1,735 research outputs found
Safe Harbor for the Innocent Infringer in the Digital Age
The primary goal of this Article is three-fold: (1) to explore the role of the innocent infringer archetype historically and in the digital age; (2) to highlight the tension between customary and generally accepted online uses and copyright law that compromise efficient use of technology and progress of the digital technologies, the Internet, and society at large; and (3) to offer a legislative fix in the form of safe harbor for direct innocent infringers. Such an exemption seems not only more efficient but also more just in the online environment where unwitting infringement for the average copyright consumer is far easier than ever to commit, extremely difficult to police, and often causes little, if any, cognizable market harm.
Safe Harbor was judged one of the best law review articles related to entertainment, publishing and/or the arts published in the 2013-14 academic publishing cycle and selected for inclusion in the 2014 edition of the Entertainment, Publishing and the Arts Handbook, an anthology published annually by Thomson Reuters (West)
The Intermediary Liability Conundrum : Are Safe Harbors Useful?
Whether online intermediaries should be held responsible for user-uploaded content is one of the earliest conundrums of Internet law. Since the 1990s, the prevailing model has been to exempt online intermediaries from liability for third-party infringements as long as they conform to certain conditions. Recently, calls to expand intermediary liability has intensified both in the U.S. and the EU. Adversaries of the safe harbor regulation claim that the current laws have gone too far and favor intermediaries unfairly.
The aim of the thesis is to analyze the validity of the calls to abolish safe harbors. The intent is to do so by investigating how the safe harbors work, why they exist, how they will develop in the future, and what to consider if the procedures were to be changed. The methods chosen are doctrinal research and comparative analysis. The reason for using both methods is that it will provide a deeper understanding of why safe harbors exist and additional arguments for the analysis. I have chosen to compare the U.S. and the EU intermediary liability regimes because of the vast amount of information available, their close historical ties, and the relevance of respective markets.
The question of whether intermediary liability safe harbors should exist or not boils down to which fundamental rights the legislators want to emphasize and protect. All of the involved parties have their own set of competing interests and any decision is going to favor someone. There are three ways to go about changing how intermediary liability works. The first option is to provide intermediaries complete insulation from liability, the second option is to introduce safe harbors that are conditional or to adjust existing conditions, and the third option is to introduce strict liability to intermediaries. The first two options already exist in the U.S. and are proven to work. The procedures are not flawless, but at least they conform to fundamental rights fairly well. Introducing strict liability to intermediaries would more than likely lead to ex-ante content blocking, thus violating freedom of expression to an unjustifiable extent
Copyright Arbitrage
Regulatory arbitrage—defined as the manipulation of regulatory treatment for the purpose of reducing regulatory costs or increasing statutory earnings—is often seen in heavily regulated industries. An increase in the regulatory nature of copyright, coupled with rapid technological advances and evolving consumer preferences, have led to an unprecedented proliferation of regulatory arbitrage in the area of copyright law. This Article offers a new scholarly account of the phenomenon herein referred to as “copyright arbitrage.”
In some cases, copyright arbitrage may work to expose and/or correct for an extant gap or inefficiency in the regulatory regime. In other cases, copyright arbitrage may contravene one or another of copyright’s foundational goals of incentivizing the creation of, and ensuring access to, copyrightable works. In either case, the existence of copyright arbitrage provides strong support for the classification (and clarification) of copyright as a complex regulatory regime in need of a strong regulatory apparatus.
This Article discusses several options available for identifying and curbing problematic copyright arbitrage. First, courts can take a purposive, substantive approach to interpretations of the Copyright Act. Second, Congress can empower a regulatory agency with rulemaking and enforcement authority. Finally, antitrust law can help to curb the anticompetitive effects of copyright arbitrage resulting from legislative capture
Three Reactions to MGM v. Grokster
It was prescient of the Michigan Telecommunications and Technology Law Review to have organized a conference to discuss the Supreme Court\u27s decision in Metro-Goldwyn-Mayer, Inc. v. Grokster, Inc. As the articles in this issue reveal, commentators have had somewhat mixed reactions to the Grokster decision. Perhaps I am the most mixed (or mixed up) about Grokster among its commentators, for I have had not just one but three reactions to the Grokster decision. My first reaction was to question whether MGM and its co-plaintiffs really won the Grokster case, or at least won it in the way they had hoped. This question arose because MGM had propounded several theories on which it had hoped to win the case, and the Court\u27s unanimous decision endorsed none of them. My second reaction was to worry that courts would take too literally the off-handed dicta in Grokster about the relevance of filtering technologies and would impose obligations upon makers of peer to peer and other distribution-enabling software to filter for infringing content, even though filtering technologies cannot do the task well enough to be worth the effort. Conferring with technologists knowledgeable about filtering led me to conclude that filtering technology is unlikely to ever be good enough to achieve the intended goal. My third reaction emerged as I reflected upon various developments in the first year or so after the Grokster decision, which suggested that my fears about court-ordered technology mandates had not been borne out. The safe harbor for technologies with substantial non-infringing uses, established more than twenty years ago in Sony Corp. of America v. Universal City Studios, survived its toughest challenge yet in the Grokster decision, and seems likely to continue to be the default rule for judging secondary liability of technology developers for infringing acts of others for the foreseeable future
The Saga Continues: Secondary Liability for Copyright Infringement Theory, Practice and Predictions
This article begins by outlining the development of secondary liability theory for copyrights, followed by a discussion highlighting the overly-active role the judiciary has played in its development, and closes with addressing the future of secondary liability for copyrights based on its potential application in current litigation
The (Final) Anti-Counterfeiting Trade Agreement (ACTA): Ruthless or Toothless?
