SYLLABUS

This class meets Tuesday/Thursday 10:30 -12 in room 109.  The first class is Thursday August 20. 

I concluded to try the course this year without a textbook.  Hyperlinks are supplied to assigned materials.  "Additional Reading" is supplied for those who wish to delve more deeply into a given subject, but it is not required.  Links to statutory and regulatory materials for most of what we will be studying this semester can be found on the Course Materials section.  Given the absence of a text, I will wait to develop the full syllabus until the class can meet and I can get an idea of what the majority preference is for how to proceed through the semester.  For the first day, I have asked you to read a short problem on a recent issue involving copyright in judicial filings and a recent case that raises issues of what constitutes a "copy" and what is the meaning of "public performance" under the Copyright Act.  We can proceed through the semester like this, on looking at cases and other events that raise interesting intellectual property issues that are tied to cyberspace.  Or, we can take a more systematic approach to the whole business, taking moderately well defined topics like computer software protection (under copyright and patent law), the Digital Millennium Copyright Act, secondary liability (think Napster and Grokster),  database protection, trespass to chattels, trademark enforcement (the recent eBay case), cybersquatting, etc.  This is what we did the last time I offered this class, as you can see from this syllabus.

A good (and free) electronic newsletter that helps one keep up with developments in cyberlaw generally is Bytes in Brief.  

Click here for class Announcements. 

Most Recent Syllabus Update:  November 19, 2009

Thursday August 20

 Take a look at the PACER/RECAP problem and read the Cartoon Network case.  On the public performance issue, this time involving ringtones, see In re Application of Cellco Partnership dba Verizon Wireless (SDNY10-14-09)(neither downloading ringtones to customer cell phones nor activating them when a call comes in constitutes a public performance of the musical work embodied in the ringtone)

Tuesday August 25

 We will discuss the Cartoon Network case, assigned for Thursday's reading.  Our next topic will be the copyright protection of computer software.  The three primary cases, each the leading case dealing with one of the three primary problem areas for computer programs under copyright are the following, which we will take up in the order shown (and probably spend several class days on them):

Computer Associates v. Altai, 982 F.2d 693 (2nd Cir. 1992)
Lotus Development Corp. v. Borland Internat'l, 49 F.3d 807 (1st Cir. 1995)
Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)

Some provisions of the statute that you will want to read in connection with these cases are section 101 (definition of "computer program"), section 117, and section 107.

Additional Reading:  Dennis S. Karjala, A Coherent Theory for the Copyright Protection of Computer Software and Recent Judicial Interpretations, 66 U. Cincinnati L. Rev. 53 (1997); Dennis S. Karjala, Copyright Protection of Computer Program Structure, 64 Brooklyn L. Rev. 519 (1998).

Thursday August 27

    We will continue our discussion of the three major computer software copyright cases assigned above.

Tuesday September 1

    We will continue our discussion of the three major computer software copyright cases assigned above.

Thursday September 3

    We will finish our discussion of Lotus v. Borland and will discuss the reverse engineering issue in Sega.  Our next (brief) topic will be the RAM copying issue, illustrated by MAI Systems v. Peak Computer, 991 F.2d 511 (9th Cir. 1993), the small modification of section 117 in 1998 (section 117(c)), and the section 117 aspects of Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005)(to page 1318). 

Tuesday September 8

    After RAM copying, we will take a fast look at the question of derivative works and fair use, plus a little introduction to the notion of copyright misuse, which is arising with increasing frequency.  You will want to read section 101 (definition of "derivative work"), section 107, Lewis Galoob Toys v. Nintendo, 964 F.2d 965 (9th Cir. 1992, Lasercomb American v. Reynolds, 911 F.2d 970 (4th Cir. 1990), Microstar v. Formgen, 154 F.3d 1107 (9th Cir. 1998), and Assessment Technologies v. WIREdata, 350 F.3d 640 (7th Cir. 2003).

