News on the Internet

Newspapers are in trouble. Circulation and advertising are down as readers shift from print to online media. Although changing reader preferences and the loss of lucrative classified advertising to online sources are major worries, the news media seems preoccupied with news aggregators and bloggers who distribute news content on the internet without permission. Newspapers are not the only ones worried about the unauthorized distribution of their news on the internet. Financial services companies are unhappy about the distribution of their hot stock recommendations and other content providers seek to control online news ranging from movie schedules to business ratings. Traditional copyright doctrine offers varying degrees of protection for the literary format of the news — broad in scope for the text of news stories, narrower and less certain for smaller expressions like news headlines and leads. Content providers want more. They seek to control the online distribution not just of their literary forms, but of the very facts that are the news itself. The battle is being waged on two fronts. One involves an attempt to extend the traditional scope of copyright beyond the protection of expression into the previously forbidden realm of facts. The second front involves efforts by content providers to enlist the century-old common law tort of misappropriation. The reemergence of the misappropriation tort from the shadow of federal copyright law is somewhat improbable, resting as it does on a single paragraph of legislative history, extracted from an ABA Committee Report, that was directed at a portion of the copyright revision bill that was never actually enacted. Nevertheless, its application to news on the internet has been cheered by many commentators. This Article examines the recent attempts by content providers to gain control over facts through federal copyright law and the common law tort of misappropriation

Dean Harvey Perlman

A tribute to Professor Harvey Perlman and his accomplishments as dean of the University of Nebraska College of Law

Fair\u27s Fair: An Argument for Mandatory Disclosure of Technological Protection Measures

Section 1201(a)(1) of the Copyright Act prohibits the act of circumvent[ing] a technological measure that effectively controls access to a work, including, for example, by-passing password protection or encryption intended to restrict access to paying customers. Section 1201(a)(2) prohibits the manufacture or sale of any technology, product, service, device, component, or part thereof primarily designed for the purpose of circumventing access controls on copyrighted works. Additionally, § 1202(b) prohibits the manufacture or sale of products, devices or services primarily designed to circumvent a technological measure that effectively protects a right of a copyright owner --for example, a technological measure intended to prevent reproduction of a copyrighted work. Both the justification and breadth of the anti-circumvention provisions were quickly challenged. The ban against circumvention devices, for example, can prevent many users from making a fair use of protected works. The problem illustrates a more general threat. A legal prohibition against circumventing the protective measures adopted by copyright owners leaves those owners with virtually absolute control over the terms of use. Technological restrictions backed by the force of law, coupled with contractual restraints imposed on users as a condition of granting access, allow owners to avoid the limitations on their control that have defined the traditional balance of copyright law--limitations like first sale, fair use, and the absence of protection for facts and ideas. Few dispute that the law should be alert to insure adequate incentive to create in the face of new technologies for reproduction and dissemination. However, if the fundamental goal of copyright remains the Progress of Science , as the Supreme Court continues to assure us, leaving copyright owners with complete control over every use of their work is probably not for the best. The courts are not likely to take the lead in preserving an efficient balance between protection and access; poor public policy is not itself unconstitutional. Congress too is unlikely to withdraw or substantially reduce the support it has extended to technological self-help measures through the DMCA. One means of maintaining a reasonable equilibrium between owners and users does remain. The system runs on the users\u27 money. The market for works, if functioning properly, can provide users with the leverage to insure adequate access. If owners wrap their works too tightly, users can decline to buy. However, the power that users can exert through the market depends on the quality of the information they have about the existence and effect of the technological protective measures deployed by owners. Owners should be required to disclose that information as the price for invoking the DMCA\u27s protection against circumvention and circumvention devices. After examining the legal and political background of the anti-circumvention rules, this article analyzes the economics of disclosure and proposes a version of mandatory disclosure that appears consistent with both the objectives of the DMCA and the legitimate expectations of users

Dean Harvey Perlman

A tribute to Professor Harvey Perlman and his accomplishments as dean of the University of Nebraska College of Law

Administering GonaCon\u3csup\u3eTM\u3c/sup\u3e to White-Tailed Deer Via Hand-Injection Versus Syringe-Dart

Immunocontraceptive vaccines have shown some promise for fertility control of white-tailed deer (Odocoileus virginianus) in urban and suburban habitats where traditional methods of population control may not be applicable. Currently, the only contraceptive vaccine approved by the U.S. Environmental Protection Agency for use in white-tailed deer is GonaConTM Immunocontraceptive Vaccine, but it is registered for use via hand-injection only. It has been suggested that remote-delivery of immunocontraceptives would be more cost-effective than hand-injection, but there is the potential for incomplete injection from a syringe-dart. Therefore, the purpose of our research was to: (1) conduct a dart configuration assessment trial to determine the ideal syringe-dart configuration for remote-delivery of GonaCon to white-tailed deer and (2) use the determined syringe-dart configuration in a subsequent trial to evaluate the vaccine efficacy when administered to female white-tailed deer via hand-injection versus syringe-dart. We saw comparable results with regard to vaccine dispersal during the dart configuration assessment and the efficacy trial; syringedart injected deer presented vaccine deposits and reaction sites both subcutaneously and intramuscularly, whereas, hand-injected deer presented vaccine deposits and reaction sites only intramuscularly. One year after administration, 4 of 5 deer treated with syringe-darts were pregnant, compared to 3 of 6 deer that received hand-injections. Anti-GnRH titers were negatively related to pregnancy status. We did not observe a high level of vaccine efficacy with the syringe-dart delivery method we used. Therefore, we recommend further research of syringe-dart delivery of GonaCon with a larger sample size where the vaccine is deployed in a single bolus similar to a hand-injected presentation