2009-2010
Articles
Electronically Stored Information: Balancing Free Discovery With Limits on Abuse
Patricia Groot
Date posted: 2-17-2009
The Federal Rules of Civil Procedure (the Rules) have long sought to limit abuses that developed under the traditional presumption favoring free discovery. The 2006 amendments to the Rules are specifically aimed at curbing abuses associated with electronically stored information (ESI), which has become the basic medium of business communications and has provided businesses with overall productivity benefits. The 2006 amendments introduce a new category of electronic evidence that is "not reasonably accessible" and allow a court to shift the related costs of discovery to the party requesting the information. Cost-shifting, however, creates an incentive for businesses to shelter sensitive data by making it "not reasonably accessible." This iBrief argues that the current tests created by the courts for cost-shifting should be reassessed and should include a benefit-shifting component that offsets business savings from using ESI as a storage medium. Rather than treating ESI as exceptional, the Rules should adopt a uniform approach that curbs abuses of all discovery.
Topic: eDiscovery
Circumventing Authority: Loopholes in the DMCA’s Access Controls
Adam L. Rucker
Date posted: 3-4-2009
In a world where digital pirates freely roam the internet, seemingly plundering at will, the providers of digital content must find a way to protect their valuable assets. Digital fences afford that protection--but not very well. Fortunately (for content owners), 17 U.S.C. §1201, passed as part of the Digital Millennium Copyright Act of 1998, was designed to fill the numerous gaps in those fences by forbidding activities designed to circumvent them. In its present state, however, §1201 does not adequately serve that purpose. Substantial flaws in the language of the statute render it virtually powerless to thwart piracy. If §1201 is to fulfill its intended role (without the need for creative judicial interpretation), it must be amended to rectify the discrepancies between Congress’ supposed intent and the language it chose.
Topic: Copyrights & Trademarks
Spore, DRM, and Pirates: UCITA and Market Realities
Charles Yeh
Date posted: 4-16-2009
The Uniform Computer Information Transactions Act (UCITA) attempts to regulate a nonexistent market failure. Regulators must understand the two market relationships in the software industry, the producer-consumer relationship and the producer-thief relationship, before they can draft effective regulation. Drafting regulations that affect both relationships can lead to market disruptions at best and market failure at worst. An analysis of the two relationships reveals that there has not been a market failure that needs regulating; rather, there is a lag in technology that prohibits proper demarcation between the two market relationships. Regulators should wait for technology to advance before adopting any legislation similar to UCITA.
Topic: Copyrights & Trademarks
Date posted: 6-29-2009
Despite using one of the most sophisticated digital rights management systems currently available, the video game Spore was illegally downloaded approximately 1.7 million times between September and December of 2008, making it the most widely pirated game of 2008 by more than half a million downloads. This iBrief addresses several legal arguments that have been raised against a digital rights management system called "SecuROM," which is widely used by video game companies like Electronic Arts, the publisher of Spore. First, the iBrief discusses the comparisons that have been drawn between SecuROM and the controversial digital rights management technologies previously employed by Sony BMG Music Entertainment. Second, the iBrief addresses the question of whether highly restrictive implementations of SecuROM may be legally circumvented under the Digital Millennium Copyright Act. Third, the iBrief discusses the potential for using the Digital Millennium Copyright Act’s three-year rulemaking procedure to obtain certain exemptions for circumventing systems like SecuROM.
Topic: Copyrights & Trademarks
Commercial Skipping Technology and the New Market Dynamic: The Relevance of Antitrust Law to an Emerging Technology
Jesse Haskins
Date posted: 8-18-2009
Commercial-skipping technology can liberate the consumer and make the television business more competitive. It rose to prominence with the advent of the digital video recorder (DVR), also known as the personal video recorder (PVR). PVRs have helped advertisers reach their target audience more effectively through personalized advertisements, and it has successfully pressured television networks and advertisers to innovate more appealing ways to induce consumers to buy advertised products. But even if this technology fails to enhance the business of television, television networks can still outpace commercial-skipping technology in an arms race. Through competitive pressure, such technology promotes innovation, progress, and a more competitive market without posing an undue burden on the entertainment industry.
