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Intellectual Property

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- IP Notes

The Congress shall have 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 . . .
-- Article I, Section 8, U.S. Constitution

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.
- Jack Valenti, Then President of the Motion Picture Association of America, before the U.S. House of Representatives Subcommittee on Courts, Civil Liberties and the Administration of Justice, (1982).

Pop quiz! What was the first legal conflict on the Internet? If you paid attention to the headlines, what might come to mind is censorship and the Communications Decency Act. However, outside the criminal charges brought in relationship to the Morris Worm, the first great legal conflicts on the Internet dealt with Intellectual Property (IP), not censorship. [Netcom] If the Internet can be said to be a "disruptive technology," it disrupted intellectual property like a freight train going through a house of cards factory. While effective and decisive Congressional action responsive to other legal concerns might be lacking (see Gambling), Congressional action to protect copyright holders has been consistently swift and direct. Congress has passed the No Electronic Theft Act, the Digital Millennium Copyright Act, and the AntiCybersquatters Protection Act; the amount of additional legislation that has been proposed by Congress has been bountiful.

The other IP (not Internet Protocol) has been a central driver of legal confrontation in Internet arenas. The beginning was in 1994 with the Scientology litigations. [Netcom] [FactNet] IP came to dominate DNS policy, leading to a preoccupation with trademark rights over all other interests. Feeling overwhelmed by the new digital world, it led copyright owners to push for a radical revision of copyright law: the Digital Millennium Copyright Act. It created a conflict between traditional content creators and new radio stations, webcasters, who defied "scarce radio spectrum" and anemic top forty programming, to bring true alternative programming to unique audiences anywhere at any time. Finally, it created a tension for digital rights management, with the broadband infrastructure vendors screaming that killer content was needed to drive broadband deployment and content owners screaming that content would not be released until there was some assurance that the gigantic copying machine known as the Internet, also known as such peer-to-peer applications as Napster, was tamed and controlled. [Napster]

Derived From: - Intellectual Property, What is It? StopFakes.gov

"Intellectual property is any innovation, commercial or artistic, or any unique name, symbol, logo or design used commercially.

Intellectual property is protected by

  • patents on inventions;
  • trademarks on branding devices;
  • copyrights on music, videos, patterns and other forms of expression;
  • trade secrets for methods or formulas having economic value and used commercially."

Economic Impact of Infringement

Derived From: Intellectual Property: Observations of efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods, GAO-10-423 (April 12, 2010)

According to experts and literature GAO reviewed, counterfeiting and piracy have produced a wide range of effects on consumers, industry, government, and the economy as a whole, depending on the type of infringements involved and other factors. Consumers are particularly likely to experience negative effects when they purchase counterfeit products they believe are genuine, such as pharmaceuticals. Negative effects on U.S. industry may include lost sales, lost brand value, and reduced incentives to innovate; however, industry effects vary widely among sectors and companies. The U.S. government may lose tax revenue, incur IP enforcement expenses, and face risks of counterfeits entering supply chains with national security or civilian safety implications. The U.S. economy as a whole may grow more slowly because of reduced innovation and loss of trade revenue. Some experts and literature also identified some potential positive effects of counterfeiting and piracy. Some consumers may knowingly purchase counterfeits that are less expensive than the genuine goods and experience positive effects (consumer surplus), although the longer-term impact is unclear due to reduced incentives for research and development, among other factors.

Three widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies. Generally, the illicit nature of counterfeiting and piracy makes estimating the economic impact of IP infringements extremely difficult, so assumptions must be used to offset the lack of data. Efforts to estimate losses involve assumptions such as the rate at which consumers would substitute counterfeit for legitimate products, which can have enormous impacts on the resulting estimates. Because of the significant differences in types of counterfeited and pirated goods and industries involved, no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts. Nonetheless, research in specific industries suggest that the problem is sizeable, which is of particular concern as many U.S. industries are leaders in the creation of intellectual property.

