Elon University

Panel Session: The Future of Intellectual Property and the Internet

Addressing questions of “ownership” in the digital age

Brief description: Intellectual property law has seen rapid changes since the dawn of the modern, commercial Internet. Indeed, those changes have, in large measure, been engendered by the Internet itself. Those engaged in the law continue to struggle to find its place and role on the Internet, as the miasma of changes and mutations in how we interact with each other requires reconsideration of what we mean by “intellectual property.” This panel addressed issues facing the creators and consumers of intellectual property – in other words, all of us. Session organizer was Dave Levine, of Elon School of Law and Stanford Center for Internet and Society. Panelists included Ann Bartow of the University of South Carolina School of Law; Eric Fink of Elon Law; Jacqui Lipton, of Case Western Reserve University; Ira Nathenson, St. Thomas University School of Law. (Additional video clips to come soon.)

Details of the session

As introduced by moderator Dave Levine, a professor at Elon Law and Stanford CIS, and the host of the radio show Hearsay Culture (which deals with issues similar those touched upon in the panel), the goal of this panel was to analyze how intellectual properties exist within the realm of cyberspace.

“As we all know, the challenge…in the IP space as it relates to the Internet is whether current law applies to the Internet,” he said, setting the stage for the discussion by the panelists, who took turns standing at the podium in the main ballroom of the Raleigh Convention Center to deliver their presentations.

Jacqueline Lipton – domain names and trademarks

Lipton spoke about Internet domain names and trademarks, and she has a book on the same topic coming out in the next few weeks. The idea for the book arose from a series of articles written on the topic over the past few years. It struck her that trademark law did not fit well into the conflicts of domain names and cyber-squatting.

Eventually, cyber-squatting was put to an end and ICANN settled some of the domain name disputes. But since then, conflicts have been arising along the matter of copyrights in different countries coming against one another in the interest of having the same domain name, the utilization of names that are also copyrighted, religious phrases, etc. President Barack Obama, in fact, ran into these issues as obama.com had already been taken by a city in Japan with the same name.

UDRP and ACPA settle some disputes, but the fundamental question as to whether domain names exist within copyright law and are intellectual property still exists.

“Is the domain name system so different that we need to think of new ways to regulate it and new rules?” she asked.

Domain names are similar to real property in that there can only be a single person registered for a given domain name, as they are singularly existing entities. There is the argument that, given the power of search engines, domain names are no longer important. But still, there is a continuously exponential rise in the number of disputes brought before UDRP.

Currently, the notion of trademark dominates the ideology toward domain space, but there is still the question as to if there should be an exceptionalist route taken toward domain names.

Ann Bartow – counterfeiting and illegitimate goods

Bartow described a real-world counterfeiting case taking place in a California swap meet that, in a roundabout way, had implications for the extension of counterfeit law to cyberspace. There were organizations selling bootlegged copies of preexisting albums and videos, and the police determined that the swap meet would be the choke point to put an end to the counterfeit trade. But, the big problem is that at the meets it’s inherently difficult to check and see what material is indeed illegitimate. It is costly and an expense that no one particularly wants to take on.

Online, it’s exactly the same thing. eBay, in and of itself, is a glorified auction house upon which illegitimate goods can be placed without anyone checking their fidelity. As such, Tiffany v. eBay arose, with the plaintiff asserting that eBay was advertising its goods, some of which were counterfeit, offered at artificially low prices. eBay responded by saying that if alerted, it would take action and in many cases, did policing of its own.

Then, eBay determined that there is a portion of goods that are legitimate being traded, and a given amount that are counterfeit, but in the end, there was a large contingent of goods that neither eBay nor Tiffany could determine the legitimacy of, leaving both firms in an ambiguous position of what to do with indistinguishable goods. The question of what to do with the sale of damaged goods arriving from factories and arising on eBay arose as well, but most importantly, the core of eBay’s business, the sale of used goods, popped up. Tiffany wished to scare eBay into taking all of its products, used, new and damaged off of its site and thereby forcing all possible customers to resort to obtaining new Tiffany products.

The choke point, in the real world and online, hit the auction houses and hosts, the idea of contributory infringement of copyright law. But the courts ruled that eBay was not liable for the sale of the goods, and its in the opinion of Bartow that courts should remain to do the same.

Ira Nathenson – overly broad domain over content

Nathenson said that for creators of popular user-created content, the extent of their domain over content is, in many cases, made overly broad by courts and society.

