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Abstract:
All good 'cyberlawyers' know that in the late 1990s, legal and regulatory measures were adopted, both at the domestic and international level to address the then-growing problem of 'cybersquatting': that is, the registration of often multiple domain names corresponding to valuable corporate trademarks with the intention of extorting high prices from the trademark owners for transferring the names to them. Since 1999, the Uniform Domain Name Dispute Resolution Policy ('UDRP') in particular, complemented by the Anti-Cybersquatting Consumer Protection Act ('ACPA'), has been very successful in combating this practice. Unfortunately, since the late 1990s, there has been little movement towards developing a comprehensive system for domain name dispute resolution outside the cybersquatting area. Little thought has been given to other forms of domain name disputes that are not so well served by the UDRP and ACPA. Examples of these kinds of disputes include certain complaints involving personal names and cultural/geographic place names, as well as disputes involving contests between two legitimate trademark holders. This Article suggests the development of a new classification scheme for different types of Internet domain name disputes outside the 'bad faith' cybersquatting context. This new classification scheme highlights both the fact that the current legal and regulatory framework is focused on only a narrow class of domain name disputes, and that the policies underlying this framework are not suited to other categories of domain name disputes. The article further identifies ways in which new solutions could be developed that are better suited to domain name complaints outside the cybersquatting context and that more appropriately reflect emerging social norms about Internet usage and domain name registration.

Internet domain name, trademark, cybersquatting, WIPO

Abstract:
The information age calls for new legal and policy approaches to the ways in which we deal with information. Previous moves in this area have tended to center around developing a 'cyberlaw' or 'Internet law'. This has involved largely piecemeal attempts to gather together miscellaneous legal issues that happen to relate to digital communications technologies. No clear discernible normative framework has yet emerged.

Rather than focusing on these new technologies, any new legal and policy framework for the information age should be organized around the idea of 'information' per se, with its focus on society's interactions with various kinds of information. Such a development would require the identification and development of normative principles that will shape the development of relevant laws and policies.

This article suggests that an appropriate set of normative principles might be derived from identifying a set of 'control' and 'access' rights in relation to information. These rights could be utilized as 'organizing tools' for the development of a legal and policy framework that would help inform the development of a harmonized and cohesive set of 'information law and policy principles' for the global information age. The following discussion demonstrates how this might be achieved in theory and practice, and presents case studies to illustrate how such a law and policy framework might prove useful in informing future debate in the 'information law' area.

Cyberlaw, information, property, intellectual property, copyright, database

Abstract:
The Digital Millennium Copyright Act ("DMCA"), has raised the spectre of neutralizing copyright law's fair use doctrine. By restricting the availability of technological devices that can be used to access and copy digitally encrypted works, the DMCA effectively removes the ability of potential fair users to access and use those works. The legislation has the laudable aim of preventing digital copyright piracy. However, as recent judicial interpretations evidence, fair use seems to be an unintended casualty in the battle between content industries and digital copyright pirates. The dilemma is that it is very difficult for Congress to effectively regulate technologies that can be used either for digital copyright piracy or for fair use purposes. A blanket ban on the technologies adversely affects fair use whereas a more lenient approach advantages copyright pirates. This article advocates resolving the dilemma through a new approach that takes fair use outside the scope of the DMCA. The idea is to create a new administrative complaints mechanism, outside the judicial system and the current triennial review of the DMCA by the Librarian of Congress. This new mechanism would support individual fair users in attempts to access or copy encrypted works. This approach is better tailored to individual fair users than the current system. It also has the advantage of potentially generating a significant amount of useful data about emerging social norms relating to the boundaries of the fair use doctrine that could be fed back into legislative and judicial processes as copyright law develops in the new millennium.

digital, copyright, fair use, legitimate use, DMCA, DRM

Abstract:
Many scholars have commented on the use of real and personal property metaphors to describe aspects of cyberspace, often expressing concern about inappropriate uses of such metaphors. If the focus of cyberspace law debates becomes too entrenched in notions of whether we should be utilizing real and/or personal property metaphors, we risk losing focus on some of the more important issues. These issues include questions about exactly what subject matter should be regulated by cyber-laws, and how approaches to protection might be appropriately harmonized between different jurisdictions in an increasingly globalized society. This paper focuses on some of these issues, utilizing a case study involving a framework for a new approach to regulations prohibiting unauthorized 'bad faith' incursions into information and information systems. In so doing, it advocates some reliance on personal property concepts in relation to information, and aspects of information systems. However, it argues that real property metaphors should be avoided in cyberspace. It also compares legal approaches to unauthorized interferences with proprietary information/information systems between the United States and the European Union.

