Contemporary Intellectual Property, Licensing & Information Law

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.

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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. 

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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.

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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.

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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.

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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.

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Who should derive revenue from remote DVR systems?  According to a panel of the Second Circuit Court of Appeals Cartoons case, the revenue should not go to the content providers.  This decision, grounded in three very narrow interpretations of the Copyright Act, works a shift of potentially significant revenue away from content providers.  Hopefully, it will be challenged and reversed on rehearing.

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Some courts mistakenly view transformative use as merely using a work in a way different from that which the copyright owner currently does.  The true meaning is that transformative use is a use that transforms portions of the original into an entirely new work that does not simply supersede the original in a market or use to which the original may not yet have been applied.

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The answer should be when a copy is placed (distributed) into an environment from which third parties are invited and expected to acquire their own copies by downloading or otherwise.

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The Supreme Court in Quanta Computer, Inc. v. LG Electronics, Inc., 2008 WL 2329719, 86 USPQ2d 1673 (US 2008)  confirmed both the importance of patent exhaustion as a doctrine and the appropriate limitations of that doctrine – the doctrine does not apply to transactions that are conditional in nature.  That means, simply, that the terms of a contract determine when or if exhaustion or first sale occurs.  That is how it should be.

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I hope not, but that is one risk created by the Supreme Court’s decision in the Ebay case and by the actions of some courts who have denied permanent injunctions in successful infringement cases.  But the fact that a permanent injunction does not issue after a judgment of infringement does not mean that the infringer (by losing the case) obtains a right to use the patent owner’s property in the future.  It simply means that the court declined to add the coercive force of an injunction to the statutory right to exclude as to future infringing conduct.

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No.  At least not according to three judges of the Second Circuit.  And as a result, one company’s valuable market estimates expressed in numerical form were subject to comprehensive misappropriation by a competitor.  But the court allowing this result forgot that numbers can be as expressive as words and sometimes are much more communicative.

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The Supreme Court has accepted cert in the LG Electronics case.  The issue involves patent exhaustion doctrine.  This is an opportunity for the Court to affirm the right of a patent (or copyright) property owner to control the terms on which its invention or work is provided to the public – by license or sale.  But unless the rights-owner community pitches in, the Court may get it wrong.

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I have accepted the interim deanship at the University of Houston Law Center. I am eleated at the opportunity this creates. With the help of others, this will be an exciting time. I attach my first thoughts.

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The U.S. Supreme Court rendered its much-anticipated ruling in Ebay v. Merchexchange and the U.S. remains safe for property rights, although more complex. The Court held that injunctions are an appropriate remedy for infringing a patent, but not in all cases.

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No, not unless the copyright owner permitted or invited that. The idea that downloading a file is permitted because it is so easy on Internet is simply wrong. Downloading is copying and infringement. Indeed, it can have massive adverse effects on copyright owners.

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The Supreme Court in Grokster established an action for "inducing" copyright infringement. This changes the context of debate between "rights enforcers" and "rights restrictors" and benefits protection of property rights. But the rule raises questions about its scope and how it affects other relationships.

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The inevitable lawsuit has been filed against Google. The Authors' Guild and others assert in the complaint that the Google Print Project infringes their copyrights. That lawsuit should succeed. As portrayed in the statements of the company, the Google project broadly infringes the copyrights of numerous companies and individuals for Google's own commercial purposes.

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In a world that enables rapid and widespread duplication and transfer of information, law needs to adjust to preserve and protect social values and legal rights. All of those that provide incentives for the creative works that have contributed to the explosion of works that drives the information age. That being said, there are a large number of people who apparently believe that ownership of a copyright should mean relatively little when compared to the desire to allow virtually anyone to copy and distribute a work with or without permission if that is made possible by new technology. These people are arguing for immediate gratification at a sacrifice of long-term social benefits.

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In Davidson & Associates v. Internet Gateway, the Court of Appeals held that a shrinkwrap license that barred reverse engineering was not preempted by federal fair use law. The court thus joined the chorus of courts that enforce licenses for software and data, regardless of whether the terms of those licenses match limitations in copyright law. These courts make the distinction between property law on one hand, and contract law on the other. While reverse engineering is sometimes protected by a defense to a claim copyright infringement, the possible existence of that defense to a claim of infringement of a property right does not preclude an agreement to not reverse engineer.

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