Additional reading:  Dennis S. Karjala, Copyright Protection of Operating Software, Copyright Misuse, and Antitrust, 9 Corn. J. L. & Pub. Pol. 161 (1999)

Thursday September 10

    Continue with Tuesday's materials

Tuesday September 15, Thursday September 17 (and beyond)

    We will first discuss Microstar, Lasercomb, and Assessment Technologies.  We will then move on to the DMCA anticircumvention rules:  Copyright Act  §§ 1201 & 1202; 321 Studios v. MGM, 307 F. Supp. 2d 1085(N.D. Cal. 2004); Lexmark International, Inc v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004)6th Cir. 2004; Chamberlain Group v. Skylink Technologies, 381 F.3d 1178 (Fed. Cir. 2004); Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005); Davidson & Assocs [Blizzard] v. Jung, 422 F.3d 630 (8th Cir. 2005).  Our next topic will be "licensing" of widely distributed products, focusing on the recent district court decision in MDY Indus. v. Blizzard, 616 F. Supp. 2d 958 (D. Az. 2009)(DMCA issues) and MDY v. Blizzard, 2008 WL 2757357 (copyright issues).  Here is Blizzard's Response Brief, filed Oct. 28. 2009.

.   On the issue of unauthorized use of an authorized password, see Egilman v. Keller & Heckman, LLP, 401 F.Supp.2d 105 (D.D.C. 2005).  More on circumvention and copyright in Ticketmaster v. RMG Technologies, 507 F.Supp.2d 1096 (C.D. Cal. 2007).

Additional Materials:

• How to Decrypt a DVD:  in Haiku Form
• Gallery of CSS Descramblers (giving various examples trying to show the logical difficulties in the position that source code can be distinguished from other forms of written expression)
• For Karjala's take on how the DMCA access provisions apply to software, see Dennis S. Karjala, Access to Computer Programs under the DMCA, 25 John Marshall J. Comp. & Info. L. 641 (2009)
• You may also wish to read Jordan Redman's analysis of the license issues in MDY v. Blizzard:  Jordan Christopher Redman, MDY Indus. v. Blizzard:  Software "Contracts" that Expand Copyrights Have Gone Too Far, 49 Jurimetrics J. 317 (2009)
• RealNetworks v. DVD Copy Control Ass'n, 2009 WL 2475338 (N.D. Cal. 2009)(DMCA violation to distribute DVD circumvention software and DMCA violation is not excused by possibility that the software allowed users to make a fair use backup copy)
• Vernor v. Autodesk, Inc., No. C07-1189RAJ (W.D. Wa. 9-30-09)

Tuesday September 22, Thursday September 24

    We will continue discussing the cases assigned for last week.

Tuesday September 29

    Mike Donnelly and Lance Venable, the plaintiff and his attorney in the MDY Industries case, will present an inside view of the litigation and its background.  Be sure you have read the district court's opinion (above) before class, and you should also read the opening brief that has been filed in the appeal to the Ninth Circuit.  You might also want to look at some of the trial record, especially Mike Donnelly's testimony at pp. H1-H40.  It makes very interesting reading.

Additional Materials:

MDY v. Blizzard, Amicus Brief to 9th Circuit filed by Public Knowledge, 9-23-09

Thursday October 1

    We will continue discussing aspects of MDY v. Blizzard.  We might also want to discuss some recent litigation involving the DMCA:  Odioworks v. Apple, CV-09-1818 (N.D. Cal. 4-27-09)(declaratory judgment action arguing that wiki users who post information on how to reverse engineer the Apple i-Phone to allow interoperability with non-iTunes software do not infringe Apple copyrights or the DMCA)

    Our next topic will be liability of internet service providers for infringing works that are found floating around the internet.  Read first the case on which the DMCA statutory provisions are based, RTC v. Netcom, 907 F. Supp. 1361 (N.D. Cal. 1995); then try to get on top of section 512.  Two recent cases dealing with the 512(c) safe harbor is UMG v. Veoh, 2008 WL 5423841 (C.D. Cal. 2008) and IO Group v. Veoh, 586 F. Supp. 2d 1132 (N.D. Cal. 2008).  We will also read Perfect 10 v. CCBill, 488 F.3d 1102 (9th Cir. 2007); Perfect 10 v. Visa International, 494 F.3d 788 (9th Cir. 2007)

    Additional materials:

• RIAA v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003)(DMCA subpoena provisions)
• Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 9-30-2004)(liability under 512(f) for misrepresentations to a service provider resulting in the removal of material from a web site)
• US Copyright Office Summary of the DMCA (December 1998)(pdf format)
• In re Verizon Internet Services, 240 F. Supp. 2d 24 (D.D.C., Jan. 21, 2003)(lower court opinion in the Verizon case on the DMCA subpoena provisions)
• In re Verizon Internet Services, 257 F. Supp. 2d 244 (D. D.C. 2003)(case & controversy and First Amendment aspects of the Verizon case)
• ALS Scan Inc. v. Remarq Communities, Inc. (4th Cir. Feb. 6, 2001)(ISP liability after substantially complJiant notice under the DMCA); 17 U.S.C. § 512(c)
• Gone With the Wind heirs threaten Project Gutenberg, Teleread, Oct. 29, 2004 (Gone with the Wind is currently in the public domain in Australia, but the Margaret Mitchell estate is threatening a site that has put the work online, making it available in countries where it is still protected)

Tuesday & Thursday October 5 & 7

    We will continue with the ISP cases under section 512.

Tuesday  October 20 & 22

    After we finish the ISP liability cases under the DMCA, we will take up the related problem under trademark law.  The primary case is Tiffany v. eBay, 576 F. Supp. 2d 463 (S.D.N.Y. 2008). 

Thursday October 22

    Interlude on SCO Group v. Novell, 578 F.3d 1201 (2009)(rights to UNIX and Linux).  Then we will continue with the section 512 cases and Tiffany.

    Additional Materials: Dennis Karjala, UNIX, Linux, and the Software Copyright (PowerPoint presentation 9-05)

Tuesday  October 27

    Tiffany v. eBay, 576 F. Supp. 2d 463 (S.D.N.Y. 2008).  After Tiffany, we will take up the problem of trademark liability for metatags and keywords used in internet searching.  We will read Rescuecom Corp. v. Google, Inc., 562 F.3d 123 (2nd Cir. 2009); Playboy Enterprises, Inc. v. Netscape Communications Corp., 354 F.3d 1020 (9th Cir. 2004).  Some relevant provisions of the Lanham Act are sections 1114(1) and 1125(a).

    Additional Materials:  Justin Nicholas Redman, Post Tiffany (Nj) Inc. V. Ebay, Inc.: Establishing a Clear, Legal Standard for Online Auctions, 49 Jurimetrics Journal 467 (2009); Paris Court Fines eBay for Counterfeiting Trademarks Through Keyword-Based Ads (BNA Summary 9-18-09)

Thursday October 29

    We will continue our discussion of Tiffany v. eBay.  Then we will start on the keywords/metatags problem under trademark law:  Rescuecom Corp. v. Google, Inc., 562 F.3d 123 (2nd Cir. 2009); Playboy Enterprises, Inc. v. Netscape Communications Corp., 354 F.3d 1020 (9th Cir. 2004).  Some relevant provisions of the Lanham Act are sections 1114(1) and 1125(a). 

Tuesday November 3

    Interlude on Blizzard's Response Brief in MDY v. Blizzard. 

    We will finish then our discussion of the keywords/metatags issue.  Following that, we have another very recent case involving the "reflashing" of a branded telephone so that it will work on another network.  Is that a new product that (confusingly) still carries the name of the original maker, or is this a mere "repair"?  MetroPCS Wireless v. Virgin Mobile, 2009 WL 3075205 (N.D.Tex. 2009). 

    We will then look at the recently filed complaint by the US Chamber of Commerce against the Yes Men, which raises the issue of the trademark status of a parody/prank/hoax site on the internet:  Chamber of Commerce v. Servin, Complaint, filed 10-26-09 (D.D.C.); BNA summary of Coc v. Servin.  Possibly relevant cases are PETA v. Doughney, 263 F.3d 359 (4th Cir. 2001) and Lamparello v. Falwell (4th Cir. 2005)(which also ties in with our cybersquatting materials, coming up)