Intellectual property, computer trespass, information, information systems

Abstract:
This Article presents a new paradigm for thinking about intangible property rights in response to recent criticism that information products such as databases should not be over-propertized. Analyzing the inherent problems with existing approaches, the Article concludes that creating private property rights in these intangible assets will not inevitably lead to commercial and social problems. On the contrary, legislatures can create private property rights that when accompanied by appropriate oversight and monitoring will preserve commercial markets and the public domain of information. Indeed, a new database law can use the concept of property as an organizing tool to properly balance private rights and public policies. In developing this new approach to database protection, this Article examines the international debate on the creation of private property rights in databases. Furthermore, unlike previous models for sui generis database protection law based on copyright or trade secret law, the model in this Article draws on the principles underlying trademark and patent law in reaching a new solution.

database, copyright, trademark, sui generis

Abstract:
In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns "hillaryclinton.com", the more generic "hillary.com" is registered to a software firm, Hillary Software, Inc. What about "hillary2008.com"? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain name law and policy as to domain name use in the political context. Current domain name policy is focused on protecting trademark uses of domain names against bad faith commercial "cybersquatters". It does not deal with protecting important uses of domain names as part of the political process. This article identifies the current problems with Internet domain name policy in the political context and makes recommendations for developing clearer guidelines for uses of political domain names. In so doing, it creates a new categorization system for different problems confronting the political process in cyberspace, including: (a) socially and economically wasteful political "cybersquatting"; (b) politicial "cyberfraud" which might involve conduct such as registering a politician's name as a domain name to promulgate a misleading message about the politician; and, (c) competition between politicians' names and competing trademark interests.

Internet domain name, election, trademark, cybersquatting, cyberfraud, First Amendment

Abstract:
When the Oscar-winning actress, Julia Roberts, fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual's persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes are based on trademark law. Although a number of individuals have successfully used these rules in practice, the focus on trademark law has led to inconsistent and often arbitrary results. Additionally, commentators have questioned recent expansions of trademark law in the Internet context. This Article suggests that if personal names merit legal protection in cyberspace, it should be under an appropriate set of legal rules, rather than through further expansion of trademarks. This Article develops a new framework for personal domain name disputes based on the theories underlying the right of publicity tort. Unlike trademark law, this tort is aimed at the protection of individual names and likenesses. It has not been utilized much in cyberspace largely because of time, cost, and jurisdictional disadvantages of litigation as opposed to the quicker and cheaper, but trademark-based, Uniform Domain Name Dispute Resolution Policy ("UDRP"). This article suggests the creation of a new personal domain name dispute resolution policy ("PDRP") that combines the procedural advantages of the UDRP with the theory underlying the right of publicity tort.

Internet domain name, cyberlaw, trademark, UDRP, cybersquatting, intellectual property, First Amendment

Abstract:
In June of 2007, the United States District Court for the Northern District of Ohio ruled on a motion to dismiss various claims against the Youtube video-sharing service. The claimant was Universal Tube and Rollform Equipment Corp ("Universal"), a manufacturer of pipes and tubing products. Since 1996, Universal has used the domain name utube.com - phonetically the same as Youtube's domain name, youtube.com. Youtube.com was registered in 2005 and gained almost-immediate popularity as a video-sharing website. As a result, Universal experienced excessive web traffic by Internet users looking for youtube.com and mistakenly typing utube.com into their web browsers. Universal's servers were initially unable to handle this traffic causing interruptions to its online business. The Youtube litigation, although factually idiosyncratic, does raise questions as to how effectively current laws and policies deal with situations where two different companies assert similar interests in one or more domain names. There have been many examples since the inception of the domain name system where several parties with legitimate claims to similar trademarks have battled for corresponding domain names, such as delta.com. This article examines the possibility of developing domain name sharing strategies in such cases. In particular, it presents a new proposal to expand the Uniform Domain Name Dispute Resolution Policy to facilitate domain name sharing arrangements.