This paper will discuss several provisions of ACTA and its intersection with U. S. copyright law. Section II will discuss general provisions of copyright law, section III will address the various international intellectual property law treaties, and section IV will discuss three main areas addressed by ACTA: criminal liability, internet service providers, and technological protection measures. Section IV will also discuss how these areas conflict with or advance U.S. copyright law
Actual Versus Legal Control: Reading Vicarious Liability for Copyright Infringement into the Digital Millennium Copyright Act of 1998
Title 11 of the Digital Millennium Copyright Act of 1998 purports to limit the liability of Internet service providers that have been found vicariously liable for copyright infringement. However, by basing this limitation on the absence of the benefit and control elements of the common law test for vicarious liability, the plain language of Title II, codified at 17 U.S.C. § 512, appears to preclude statutory protection once a court has found a service provider vicariously liable. This Comment argues that courts must read a narrow definition of actual control into 17 U.S.C. § 512(c)(1)(B) in order to preserve the liability limitations of Title I% to avoid structural conflict, and to fulfill legislative intent. This Comment locates actual control in a line of district court cases from the Second Circuit that have been eclipsed by the Ninth Circuit\u27s embrace of legal control. This Comment concludes that an actual-control standard best preserves incentives to monitor for infringement
Record Labels, Federal Courts, and the FCC: Using Uncertainty in Communications Law to Fight Online Copyright Infringement
Illegal downloading continues to plague the music industry. Furthermore, the music industry has little to show for its significant investment in costly, labor-intensive copy-right litigation. Federal courts have been increasingly unsympathetic to copyright holders, refusing to let substantial damages awards in several high-profile cases stand. In addition, the Southern District of New York recently ruled that YouTube should not be held liable for widespread copyright infringement on its site in spite of substantial evidence that YouTube had actual knowledge of the infringement. Meanwhile there is great uncertainty in the world of communications law. After the D.C. Circuit thwarted the Federal Communications Commission’s (“FCC”) efforts to stop Comcast from “throttling,” or purposefully slowing, peer-to-peer file-sharing traffic on its network, the FCC drafted a new set of regulations for broadband providers. The new regulations have been challenged from every angle, and will likely be tied up in litigation for years. These legal developments have coincided with the availability of new, legal, online music services such as Spotify and Google Music. This Comment argues that music industry groups such as the Recording Industry Association of America should take advantage of the uncertainty in communications law and attempt to shift consumer behavior away from illegal downloading and toward legal online music services by engaging in a lobbying effort designed to convince Internet service providers to resume throttling peer-to-peer file-sharing services
3D Printing and U.S. Copyright Law
This article explores how 3D printing fits within US copyright law. US copyright law provides a well-developed general framework for the protection of creative designs, whether fixed in CAD files or 3D objects. Enforcement of copyright protection in this industry faces some of the same challenges encountered by other content industries whose works were disrupted by the digital revolution. Nonetheless, 3D printing brings distinctive issues. Although grounded in statute, US copyright law has a rich common law tradition that affords courts significant leeway in adapting doctrines to new and unforeseen technological developments. This capacity is reinforced by the range of business strategies available for confronting appropriability challenges. Thus, this article surveys the 3D printing terrain on three levels: (I) copyrightability of CAD files and 3D objects; (II) enforcement challenges; and (III) business strategies. The ultimate governance regime will depend upon the business strategies that copyright owners and disruptive businesses pursue, the extent to which courts adapt copyright doctrines to new and unforeseen challenges, and the Copyright Office’s exemptions under the DMCA’s anti-circumvention provisions
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