Topic: Copyrights & Trademarks
Experimenting With Territoriality: Pan-European Music License and the Persistence of Old Paradigms
Ana Eduarda Santos
Date posted: 9-22-2009
This article tells the story of what could have been an interesting and important shift in our approach to territoriality in the digitalized world. Europe had the chance to be the cradle of an unprecedented copyright experience – the creation of a quasi pan- continental license in the music field – but it might have lost that opportunity in the midst of non-binding recommendations and resolutions. This article argues this loss is due to the overreaching persistence of old paradigms, namely the principle of territoriality.
Topic: International
The Future of “Fair and Balanced”: The Fairness Doctrine, Net Neutrality, and the Internet
Sasha Leonhardt
Date posted: 10-26-2009
In recent months, different groups--pundits, politicians, and even an FCC Commissioner--have discussed resurrecting the now-defunct Fairness Doctrine and applying it to Internet communication. This iBrief responds to the novel application of the Doctrine to the Internet in three parts. First, this iBrief will review the history and legal rationale that supported the Fairness Doctrine, with a particular emphasis on emerging technologies. Second, this iBrief applies these legal arguments to the evolving structure of the Internet. Third, this iBrief will consider what we can learn about Net Neutrality through an analogy to the Fairness Doctrine. This iBrief concludes that, while the Fairness Doctrine is not appropriate to use on the Internet in its present form, the arguments for the Doctrine could affect the debate surrounding Net Neutrality, depending on how the Obama Administration implements Net Neutrality.
Topic: Media & Communications
Date posted: 11-11-2009
This iBrief will present a hypothetical network that allows dissidents to transfer information outside the watchful eye of an oppressive government. It will argue that because a network operator meets the requirements of the safe harbor of section 512(c) of the Digital Millennium Copyright Act, the hosts of the network are immune from any vicarious copyright liability.
Topic: Copyrights & Trademarks
Lenz v. Universal Music Corp. And the Potential Effect of Fair Use Analysis Under the Takedown Procedures of §512 of the DMCA
Kathleen O’Donnell
Date posted: 11-25-2009
The notice and takedown/putback procedures in §512 of the Digital Millennium Act fail to adequately protect the rights of individuals who post content on the internet. This iBrief examines the notice and takedown/putback procedures and Judge Fogel's decision in Lenz v. Universal Music Corp., which requires a copyright owner to conduct a fair use evaluation prior to issuing a takedown notice. This iBrief concludes such a requirement is an appropriate first step towards creating adequate protection for user-generated content on the Internet.
Topic: Copyrights & Trademarks
The International Trade Commission: Potential Bias, Hold-Up, and the Need for Reform
William Dolan
Date posted: 12-4-2009
The International Trade Commission (ITC) is an alternate venue for holders of U.S. patents to pursue litigation against infringing products produced abroad and imported to the United States. Because the ITC may only grant injunctive relief, it has awarded injunctions in situations where there may have been better and more efficient remedies to the infringement available through litigation in federal district court. The increased likelihood of injunctive relief bolsters the position of patent holders against a wide range of producers in royalty negotiations and can harm the end consumers through a process known as "patent hold-up." There are currently sweeping and aggressive proposed reforms to reduce this harm to consumers. This iBrief suggests that the optimal reforms would not change the overall structure or scope of the ITC or its jurisdiction. Rather it would harmonize the substantive law, available defenses for respondents, and requirements for injunctive relief between ITC proceedings and litigation in federal district court.
Topic: International
Antitrust, Innovation, and Uncertain Property Rights: Some Practical Considerations
Dean V. Williamson
Date posted: 1-27-2010
The intersection of antitrust and intellectual property circumscribes two century-long debates. The first pertains to questions about how antitrust law and intellectual property law interact, and the second pertains to questions about how parties can exploit property rights, including intellectual property rights, to exclude competitors. This iBrief finesses these questions and turns to practical considerations about how innovation and intellectual property can impinge antitrust enforcement. This iBrief develops two propositions. First, although collaborative research and development has often been and remains unwittingly misunderstood, what is understood about it is consistent with the long- standing observation that antitrust has rarely interfered with collaborative ventures. Second, shifting focus from “intellectual property rights” to “uncertain property rights” makes it easier to understand what innovation and intellectual property imply for enforcement processes. Both intellectual property and tangible assets imply the same processes, but the boundaries of intellectual properties may be uncertain and may, in turn, allow parties to game enforcement processes in ways that would not be feasible in antitrust matters that principally feature tangible assets. Even so, uncertain property rights might not frustrate enforcement processes as the antitrust authorities may yet be able to factor parties’ strategic behaviors into the design of antitrust remedies.
Topic: Patents & Technology