P2P File-Sharing: What the Supreme Court Has an Opportunity to Consider
Margo E. K. Reder When the United States Supreme Court hears Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (04-480) on March 29th, it has an opportunity to consider for the first time, the rights, responsibilities and liabilities of p2p network creators and their users, the content industry, and ISPs. Over 25 of the world’s largest entertainment conglomerates joined together in petitioning the Supreme Court for a grant of certiorari. Petitioners characterize this case as “one of the most important copyright cases ever to reach this Court. Resolution of the question presented here will largely determine the value, indeed the very significance, of copyright...
The Disruption of the U.S. Constitutional Symmetry of Intellectual Property to Gain Conformity with an International Property Framework: A Road to a Global Market or a Tripping Point to the Gradual Collapse of the U.S. Economy?
John C. Hughs In a spectrum of governments that range from totalitarian (dictator or communism) to tribal (without any central government), there is a unique form that provides a symmetrical balance between the government and the independent inventor; this symmetrical balance produces technological advancement. Once this symmetrical balance is discovered, it allows independent inventors to have secure and unchangeable protection from the federal government that facilitates the courage and mentality to take risks of time, effort and wealth. The willingness of free inventors to take a chance on the free market without government intervention but with inventor controlled government exclusionary...
Been Deep Linked? Apparent Authority Might Link You to Liability
Tan Pham Current trends in trademark law have not met the issue of deep linking with open arms. To date, there is a dearth of cases that touch on deep linking and trademark infringement. Cases such as Ticketmaster Corp. v. Tickets.com dismissed claims of deep linking as trademark infringement with little explanation, simply stating that deep linking itself is not a trademark violation absent “confusion of source.” Yet, there is no case to set the boundaries at the other end of when deep linking would be trademark infringement; it can be implied then that the traditional tests of likelihood of confusion would most...
The Best Offense Is a Good Defense: How the Washington [NFL team] Overcame Challenges to Their Registered Trademarks
Lynette Paczkowski Editors Note: This article contains a racial slur the IPTF does not support. Discussion of the slur is in a purely academic context. Please direct any comments or questions to bciptf@gmail.com In 1999, the Trademark Trial and Appeal Board (“TTAB”) decided Harjo v. Pro-Football, Inc., in which a group of Native Americans (the “Petitioners”) alleged that the term “Redskin(s)” was a pejorative, derogatory, degrading, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation for a Native American person; the marks owned by Pro-Football, Inc. (“Pro-Football”), were offensive, disparaging and scandalous; Pro-Football’s use of the marks offended the petitioners and other...
Foreseeability as a Bar to the Doctrine of Equivalents
Jeremy T. Marr Several opinions in these cases suggest that a patentee should not be able to invoke the doctrine of equivalents to obtain protection from equivalents that one skilled in the art would have reasonably foreseen before the patent issued. Federal Circuit Judge Rader, in particular, is a strong advocate of such a “foreseeability bar.” The United States and the Institute of Electrical and Electronics Engineers (IEEE) also advanced the idea in their amici briefs to the Supreme Court in Festo Corp. v. Shoketsu Kinzoku Kogyu Kabushiki Co., the Court’s latest case involving the issue. The Court’s opinion in...
Narrowing the Definition of an Interactive Service Provider Under § 230 of the Communications Decency Act
Miree Kim Congress enacted § 230 of the CDA in response to two cases in the 1990s that set forth contrasting standards for defamation liability in suits against ISPs related to users’ activity on the Internet. In 1991, the United States District Court for the Southern District of New York concluded that CompuServe, an ISP, was not liable for defamation because it simply enabled users to access the Internet. In 1995, the New York Supreme Court held that Prodigy, which provided a service comparable to CompuServe’s, should be held liable for defamation. Section 230 reflects Congress’s concern that imposing liability...
For Sale Signs in Cyberspace: Whether Federal Rule of Evidence 408 Should Be Adapted to the Uniform Dispute Resolution Policy for Internet Domain Names to Bar Evidence of Offers to Settle from Arbitration Proceedings
R. Jonas Geissler In 1996, Panavision International, L.P., demanded that Dennis Toeppen stop using the domain name panavision.com because it was identical to the Panavision trademarked name. Toeppen replied that he had a right to the domain name, which he had registered with Network Solutions, Incorporated. If your attorney has advised you otherwise, he is trying to screw you. He wants to blaze new trails in the legal frontier at your expense. Why do you want to fund your attorney’s purchase of a new boat (or whatever) when you can facilitate the acquisition of ‘PanaVision.com’ (sic) cheaply and simply instead? This article...
What a Local Internet Company Can Do About Legal Uncertainty in Cyberspace: A Policy Proposal on How to Deal with the International Jurisdictional, Judgment Enforcement, and Conflict of Law Problems Posed by the Internet
Javier Beltran Commissioner Mozelle W. Thompson leads the U.S. delegation to the particular committees of the Organization for Economic Cooperation and Development currently working on international e-business guidelines in their attempts to overcome “the differences between many European countries’ systems of law and our own […] in developing consensus of difficult issues like choice of law and jurisdiction.” Accordingly, for the purposes of this very presentation, this project will first focus specifically on what domestic internet companies should know about jurisdiction, enforcement of judgements, and conflict of law issues in cyberspace when a dispute arises outside of the contractual sphere....
Does Intermediate Copying of Computer Software for the Purpose of Reverse Engineering a Non-Infringing Product Infringe the Copyright in the Software?
Robert V. Donahoe Software developers have successfully applied the affirmative defense of fair use to defeat claims that this intermediate copying violated the owner’s copyright in the computer programmer. Courts have found the equitable nature of the fair use defense useful in analyzing claims of computer program copyright infringement because the functional elements are unintelligible unless the object code is decompiled. In Sony v. Connectix, 203 F.3d 596 (9th Cir. 2000), the Ninth Circuit applied the fair use doctrine to further expand the ability of computer software developers to legally make intermediate copies of computer software for the purpose of...
Why Domain Names Are Not Generic: An Analysis of Why Domain Names Incorporating Generic Terms Are Entitled to Trademark Protection
Sarah E. Akhtar As of the date of this paper, none of the previously listed companies have attained federal registration of their service marks. According to the results of a trademark search conducted on December 17, 1999 using Thomson & Thomson, both DRUGSTORE.COM and VITAMINS.COM are the subjects of pending applications in the United States Patent and Trademark Office (“USPTO”). PETSTORE.COM had not yet filed an application for registration. However, under new office policies, the USPTO may refuse registration to each company’s “domain name trademark” on the grounds that it is generic. While the USPTO follows traditional trademark law for determining whether any trademark can obtain...