Internet, domain name, trademark, litigation, negotiation, cyberlaw

Abstract:
Intellectual property rights are often justified by utilitarian theory. However, recent scholarship suggests that creativity thrives in some industries in the absence of intellectual property protection. These industries might be called IP's negative spaces. One such industry that has received little scholarly attention is the typeface industry. This industry has recently digitized. Its adoption of digital processes has altered its market structure in ways that necessitate reconsideration of its IP negative status, with particular emphasis on copyright. This article considers the historical denial of copyright protection for typefaces in the United States, and examines arguments both for and against extending copyright protection to digital typefaces. It compares copyright law with alternative methods of protection for digital typefaces. It also suggests that the digital typeface industry may be a useful lens through which to consider broader claims about the application of intellectual property law to IP's negative spaces in the digital age.

copyright, innovation, font, typeface, design right, intellectual property, cyberlaw

Abstract:
The Global Online Freedom Bill of 2006 emphasizes the importance of freedom of speech on the Internet as a fundamental human right. However, the backbone of the World Wide Web, the Internet domain name system, is a poor example of protecting free speech, particularly in terms of the balance between speech and commercial trademark interests. This is apparent from the manner in which the legislature and the judiciary deal with cases involving Internet gripe sites and parody sites. The lack of a clear consensus on the protection of free speech in these contexts is troubling, and can be found in a number of recent cases including: use of the peta.org domain name for a parody site on the activities of 'People for the Ethical Treatment of Animals'; use of 'bosleymedical.com' for a gripe site about the practices of the Bosley Medical Institute; and, use of a misspelling of the Reverend Jerry Falwell's last name (fallwell.com) for a website critical of the Reverend's viewpoints on homosexuality. This article examines how trademark law has come to trump freedom of expression under the domain name system, and makes recommendations for regulatory reform to ensure a better balance of rights in the future. In particular, it suggests the development of presumptions against trademark infringement in cases clearly involving criticism or parody of a trademark holder in cyberspace.

trademark, domain name, first amendment, free speech, Internet, ICANN, WIPO

Abstract:
Copyright law has always involved balancing creative pursuits against innovations in copying, distribution and, more recently, encryption technologies. A significant problem for copyright law is that many such technologies can be utilized for both socially useful and socially harmful purposes. It is difficult to regulate such technologies in a way that prevents social harms while at the same time facilitating social benefits. The most recent example of this dynamic is evident in the 2005 United States Supreme Court decision in MGM v Grokster - dealing with digital file-sharing technologies. This article draws from the file sharing debate in considering another copyright law 'balancing act' involving the regulation of anti-circumvention devices under the Digital Millennium Copyright Act ('DMCA'). The DMCA aims to prevent digital copyright piracy while at the same time facilitating certain legitimate interests in copyright works. Recent judicial interpretations suggest that these legitimate interests are not well supported under the current legislation. This article advocates developing a better balance by disaggregating questions relating to the protection of legitimate uses of copyright works from the larger battle involving the appropriate regulation of circumvention technologies. The idea is to take certain socially beneficial uses of copyright works outside the scope of the DMCA's anti-circumvention provisions, and to create a new administrative mechanism that would facilitate those uses by imposing affirmative legal obligations on copyright holders. The system suggested here would also generate useful data about emerging social norms relating to fair use of copyright works in the digital age.

DMCA, fair use, copyright,

Abstract:
Senator Barack Obama's historic victory in the 2008 election marks some important milestones - notably that this country is ready for its first African-American president. His win also underscores the importance of understanding today's Internet as a campaign tool. No longer is the Internet a one-way communications medium between candidate and electorate. It is now a powerful multi-directional networking tool. It can bridge physical and virtual spaces in a way never before possible, bringing previously latent social and political groups together. Senator Obama's campaign strategists understood and capitalized on the capabilities of what has recently become known as Web 2.0 - an Internet characterized by interactive group networking and participation. This article examines how the needs of Senator Obama's campaign converged with the features of this new Internet, in many ways creating a perfect online campaign platform for the senator. It contrasts his use of the Internet with other uses of the Internet in politics. It concludes with some comments about the likely future of the Internet in presidential politics.

Internet, Elections, Campaign Tool, Web 2.0, Social Networking, Facebook, YouTube, Text Messaging, Blogs

Abstract:
Computer software is somewhat of a problem child for intellectual property law. Courts and legislatures have struggled to encourage innovations in software development while, at the same time, attempting to avoid undesirable digital information monopolies. Neither the patent nor the copyright system has provided a particularly satisfactory paradigm for software protection. Although patents have received greater attention than copyrights in the software context (consider, for example, the recent BlackBerry case), copyright law arguably creates more insidious undercurrents in today's marketplace. This is partly because we have not yet appreciated the potential impact of recent developments in programming methodology and digital copyright law on software copyrighting practice. If lawmakers do not act expeditiously to stem the tide of copyright protection, the software industry could be facing an intellectual property grab of much greater proportions than previously thought possible. This Article argues for a shifting of the paradigms employed to encourage software innovation. In particular, copyright law should be scaled back and, to the extent it is retained, the doctrines of merger and scenes a faire should be more clearly developed to avoid unjustifiable information monopolies, and questionable market practices. Lawmakers also need to recognize that trade secrecy is now a more viable candidate for software protection than in the past, due to recent advances in encryption technology.