Laws

Federal Agencies: Intellectual Property law fall under the jurisdiction of

  • Department of Commerce
  • HHS
  • DHS
    • Secret Service
    • Customs and Border Protection
    • US Customs
    • US Customs Cybersmuggling Center
  • FBI
  • USDOJ (Computer Crime Section)
  • ITC
  • State Department
  • USTR
  • Copyright Office, Library of Commerce
  • US Patent and Trademark Office

Internationally: World Trade ORganization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

Gen Proceedings

Status Proceeding Resource
Comments Due June 19 The Copyright Office of the Library of Congress is requesting comment on new proposed regulations that set rates and terms for the use of sound recordings in eligible nonsubscription transmissions, such as those that occur over the Internet, and for the use of sound recordings by new subscription services. Fed Reg Notice
Comments Due June 2 The Copyright Office of the Library of Congress is requesting comment on proposed regulations that set rates and terms for the use of sound recordings in eligible nonsubscription transmissions for the 2003 and 2004 statutory licensing period, and for the use of sound recordings in transmissions made by new subscription services from 1998 through December 31, 2004, in addition to the making of ephemeral recordings necessary for the facilitation of such transmissions. The rates and terms do not pertain to the use of sound recordings in digital transmissions of simulcasts of AM and FM radio broadcast programming (including transmissions or retransmissions thereof by third parties), transmissions made by certain noncommercial entities, and small commercial webcasters who elect to operate under an agreement negotiated pursuant to the Small Webcasters Settlement Act of 2002. Fed Reg Notice

Federal Activity

Timeline

Digital Phonorecord Delivery

Section 114(d) of the Copyright Act
Napster
A&M Records, Inc. v. Napster, Inc., (9th Cir. 2001)
MusicNet
Rhapsody
MusicNow
Pressplay

Performance Rights Organizations

  • ASCAP New Media & Internet Licensing Page
  • BMI Licensing: Webcasters
  • SESAC
  • Links

    Papers
  • FAQs
  • Books
    • Bill Rosenblatt, William Trippe, and Stephen Mooney, Digital Rights Management: Business and Technology (M&T Books 2002).
    • Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox (Stanford 2003).
    • The Future of Ideas: The Fate of the Commons in a Connected World by Lawrence Lessig 
    • Digital Copyright : Protecting Intellectual Property on the Internet by Jessica Litman 
    • The Digital Dilemma : Intellectual Property in the Information Age (Nat'L Research Council Editor 2000) 
    • Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity by Siva Vaidhyanathan 
    • Intellectual Property in the Age of Universal Access by Pamela Samuelson 
    • Software and Internet Law by Mark A. Lemley 
    • The Ontology of Cyberspace : Philosophy, Law, and the Future of Intellectual Property by David R. Koepsell 
    • Access Denied : Freedom of Information in the Information Age by Charles N. Davis (Editor), Sigman L. Splichal (Editor) 
    • The Digital Millennium Copyright Act by Marcia K. Wilbur 
    • Computer and Internet Use on Campus: A Legal Guide to Issues of Intellectual Property, Free Speech, and Privacy by Constance S. Hawke 
    • Controlling Voices : Intellectual Property, Humanistic Studies, and the Internet by Tyanna K. Herrington, Jay David Bolter (Foreword) 
    • Intellectual Property in the New Technological Age by Robert P. Merges 

    News
    What Lessig is Up To BT Thinks It Owns the World
    • British Telecom v. Prodigy, OO Civ 9451, Memorandum and Order Granting Summary Judgment (SDNY August 22, 2002) (granting Prodigy's motion for summary judgment ruling that Prodigy through its business activities as an ISP did not directly infringe on BT's "Sargent Patent", did not induce or contribute to infringement by Prodigy subscribers to infringe the Sargent patent by accessing the Internet through Prodigy).
  • Hyperlink patent case fails to click, CNET 8/23/02
  • xCourt Hands BT Setback in Hyperlink Case, Internet News 3/15/02
  • BT opens hypertext case, Guardian 2/13/02
  • 'Hyperlinks' ownership claimed, CNEWS 2/13/02
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