COMM 492-Exam 2

Digital Millennium Copyright Act of 1998

"Safe harbor" from liability for online server providers.

Anti-Cybersquatting Consumer Protection Act

1. Intent to profit for the mark 2. Use a domain name that is identical or similar 3. Trademark is famous at the time 4. Domain name is exact or similar to the trademark 5. Protected trademark

Fair Use

1. Purpose/Character of the New Use 2. Nature of the Copyrighted Work 3. Amount (of the Original) Used 4. Effect on the Market for the Original Work

Likelihood of Confusion

1. Similarity of the marks 2. Evidence of Actual Confusion 3. Marketing Channels used 4. Degree of care likely to be exercised 5. Defendant's intent in selection the mark 6. Likelihood of expansion of the product line

Progression of online file sharing

1. UMG Recordings v. MP3.com 2. A&M Records v. Napster 3. Metro-Goldwyn Mayer Studios v. Grokster

A&M Records v. Napster

1st copyright case using peer-to-peer. Contributory infringement by websites/companies make it easy for others to infringe on copyrights. Audio Home Recording Act and Digital Millennium Copyright Act. Napster was shut down

Metro-Goldwyn Mayer Studios v. Grokster

Contributory infringement by websites/companies that make it easy for others to infringe on copyrights. Ruled that Grokster was liable of the resulting act of the members who used the software since they were facilitating a way for people to infringe on the media, regardless of their information on what their members were uploading.

Wal-Mart Stores v. Wallmartcanadasucks.com

Domain names as items of expression (free speech), plus parody and criticism within domain names. Ruled in favor of Wallmartcanadasucks.com since they weren't exactly the same

Kremen v. Cohen

Domain names as property to be bought and sold (and stolen) under contract law. Sex.com. Cohen was liable for contract fraud with his forged documents

Effect on the Market of the Original Work

Have you damaged the original owner's marketplace/their ability to make money off of it?

Audio Home Recording Act of 1992

Non-commercial users to be protected from copyright infringement liability

RealNetworks v. Streambox

Possible violations of the anti-circumvention clause of the DMCA Ruling was that Streambox violated the secret handshake and copy switch

Universal City Studios v. Corley

Possible violations of the anti-circumvention clause of the DMCA. DMCA was ruled that it did not violate the First Amendment as a content neutral regulation

MTV Networks v. Curry

The first significant case on domain names as intellectual property (trademarks). Out of court settlement

Hasbro v. Clue Computing

Trademark dilution in various forms. The Hasbro case adds issues that arise for common terms like "clue"

Playboy Enterprises v. Welles

Trademark dilution in various forms. Used the term PMOY as a metatag and watermark on personal website.

Copyright Misuse

Unfair exercise of market power

Purpose/Character of the New Use

What did you do with the work you took? Acceptable without authorization: Commentary, criticism, teaching, research. Transformative Use

ProCD v. Zeidenberg

Whether "clickwrap" and "browsewrap" licenses are enforceable contracts under contract law

Specht v. Netscape Communications

Whether "clickwrap" and "browsewrap" licenses are enforceable contracts under contract law. Browse wrap agreement was not enough to allow for arbitration to occur

UMG Records v. MP3.com

Whether "time shifting" and "space shifting" of media products qualify for the fair use defense. But MP3.com did violate copyright infringement since no authorization from record companies.

Sony Corp. of America v. Universal City Studios

Whether "time shifting" and "space shifting" of media products qualify for the fair use defense. Sony won. If Universal won, probably no recording devices today. Fair use was good for the public, not going to harm the market too badly

Playboy Enterprises v. Frena

Whether online copying violates the provisions of copyright law that allow the owner to control distribution. Frena created a subscription computer bulletin board service and people uploaded copyrighted Playboy photos. Playboy argued that Frena was liable for copyright infringement since he provided the service. Contributory negligence

Perfect 10 v. Amazon

Whether online copying violates the provisions of copyright law that allow the owner to control distribution. The Perfect 10 case adds the issue of thumbnail images in place of the larger originals. Transformative Use

Estoppel

argument in court to drop the law suit because it doesn't make sense

Browse Wrap Agreement

contract or license agreement covering access to or use of materials on a web site or downloadable product - typically posted on a web site via hyperlink. by using the site or download, you are automatically agreeing to the terms

Vicarious Infringement

encouraging and benefiting. One step more serious than contributory infringement

Novel Theory

first case to come about going after company instead of individual users

Cybersquatting

getting a domain name just to sell it

Contributory Infringer

giving someone the means to infringe on someone's copyright

Harm to Market

harm to sale

Unclean Hands

if it's unethical, then they shouldn't be able to sue

Copyright

is a matter of permission authorization rather than profit

Nature of the Copyrighted Work

is it something that was copyrighted and made available?

Anti-Circumvention

law that prohibits the circumvention of technology. Illegal to hack into someone else's technology. WIPO copyright treaty in 1996 created the Digital Millennium Copyright Act which made circumvention illegal

Normative Use

legal doctrine that provides affirmative defense to trademark infringement. A person may use the trademark of another as a reference to describe a product of their own

Space Shifting

listening to music outside of the home. But the more you copied something, the worse quality it had. File sharing is an exact copy, no decrease in quality

Promissory Estoppel

one party in the contract make a false promise

Equitable Estoppel

one party in the contract withheld some informaiton

Amount (of the Original) Used

percentage or proportion of the original used. Parody and Satire (only use just enough so that people understand what you are paying tribute to)

Intellectual Property/Intangible Property

property surrounding creative items in your mind. 1. Patents (inventions. Expire in 20 years). 2. Trademarks (logos to identify a company. Can be renewed every 20 years). 3. Copyrights (to protect against plagiarism. Lasts for the life of the author + 70 years. In the Constitution)

Safe Harbor

protects online service providers from liability for information posted or transmitted by subscribers if they quickly remove or disable access to material identified in a copyright holder's complaint

Time Shifting

recording something to view at a later time

Lanham Act

regulates the use of trademarks

McVeigh v. Cohen

showed that the harm from having your anonymous online speech exposed could be strong enough for court action (or more specifically in that case, a preliminary injunction)

Preliminary Injunction

stop doing whatever you are doing immediately

Bad Faith

the intentional deception of another person

Network Effects/Extranalities

the network becomes more powerful the more people use it (Facebook)

Transformative Use

turning the original into something at least partially new

Arbitration

two sides present their evidence to an arbitrator who decides who wins and losses. Acts as both judge and jury

Click Wrap Agreement

user must manifest assent to the terms and conditions by clicking on an "i agree" box

American Civil Liberties Union v. Miller

anonymous online speech is protected by the 1st Amendment like other types of anonymous speech