Copyright, computer, software, code, patent

Abstract:
During the 1990s, courts and legislatures worldwide extended copyright protection to software code as a form of literary work. At the time this was understandable given the perceived need for legal protection to promote innovation in a fledgling industry in the wake of the personal computer revolution. However, many criticized this approach as paradoxically contributing to both over-protection and under-protection in the computer software industry. The ensuing decade has shown these criticisms to have been well-founded, both due to concerns that were apparent at the time, and now to more recent developments in programming methodology and digital copyright law. This article suggests that there is today a pressing need to revisit the question of copyright protection for computer software with a view to abolishing such protection. Factors that contribute to this suggestion include: (a) important developments in programming methodology in recent years including object-oriented approaches to programming; (b) the advent of effective contractual and digital rights management ("DRM") measures to protect computer code; and, (c) the impact of the Digital Millennium Copyright Act ("DMCA") on digital copyright law and practice. This article suggests that copyright protection for software code is no longer necessary in the 21st century and potentially chills innovation. It should therefore be discontinued. Other more appropriate legal and technological protections are now available for software code outside the copyright context.

digital, copyright, merger, scenes a faire, DMCA, fair use

Abstract:
The digital age brought many challenges for copyright law. While offering enticing new formats for the production and dissemination of copyright content, it also raised the specter of large scale digital piracy. Since the end of the 20th century, content industries have reeled to keep up with technological developments that offer significant promise as well as threats of large scale piracy. There has always been some tension between promoting innovation in content creation and promoting innovation in technologies that enable the enjoyment of copyright works, such as photocopiers, audio tape recorders, video tape recorders, and peer-to-peer file sharing systems. The manufacturers and distributors of these technologies have had to tread a fine line in their marketing and distribution efforts to avoid liability for secondary copyright infringement liability based on direct infringements by their customers. To this list of technologies, we may now add Internet search engines and online payment systems. This paper considers ways in which copyright law has addressed the secondary liability question in an increasingly digital marketplace. It suggests that the realities of this marketplace necessitate a new look at broader policy issues underlying digital copyright law more generally in order to meaningfully address questions of secondary liability online.

Digital Copyright Law, Digital Piracy, Secondary Copyright Infringement, Internet Search Engines, Digital Marketplace, Contributory Liability, Technological Innovation

Abstract:
Privacy scholars have recently outlined difficulties in applying existing concepts of personal privacy to the maturing Internet. With Web 2.0 technologies, more people have more opportunities to post information about themselves and others online, often with scant regard for individual privacy. Shifting notions of 'reasonable expectations of privacy' in the context of blogs, wikis, and online social networks create challenges for privacy regulation. Courts and commentators struggle with Web 2.0 privacy incursions without the benefit of a clear regulatory framework. This article offers a map of privacy that might help delineate at least the outer boundaries of Web 2.0 privacy. The aim is to develop an umbrella under which individual aspects of privacy may be collected and examined, along with their relationships to each other. The key aspects of privacy identified are: (i) actors/relationships; (ii) privacy-threatening conduct; (iii) motivations; (iv) harms/remedies; (v) nature of private information; and, (vi) format of information. The author suggests that by examining these aspects of privacy, and their inter-relationships, we might gain a more comprehensive picture of online privacy. We might also gain a better idea of precisely where Web 2.0 technologies are putting pressure on the boundaries of traditional notions of privacy.

privacy, WWW (world wide web), internet, Web 2.0, technology, social networks, Justice Antonin Scalia, Professor Joel Reidenberg

Abstract:
In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation - the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming widespread in the hands of the public, the regulatory focus must shift. Once a small percentage of online content, digital video is now appearing at an exponential rate. This is largely due to the growth of online social networking platforms such as YouTube and Facebook. Sharing video online has become a global phenomenon, while the lack of effective privacy protection for these images has become a global problem. Digital video poses four distinct problems for privacy, arising from: de-contextualization, dissemination, aggregation, and permanency of video information. While video shares some of these attributes with text, its unique qualities necessitate a separate study of video privacy regulation. This article identifies a rationale for, and critiques suggested approaches to, digital video privacy. It argues that legal regulation, without more, is unlikely to provide necessary solutions. Instead, it advocates a new multi-modal approach consisting of a matrix of legal rules, social norms, system architecture, market forces, public education, and non-profit institutions.