Copyright in the US exists immediately after the content is made, and if the paperwork is filed quickly enough, the potential damages per work go up to $150,000 for each instance of the content, even if it’s something as small as a single song. Million-dollar charges against music downloads are common. Cease and desist letters allow copyright lawyers to bully common citizens into backing down from fair use that they may actually have in particular instances, and in doing so, lawyers are extending the effectiveness of their clients’ copyright claims.

The notice and take-down statue from the DMCA is called “the safety dance” by Nathenson, since it’s an intricate series of choreography in which Internet intermediaries, through the efforts of lawyers, can be removed from liability for copyright violations if they just remove the content from their sites. The individuals who are posting the information are never contacted, as the power lies in the hands of those hosting it. This also, in turn, can effectively extend the duration of copyright holdings and limit fair use rights that may exist for the individuals who are being left in the lurch, the third-party in a two-person dance, as it were. Taking content down immediately, as opposed to looking over the legal implications, is made an incentive.

Stephanie Lenz, whose young son was recorded dancing to a short clip of Prince’s song “Let’s Go Crazy,” was hit with a lawsuit by Universal and Prince, but then, in a case that’s still being decided, filed a counter-suit debating that for all practical purposes, the short YouTube clip bears no negative weight against the original intellectual property. The language as to the law that exists, particularly in regard to take-down notices, is incredibly unclear and serves as an impediment to individual users to assert their rights of put-back.

“Downfall” is a German film which portrays Adolf Hitler during his descent into madness, which has become a common meme across the Internet. People cut new audio tracks for the film displaying Hitler becoming furious in reaction to various different pop culture icons such as Kanye West, “Avatar” and the iPad. It did not escape the take-down law.

The “Hitler meme” videos have become increasingly scarce as YouTube begins to take them down, as they’re able to track and log the videos, and even block the posting of the videos completely through their coding, serving as a chilling effect for future uses of the meme, even though some of the videos have been hosted for up to two years. YouTube’s policy allows copyright owners to opt out of fair use as there’s no requirement for content to be viewed on an individual basis and judged as such. Instead, any similarities between the copyrighted material and the material hosted on YouTube can be identified independently, and swift retribution often follows after this identification. The copyright laws don’t just adhere to the materials being hosted and how they’re constructed, but to the way in which the laws are carried out as well.

Eric Fink – property in virtual realms

Eric Fink Speaking HeadshotFink most recently has worked to see how legal systems pertain to virtual worlds such as Second Life. Second Life has inherent tools in place for any user to be able to create original content, though much of this content may be built using copyrighted material. Fink’s own house in Second Life utilizes a wallpaper that is a copyrighted, his virtual tractor has a Ford logo attached to it, and the question is just how such applications of user-created and preexisting copyrighted content play out. Counterfeit goods can be found even on Second Life, with Nike sneakers, for example, being sold for actual money, in virtual form, without any ties to the firm in question.

Fink said that for some time during the VR world’s infancy such violations were ignored, but firms have increasingly jumped onto Second Life (and subsequently jumped off for a lack of profits) and tried to sell their own materials which do adhere to their real-world copyrights. In these virtual worlds though, there’s a feeling that such legal questions don’t even come to the mind of the common user, who sees a clear distinction between real-world goods and virtual materials constructed by individuals. A large amount of goods produced are made to be free, and the underlying code for items that are both sold for real-world dollars and for free eventually was released through less-than-noble means, leading to the counterfeiting of mostly counterfeited goods.

This, in turn, led to an avatar-led strike to try and create more demand within the community for paid content, joining together in a guild that didn’t try to seek solutions through legal means. The point was to try to bring together all of their resources to bring about better promotion and encourage LindenLabs, the firm owning Second Life, to police the virtual world in the same way that Tiffany wanted eBay to police its own domain. The terms of service do, after all, say that Second Life users retain the rights to all content that they create on their own, despite it being hosted on their own servers, something which isn’t particularly common in virtual worlds. But, in turn, LindenLabs said it wasn’t their role to police violations of these rights, at least initially. As public opinion within Second Life turned against this stance though, a degree of policing did occur in an attempt to stop the copying of code. It was extended to third-party browsers used to access Second Life services.

“Most people who have their formal legal rights infringed upon do nothing about it,” Fink said.

Most likely, the response of individuals who have their rights violated is to utilize non-legal social methods to bring about their own degree of justice, seeking to create a culture which has norms that do not tolerate the action which violated the rights of the individual in the first place.

-By Morgan Little, Imagining the Internet

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