Contemporary Intellectual Property, Licensing & Information Law

Millions of dollars and thousands of hours have been spent during the last decade worrying about how to deal with free and open source software licenses. This leads me to ask ‘what makes these licenses different in a way that attracts all of this attention, both negative and positive?’

Licensing Law Issues
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A while ago, I commented about the misreading that courts were doing with respect to fair use, especially with respect to so-called “transformative use.” Maybe they heard, but at least they have begun to figure it out. The worm may have begun to turn.

Intellectual Property
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Online aggregators, site operators and search engines are in a seemingly endless conflict with content providers and rights owners. This extends to trademark law. The confrontation relates to deciding what obligations aggregators (and others) have to police and prevent advertising and sale of counterfeit products or services through their systems. A recent Second Circuit case leaves one pondering the answer where at least some of the advertised products or services from third parties are counterfeits.

Intellectual Property
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In light of the many changes in privacy, intellectual property, and e-commercial law that have occurred in the past decade, standard forms and model agreements that were first brought into existence only a relatively short time ago should be re-examined to make them consistent not only with the demands placed by new law, but also with the new language and approaches that have become central to modern practice.

Licensing Law Issues
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One clear message of intellectual property law is that mere possession, or even ownership, of a product or a copy does not vitiate the rights-owner’s interest in and right to control use or disposition of the product or copy. First sale doctrine carves out a very limited exception to this.

Intellectual Property , Licensing Law Issues
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Merely posting a work online does not relinquish all rights. As in other environments, merely placing property in public does not release property rights. The Internet context, however, may indicate that some actions with respect to the work are implicitly permitted. 

Intellectual Property , Licensing Law Issues
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The Google Book Settlement (GBS) would give Google unprecedented power over hundreds of thousands of copyright owners and control of an asset that may become essential to 1) book publishers, 2) book authors, and 3) any entity that desires to operate a search or archive function regarding published books. The Settlement should not be approved unless it ensures all competitors and others access and fairly protects the copyright owners who were not represented at the “settlement” discussions and whose property is being stolen.

Intellectual Property , Licensing Law Issues
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Many have asked my opinion of the Google Settlement. I join the broad opposition to the “settlement”: This is a bad deal for everyone other than for Google (which will become an entrenched monopoly). It is also bad precedent, taking legislative prerogatives, the property rights of millions of people, and important commercial choices, and placing them in the hands of a few lawyers, a few companies, non-representative organizations, and a judge.

Intellectual Property , Intellectual Property
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Amid the information explosion brought on by digital technology, some important, content industry business models are failing. Indeed, we are in the midst of what may be a failure of some of business models of content industries such the traditional newspaper industry; significant economic stress is also being placed on other content-oriented industries.

Intellectual Property
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DMCA Section 512 gives copyright owners an efficient means of responding to online infringements and provides a safe harbor protection for online providers.  But some courts suggest that “good faith” in sending a take-down notice may require the copyright owner to evaluate whether the online copying is fair use, these decisions undermine the notice and take down system.

Intellectual Property
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