1. MM 450: Issues in New Media Theory Intellectual Property in the Digital Age Ed Lamoureux, Ph. D. Day 2

2. Six key changes (in addition to digital being what it is) So? After 1976/1988, no copyright (re)registration Copyright Extension Act of 1998 added twenty years DMCA contains anti-circumvention requirements A number of court cases have validated “click through shrink wrap agreements.” DRM looms large. Politicians don’t like to get involved/there’s little or no “user law.”

3. “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” [to what degree does the regime adhere to the principles herein?] The Clause

4. It’s not just lay people who are outside of the content industries and who struggle. There are MAJOR concerns on the part of libraries and other “conservators” of our intellectual culture as to how current and developing laws effect the practices of collecting and protecting our cultural heritage [can we trust Google with solving this? Any idea very long the Feds take?— Section 108 as example]

5. Fair Use –Four Factors: Purpose and character of the work Nature of the “fair” use Amount of the copyrighted work used Effect of taking the work –Examples: Teaching  News Reporting Criticism  Scholarship Comment  Research

6. Quick review of IP categories

7. Copyright Applies to literal expression (not to the underlying concept/idea). The term is now set at the life of the author plus 70 years (the extension was just upheld in Eldred). Original Works of Authorship: –Literary, Dramatic, Musical, Artistic Gives exclusive rights to: –Reproduce –Distribute –Make derivative works –Publicly perform/display works A copyright is established when the author fixes the work in a tangible medium of expression –Pen to paper; Musical notes to sheet; material to digital file Additional rights (ability to sue for damages) follow with registration and display of the symbol. (Submit Form, $30.00, copy to US Copyright Office).

8. Liabilities for infringement –Penalties could include: Fines not less than $750 or more than $30,000 Fines up to $150,000 for willful infringement Actual damages and any profits made by infringement

9. Trademarks Trademark: Protecting the marks/symbols of identity for representational clarity. Identifying word or logo (can also be a color, sound, package shape, or smell) Public Use In Commerce In state, region, or national Term: 10 years, renewable E.g. Clorox, Kodak, Ivory

10. Patents Patent: utility/design/plant: protecting inventions and discoveries. Originally (the Constitution) treated with copyright. Soon thereafter, split out. –New, useful, not obvious device –Disclosure to PTO –20 year exclusivity –Prevents others from making, selling, using –Does not “guarantee” that the holder can! In American law, patents are only assignable to identifiable entities (people & corporations). This effects the way(s) we treat “native” people and their “stuff”

11. Trade Secrets Not “registered” anywhere. Information Economic value Not generally known Reasonable efforts to maintain secrecy

12. Content Torts Defamation Invasion of Privacy Right of Publicity

13. Defamation False Statement of Fact Causing damage to reputation –Per Se Commission of crime Disease Unfitness or lack of integrity in office or employment Inability in trade or profession

14. Invasion of Privacy False light Intrusion into the seclusion of another

15. Rights of Publicity Right to control one’s image Based on state statutes California and New York lead the way Illinois also has a statute

16. We will also examine: The Teach Act (adjusts fair use to the distance learning environment) Peer to peer file sharing, works made for hire, url commerce (generally associated with copyright law) Trade dress (associated with trademark law) Protection of computer software (usually most associated with patent law) Unfair competition legislation (usually associated with trade secret law) International IP (all of the boxes, across many lands and systems) IP law in virtual environments.

17. McLeod’s Preface: Look at some of the “turns” 1.The fact that he could trademark “freedom of expression” is remarkable. But there are so many filings, the system is overloaded such that mistakes, oversights, and inappropriate decisions abound. 600,000 copyright registrations, fiscal 2001. 296,000 trademark filings. 325,000 patent applications. 2.A reputable IP lawyer took the case when McLeod wanted to sue over the use of the phrase... And produced a C&D letter. 3.A reporter “picked up” the story, reported it, and ran it. 4.The paper would not give McLeod permission to reprint the article, even in the context of a scholarly textbook. 5.The “chilling effect” of the threat of litigation can be enough to limit legitimate distribution. Even in the absence of court-authorized C&D, the lawyers’ action alone can chill. Chilling Effects ClearinghouseChilling Effects Clearinghouse

18. McLeod, Chapter 1: The private ownership of culture Important claim: Like all property law, IP law reinforces a condition whereby individuals and corporations with greater access to capital can maintain and increase unequal social relations. Corporations are privatizing culture, and in Bollier’s words, taking over the commons.

19. Industrialization and Privatization of Culture As societies become more focused on information (increasingly, the “goods” of our age), capitalism heads toward privatizing these means of production. This commodification moves that which had been held in the Commons, into private ownership, then applies the legal protections afforded property, with the effect of locking out the common person. IP owners develop “monopolies over public meaning” as they increasingly own the means for mediating all meaning transactions. The communication in our culture is intertextual-- recombinant by nature. But the privatization and commodification (and the IP law that supports them) fights against this intertextuality, seeking claims for individualized genesis and ownership.