Justification for IP law Natural Law theory Social contract theory What is the constitution’s justification? 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
Kinds of Intellectual Property Copyright Patent Trademark Trade Secret
Copyright What is protected? What rights are provided? How to obtain? Duration? Strength of coverage? Limitations? Penalties?
Fair Use Fair use factors Whether the purpose is commercial or nonprofit, educational, private The nature of the work – factual works receive less protection, creative works, more The amount and significance of the portion used The effect of the use on the potential market (this one is given heavier weight). Sony vs. Universal City Studios*:* Private, noncommercial uses should be presumed fair unless there is realistic likelihood of economic harm to the copyright holder How did Grokster differ?
Patent What is protected? How to get a patent? Duration? Strength of protection? Other requirements? Penalties?
Trademark, Trade Secret What is a trademark? What is a trade secret? What can be covered? How to get it? How to maintain it? What remedies are available if it is revealed? Drawbacks?
Question Is the music industry being hurt by illegal downloads?
Music industry in decline CD sales have plummeted Possible reasons: Illegal downloads There are many more to get music Pandora, youtube There are competing options for entertainment Movies, computer games, …
RIAA lawsuits Penalties up to $150,000 per infraction (Is the penalty in proportion to the harm here?) Offer to settle for $2000 or so Thousands of lawsuits filed Questions about procedural issues in lawsuits have killed them
Copyright Enforcement 1992: Home Audio Recording Act Mandates copy protection on digital audio devices; tax on blank tapes 1997: No Electronic Theft (NET) Act Increased statutory damages for copyright infringement 1998: DMCA Made DRM illegal to circumvent 2000: My.MP3.com put of business My.MP3.com let users listen to their own music from the cloud 2001: Napster forced out of business 2003: RIAA starts suing individual file sharers
Copyright Enforcement 2003: Hollyood sued Kaleidescape DVD jukebox would have let users rip and play their own DVDs 2005: Grokster is shut down New legal principal: “contributory infringement” 2008: Congress passed PRO-IP Act New executive branch, office of IP enforcement; increased penalties; gov’t can sue individuals for IP infringement Gov’t can seize domain names, confiscate equipment, etc 2011: ISPs adopted voluntary “graduated response system” Major ISPs will play greater role in enforcement 2012: MegaUpload takedown, criminal charges
SOPA/PIPA Get at foreign-owned and operated sites: Bar ad networks, payment facilities, search engines Require ISPs to block Seize domain names of foreign companies Criticisms May bypass “safe harbor” protections Threat to innovation, free speech
ACTA MPAA is one of the largest proponents Intent: to export US-style copyright protection around the world Negotiated in secret The most objectionable parts were removed or made into “recommendations” Obama side-stepped the constitution, avoided sending it to the Senate for ratification claiming it is already law Secret negotiations are already underway for the next version
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