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Abstract:
This book chapter addresses various domain name issues and the interface between registration of domain names and trademark rights. It provides technical and historical background to domain names disputes and moves to focus on particular matters of interest such as regulation in the U.S. and via ICANN, conflict of laws, international aspects, potential abuse of regulatory mechanisms, litigation strategies and freedom of speech issues.

domain names, trademarks, UDRP, ACPA

Abstract:
The typical scenario of keywording involves a trilateral structure of legal positions. The mark holder is the party that has trademark rights in the term that is used as a keyword. The search engine is the entity that provides search tools to Internet users, usually for free, helping them to find specific information on the Internet based on search queries entered by users into the search tool. The advertiser enters into contractual relationship with the search engine, while bidding certain keywords that will trigger its advertisement/link if the user enters these words as search terms. The markholder files a legal action against the advertiser, the search engine or both, claiming trademark infringement and/or unfair commercial practice (unfair competition.) Questions of liability may be classified according to the type of defendant and the type of action commenced against it.

In Matim Li v. Crazy Line the district court of Tel Aviv dismissed trademark infringement and unfair competition claims against a defendant that used marks of others to trigger Google AdWords. There, the advertiser used keywords identical to the registered marks and was engaged in offering goods of the same class for which the marks were registered. Yet, the protected marks did not appear as part of the AdWord. The court dismissed trademark infringement claims mainly because such advertising practice was found as not creating likelihood of consumer confusion regarding the source of goods. Further, it was held that the keywording practice did not amount to gaining wrongful advantage based on the reputation of the marks.

This paper takes the Matim Li decision as its point of departure for discussing keywording from a broader perspective in light of recent developments in the United States and Europe.

adwords, Google, trademarks, keywording, infringement liability

Abstract:
This Article analyzes the relationship between the UDRP and the ACPA. It highlights some concerns regarding international implications and manipulations of litigants in legal disputes concerning generic Top Level Domains. The analysis demonstrates who easily can mark owners influence the national forum, where challenges on UDRP decisions are heard and decided. The article further voices concerns regarding the current legal structure which allows mark owners to divert UDRP challenges to US federal courts when foreign marks are involved and adjudicated according to US trademark law.

UDRP, ACPA, domain names, forum shopping, cybersquatting

Abstract:
The debate concerning United States anticircumvention law spurred by the enactment of the Digital Millennium Copyright Act [DMCA] in 1988 reached a high peak with the recent decisions of the Federal and the Sixth Circuits in Chamberlain and Lexmark. These decisions rejected DMCA claims where the anti-trafficking prohibition was invoked in disputes between manufacturers of consumer electronic products competing in the aftermarket for interoperable devices. Both decisions introduce interpretive theories that shed new light on the way the DMCA has been understood thus far and embody implications that call for fundamental changes in the US anticircumvention paradigm. This Article describes the rulings and attempts to extract their normative novelties, especially regarding the relationship between access control regulation and traditional copyright law and limitations. Further, it offers a critical analysis of these decisions and reflects on future application of the anticircumvention scheme in the digital copyright environment. It aims at stirring the discussion surrounding the anticircumvention legislation, in particular in light of the recent Supreme Court's refusal to review the Chamberlain ruling.

Digital Millennium Copyright Act , Chamberlain, Lexmark, anticircumvention, Copyright, access right, access control

Abstract:
In June 2003, the United States Court of Appeals for the Fourth Circuit rendered its decision in the case of Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona, concluding a high-profile dispute between the Spanish registrants of www.barcelona.com and the City Council of Barcelona, Spain. In this case of first impression, the Fourth Circuit added another important building block to the growing body of domain name and trademark jurisprudence in the United States. The holding, which determines the rule of law applicable to the "reverse domain name hijacking" provision of the Anticybersquatting Consumer Protection Act, carries far-reaching consequences for future international domain name disputes. This Essay explores the background and practical implications of the holding. Sections I, II, and III explain the background of the Barcelona.com dispute, its relevant legal framework, and the Fourth Circuit's ruling. Sections IV and V analyze this ruling and suggest practical litigation strategies for domain name disputes.

Cybersquatting, reverse domain name hijacking, domain names, ACPA, UDRP, trademarks

Abstract:
This Article analyzes one of the most concerning aspects of U.S. cybersquatting law: foreign actors litigating domain name disputes in U.S. federal courts. This problem surfaced and received special attention in the Fourth Circuit's recent decision in Barcelona.com, Inc. v. Excelentisimo Ayuntamiento de Barcelona.

