for determining when an invention is "on sale" under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be "ready for patenting" and subject of a "commercial offer for sale." In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a "commercial offer for sale."
Topic: Patents & Technology
Investigating Terrorism: The Role of the First Amendment
Amy E. Hooper
Date posted: 1-14-2004
This iBrief discusses the constitutionality of a government policy enacted shortly after September 11, 2001 that denies public access to deportation hearings in cases allegedly bearing some connection to terrorism. This ibrief discusses two Circuit Courts of Appeals decisions on the issue and argues that this policy is unconstitutional.
Topic: Media & Communications
UK’s Implementation of the Anti-Circumvention Provisions of the EU Copyright Directive: An Analysis
Aashit Shah
Date posted: 1-22-2004
The debate surrounding utilization of technological protection measures to secure copyrighted works in the digital arena has raised many an eyebrow in the past few years. Technological protection measures are broadly bifurcated into two categories: access control measures such as cryptography, passwords and digital signatures that secure the access to information and protected content, and copy control measures such as the serial copy management system for audio digital taping devices and content scrambling systems for DVDs that prevent third parties from exploiting the exclusive rights of the copyright owners. Copyright owners have been wary of the digital environment to exploit and distribute their works and therefore employ technological protection measures, whereas consumers and proponents of "free speech" favor the free and unrestricted access, use and dissemination of copyrighted works digitally.
Topic: Copyrights & Trademarks