Thursday November 5, Tuesday November 10

    We will continue the materials from Tuesday.  The next topic is cybersquatting:  Anticybersquatting Consumer Protection Act of 1999 (ACPA), 15 U.S.C. § 1125(d); P.L. 106-113 (full text of ACPA, including provisions for protecting individual names not registrable as trademarks); Uniform Disputer Resolution Policy (ICANN, Oct. 24, 1999); Virtual Works, Inc. v. Volkswagen of American, Inc. (4th Cir. Jan. 2001)(pdf format)(html)(registration of "vw.net" was in bad faith under the ACPA because other names, like "vwi.net" were available and because registrant consciously thought at the time of registration that "vw.net" would likely be quite valuable to someone); Springsteen v. Burgar and Bruce Springsteen Club (WIPO Administrative Panel Decision, January 2001).  We also want to take a look at the Computer Fraud and Abuse Act (CFAA): 18 USCA sec.1030; Register.com v. Verio, Inc., 356 F.3d 393 (2nd Cir. 2004)

    Additional Materials:

•  Storey v. Cello Holdings LLC, 2nd Cir. 10-09-2003 (dismissal of earlier ACPA action with prejudice does not preclude bringing a subsequent UDRP or ACPA claim based on continued use of the trademark in a domain name and new activities showing bad faith)
• Referee Enterprises, Inc. v. Planet Ref, Inc. (E.D. Wisc. Dec. 2000)(registered mark in "Referee" infringed by use in "ereferee.com," "ereferee.net," and "ereferee.org"); but cf. Referee Enterprises v. Planet Ref, UDRP Decision, June 2000 (finding that respondent sports store had a legitimate interest in the "ereferee" name and that the term "referee" was generic so that, even if it had secondary meaning for a magazine title, all uses could not be preempted)
• Netlearning, Inc. v. Parisi (UDRP Proceeding Oct. 16, 2000)(ordering transfer of domain name notwithstanding that respondent's registration of "netlearning.com" preceded complainant's first use of "netlearning" as a trademark); Parisi v. Netlearning, Inc. (E.D. Va. 2001)(Federal Arbitration Act's restrictions on judicial review of arbitration awards do not apply to civil actions challenging UDRP panel decisions)
• Heathmount A.E. Corp. v. Technodome.com (E.D. Va. Dec. 29, 2000)(due process requirements for in personam jurisdiction do not apply to the ACPA's in rem procedure and Congress did not exceed its authority in deeming a domain name to be "property" for this purpose)
• Alitalia-Linee Aeree Italiane S.p.A. v. Casinoalitalia.com (E.D. Va. Jan. 19, 2001)(a mark owner may proceed under the ACPA either in personam against an infringer or, in certain circumstances where this cannot be done, the owner may proceed in rem against the domain name; a mark owner may not proceed against both at the same time)
• Northland Insurance Cos. v. Blaylock (D. Minn. Sept. 25, 2000)(registration and use of domain name containing another's trademark for the purpose of criticizing the trademark owner is not infringing nor does it violate the ACPA)
• If "X-sucks.com" is a permitted use of the trademark X, how about "ilikeX.com"?  Ikea, apparently, is unhappy about the Swedish registration iloveikea.se (June 2009).

Thursday November 12

    Interlude on Facebook, Inc. v. Power Ventures, Inc., 91 U.S.P.Q.2d 1430 (N.D.Cal.2009).  Interlude on oral argument in Bilski v. Kappos, 11-9-09 (requires Westlaw login).  Then we go back to our trademark cases and anticybersquatting.

Tuesday November 17, Thursday November 19, Tuesday November 24

    We will discuss the Yes Men litigation and the cybersquatting materials.  Then we move to our final major topic for the semester, which is the Google Book Project and the proposed settlement of the U.S. litigation related thereto.  The Project and proposed settlement are described in Kate M. Manuel, The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law? (Cong. Res. Service 9-25-09).  An early analysis of the competition issues is Randal C. Picker, Assessing Competition Issues in the Amended Google Book Search Settlement (Working Paper 11-16-09).  Objectors to at least some aspects of the settlement are the Copyright Office, the National Writers Union, and the Chinese Writers Association.  A short economic analysis of the settlement is Paul N. Courant's, What's at Stake in the Google Book Search Settlement? (Economist's Voice Oct. 2009).  Here is BNA's summary of the revised settlement (11-18-09), and here is a link to the amended settlement itself.