Camera Phone Predator Alert bill, Privacy, Digital Technology, Facebook, YouTube, Flicker

Abstract:
The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with others’ trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on advertisements. To avoid trademark liability, most clickfarmers and cybersquatters utilize personal names, geographic and cultural indicators, and generic terms as domain names. The application of current regulations to these practices is unclear, largely because of the lack of a coherent policy basis for domain name regulation. This article develops a new model for domain name regulation. It incorporates trademark policy within a broader theoretical framework incorporating aspects of restitution and property theory. The author suggests that a broader theoretical approach to domain name regulation would facilitate the development of more coherent domain name rules in the future. This discussion is particularly timely in light of the forthcoming implementation of a new generic Top Level Domain (gTLD) application process.

Anit-Cybersquatting Consurmer Protection Act (ACPA), Uniform Domain Name Dispute Resolution Policy (UDRP), Top Level Domain (gTLD), Internet Corporation for Assigned Names and Numbers (ICANN), Significant Words, Domain Name, Cybersquatting, Clickfarming, Internet, Clickfarming, Trademark, Property

Abstract:
No abstract available.

Abstract:
The Digital Millennium Copyright Act ("DMCA") has been criticized for many reasons, including its impact on the fair use defense to copyright infringement, and its potential to chill the free exchange of scientific, technical, and educational information. Law professors and special interest groups have opposed elements of the DMCA from its inception and continue to lobby for reform. One of the more recent concerns about the DMCA involves the incorporation of copyrightable software code into tangible goods for purposes related to the functionality of those goods. Some manufacturers of such products have recently attempted to use the DMCA to prevent commercial competitors from developing and marketing interoperable replacement parts in competition with them in relevant after-markets. Despite recent judicial determinations against such manufacturers, the potential for future manufacturers to argue for the application of the DMCA in these kinds of cases remains a matter of some concern as an unintended consequence of the legislation. This article advocates the development and implementation of a legislative "carve out" to the DMCA in cases involving interoperable replacement parts for tangible goods where copyrightable software code is incidentally incorporated into either the original good and/or the authorized replacement part. DMCA liability should not arise in situations where copyright infringement is not a central commercial concern of the plaintiff.

Digital, copyright, UCITA, DMCA, fair use, contracts

Abstract:
Many scholars criticize what they perceive to be a dangerous trend towards the 'over-propertization' of valuable information in the digital age. One of their concerns has been the failure of current laws to strike an appropriate balance between competing interests in valuable information. Historically, we have tended to rely on 'fair use' exceptions to information property rights, and/or restrictions on their scope to achieve some balance here. This paper suggests an alternative way of striking such a balance. We might learn from the traditional theories of 'property' in this context.

Traditional property theory can teach us some useful lessons about how the law can balance competing interests in valuable assets. The 'bundle of rights' idea of property, for example, contemplates not only rights in property, but also obligations owed to others in respect of property (such as the obligation to maintain premises in good repair). We may be able to create some information age equivalents to some of the more traditional obligations of property ownership, particularly to deal with situations involving competing interests in propertized information. Information property owners could be made liable for legal and financial burdens inherent in facilitating the exercise of identified competing interests in relevant property, such as personal privacy rights in information, moral rights of authors of 'information works', cultural rights in relation to certain information products, and/or access and use rights for scientists, researchers and educators.

Any new system for balancing competing interests in information assets should require the government to monitor and enforce the performance by information property holders of their legal duties. This will match what has historically been the case in relation to real property rights and duties. In any event, where a government has created, or supported the creation of, private property rights in information, it should be prepared to create and support concurrent legal duties imposed on information property holders.

intellectual, property, fair use, rights, obligations, information

Abstract:
Documentary letters of credit have historically been an important and popular method of payment in international trading transactions. In fact, they have been described as the "life-blood of international commerce." A number of uniform international practices have developed for their use, many of which are codified in international rules such as the UCP 500. However, in the global information age, as the nature of international commerce changes, so too must the operation of such payment mechanisms. With the increase in electronic trading, the "documentary" nature of these credits may require some revision. This paper examines ways in which the law and practice relating to documentary credits may need to be modified to accommodate electronic transactions.