Part I of this Article provides essential background to domain name dispute issues. Part II describes the legal framework created to deal with cybersquatting activities, namely the Anticybersquatting Consumer Protection Act and the Uniform Dispute Resolution Policy. Part III provides an overview on the background and facts surrounding the Barcelona.com domain name dispute and the Fourth Circuit's ruling. Part IV consists of a critical analysis of the decision and discussion of its resulting troublesome consequences. Finally, Part V presents an alternative to current cybersquatting policy and approaches. In addition, it provides a new model that highlights the advantages of the alternative as compared with the shortcomings of the present approaches.

cybersquatting, domain names, trademarks, Barcelona.com, ACPA, UDRP

Abstract:
This paper is a draft chapter from a forthcoming book on copyright law in the digital environment. This chapter (Draft Chapter 1 in the book) addresses the basic question of information as subject matter of IP regulation, especially in the context of copyright law. It develops a conception of information that seeks to descriptively and prescriptively inform the debate over property-like rights in "information" at a rather abstract level. The paper further suggests that this conception is applicable to numerous questions of regulation, policy and judicial interpretation.

copyright, information subject matter, intellectual property, information theory, communication theory

Abstract:
Slides of a presentation at Max Planck Institute for Intellectual Property in Munich describing a work project on copyright law in the digital environment.

Slides introduce the underlying inquiry and frame the issues as descriptive and prescriptive questions concerning proprietary access control under copyright. Three fundamental concepts stand at the basis of such questions, namely, access, property and information. These concepts receive some elaboration in the context of access-to-information problems.

The presentation next elaborates on the concept of the "access-right" and offers a formal definition. It then attempts to identify aspects and elements of the access-right as manifested in "traditional" copyright law and compares it to new manifestation of the access-right in current "digital" copyright law. I address overprotection concerns related to the formal (de jure) and actual (de facto) expansion of the exclusive rights and briefly touch upon three categories of solutions and approached: copyright neo-conservatism, copyright reformism and finally, an access-right approach to the problems of copyright law and policy in the digital age.

copyright, access-right

Abstract:
This Article argues that the Federal Circuit in Chamberlain and Storage Tech is developing a parallel common law doctrine of fair access. As applied, this doctrine manifests the court's approach as to the appropriate balance between the interests of copyright owners and information users in the context of access to copyrighted works. It is parallel to the statutory approach due to its deviation from Congress's policy as reflected in the DMCA.

Applying the Hohfeldian model of fundamental jural relations to the anti-circumvention norms, the Article criticizes Chamberlain's theory, which argues that the anti-circumvention law did not establish a new property right allowing owners to prohibit access to their digital works.

In connection to a possible interpretation of the fair access doctrine that would allow fair use (and other copyright defenses) as a valid protection against anti-circumvention and anti-trafficking claims, it shall be argued that the Federal Circuit's decisions have paved the way not only for the incorporation of traditional copyright infringement defenses into the anti-circumvention law, but also provided solid arguments to defendants in cases where such defenses, and particularly statutory fair use, are inapplicable.

The court's analysis effectively opens up the door to an alternative judicial approach of anti-circumvention construction - the fair access doctrine. In light of the legislature's bewilderedness as to if and how to modify the flawed access control provisions of the DMCA, Its development in the course of future disputes could furnish an effective shield for defendants in circumstances of unjustified application of the anticircumvention rules.

anticircumvention, dmca, chamberlain, copyright, storage technologies, access

Abstract:
This is a revised draft introduction to an extended study on copyright law. The draft introduction explains in brief the structure of the study and the main thesis it advances.

copyright, access-right

Abstract:
Presentation delivered on August 6, 2009 at the IP Scholars Conference held at Cardozo School of Law, New York.

information cost, copyright

Abstract:
What is "information"? It this question answerable? Why should intellectual property scholars bother conceptualizing information? We are told that we live in the technological age, in which information is a prime resource. In turn, intellectual property [IP] regulation directly relates to this resource. Most IP scholars would probably agree that their respective disciplines concern property-like entitlements with respect to "information." Information is the subject matter around which IP laws tailor exclusory regimes. In this light, the thinness of the theoretical discussion about IP subject matter as information is quite striking. In contrast to the prevailing tendency refraining from defining information, this paper asserts that defining information - in the specific context of IP law - is both feasible and beneficial. Pondering the concept of information (and the nature of IP subject matter as information) illuminates nonobvious aspects of both theoretical and practical issues.

Borrowing insights from information and communication theories, the paper constructs a framework that conceives information as a meta-concept. Accordingly, information is a significantly unpredictable and ubiquitous dynamism, in which medial messages are being constantly created, delivered, processed, modified, changed and exchanged. Messages are the objectively detectable apparitions of that process. For analytical purposes, I propose that the information process can be broken down to atomic sequences of communication events. Each singular sequence involves a medial message passed from an originator to a recipient. The medial message, the essence of IP subject matter, fulfills two quasi-formal requirements: It must be both perceptible and comprehensible. After presenting the original model and its definitions, I turn to apply it to copyright law. By referring to U.S. and occasionally also to foreign law, the paper demonstrates how the model can describe and explain basic copyright concepts and principles. The paper further shows how information model perspectives can throw new light on legal analysis of concrete problems, for instance, the questions of authorship and originality. I argue further that the policy debate surrounding IP law can benefit from a robust theoretical conversation geared toward a more solid understanding of "information." The information model introduced in this paper hopes to furnish some initial insights in this direction.

information, intellectual property