Don't Copy That Floppy: The IP Enforcement Dilemma in The United States

NEWMAN FINAL (DO NOT DELETE)
3/11/2014 5:08 PM
Dont Copy That Floppy: The IP Enforcement Dilemma in the United States
Kevin Newman*
ABSTRACT The United States declared independence from Great Britain on July 4, 1776. Even though the Founding Fathers never contemplated the Information Age that now exists, property rights and inventions were something that they believed needed protection. The rapid technological developments of the past fifty years have led to a concurrent rapid development of law to deal with them. However, because of the swift pace of technology and innovation, laws do not always keep up with the times. In particular, intellectual property laws have been behind the curve when it comes to proper enforcement and the protection of individual rights. This Note seeks to clarify the current trend of intellectual property law enforcement in the United States, compare laws in the United States to similar statutes and approaches in certain foreign jurisdictions, and seeks to harmonize with bestpractice suggestions for the future. The United States, as the center for innovation, must develop reasonable and modern intellectual property laws to continue as the world leader in intellectual property development. I. INTRODUCTION The battle over how strictly to enforce intellectual property (IP) protections boiled over in 2012 with public outcry over several bills pending in Congress.1 The Stop Online Piracy Act (SOPA) in the United States House of Representatives (House)2 and the Protect Intellectual Property Act
* Candidate for Juris Doctor, New England Law | Boston (2014). B.A., History, Political Science, Boston College (2006). I would like to thank the editors and associates of Volumes 39 and 40 for their hard-work and dedication. In addition, I would like to thank my family for their support. 1. Jordan Mallory, Events 2012: SOPA, JOYSTIQ.COM (Jan. 2, 2013), http://www.joystiq.com/2013/01/02/events-2012-sopa/. 2. Stop Online Piracy Act, H.R. 3261, 112th Cong. (2001), available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr3261ih/pdf/BILLS-112hr3261ih.pdf (last visited Feb. 20, 2013).
191
(9) NEWMAN.DOCX (DO NOT DELETE)
3/11/2014 5:08 PM
192
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 40:191
(PIPA) in the United States Senate (Senate)3 were both stopped in their tracks by online activism and pressure by industry groups that were opposed to the heavy-handed approach taken by the bills.4 Towards the end of the acrimonious debate, several prominent members of Congress came out against the proposed legislation.5 Even with a hard-fought victory over both of the bills, the status quo and ad hoc approach to IP enforcement remained in force in the United States.6 With no major overhaul of IP laws in almost a decade, there is growing concern that the United States might begin to fall behind in terms of IP development.7 Actions by other countries to enforce IP laws have taken multiple forms,8 so the United States must adopt the best practices to make sure that it remains the leader in IP development.9 In particular, the United States should consider adopting a specialty court to deal exclusively with IP issues, as Japan already does.10 At the same time, penalties in the United States for IP enforcement are too harsh and exemptions are not widespread or permanent.11 Even though the United States has made progress in developing ad hoc standards through the judicial system,12 a standardized and
3. PROTECT IP Act of 2011, S. 968, 112th Cong. (2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s968is/pdf/BILLS-112s968is.pdf (last visited Feb. 20, 2013). 4. Press Release, Chairman of House Judiciary Comm., Lamar Smith, Statement from Chairman Smith on Senate Delay of Vote on PROTECT IP Act (Jan. 20, 2012) (on file with author); see MPAA Chairman Christopher Dodd: SOPA and PIPA are Dead, GAMEPOLITICS.COM (Oct. 10, 2012), http://gamepolitics.com/2012/10/04/mpaa-chairmanchristopher-dodd-sopa-and-pipa-are-dead#.USsFYzD_mSo. 5. Aaron Sekhri, Rep. Issa Discusses SOPA/PIPA, STANFORD DAILY (Apr. 10, 2012), http://www.stanforddaily.com/2012/04/10/sopa/. 6. See generally Copyright Term Extension Act, 17 U.S.C. 108, 203(a)(2), 301(c), 302, 303, 304(c)(2) (1998). 7. Kaori Kaneko, Japan Seeks to Join U.S.-led Pacific Trade Talks, Reform Hopes Rise, CHI. TRIBUNE (Mar. 15, 2013), http://www.chicagotribune.com/news/sns-rt-us-tradeasiapacific-japanbre92e03f-20130314,0,3359451.story; see also David Kravets, Copyright Chief Urges Congress to Produce Next Great Copyright Act, WIRED.COM (Mar. 20, 2013), http://www.wired.com/threatlevel/2013/03/next-great-copyright-act/. 8. See, e.g., Digital Economy Act, 2010, c. 24 (U.K.); Copyright Modernization Act, S.C. 2012, c. 20 (Can.). 9. See, e.g., Global Patent Filings Rose 6.6% in 2012, WIPO Reports, PHYS.ORG (Mar. 19, 2013), http://phys.org/news/2013-03-global-patent-rose-wipo.html. 10. INTELLECTUAL PROP. HIGH COURT, http://www.ip.courts.go.jp/eng/aboutus/history/index.html (last visited Mar. 16, 2013). 11. Digital Millennium Copyright Act, 17 U.S.C. 512, 1201-1205, 1301-1332 (1998). 12. See, e.g., Court Jurisdiction, COURT JURISDICTION UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT, http://www.cafc.uscourts.gov/the-court/courtjurisdiction.html (last visited Mar. 16, 2013).
3/11/2014 5:08 PM
2014]
DONT COPY THAT FLOPPY
193
unified system with a fairer method of IP enforcement must be the ultimate goal. This Note will argue that the current system of IP enforcement in the United States is inadequate to meet the challenges of the twenty-first century. In addition, the current system does not sufficiently protect the First Amendment rights of ordinary citizens.13 However, the United States should not implement a completely different model. Instead, the United States should develop a hybrid model that adopts best practices from around the world, such as lighter civil and criminal penalties for noncommercial infringers and a separate IP court system, while maintaining an American identity that encompasses Article I and Article III courts.14 Part II will provide a brief overview of both the constitutional and statutory bases for IP protection and enforcement in the United States. Part III will examine several recent pieces of legislation that attempted to go too far in protecting rights-holders at the expense of First Amendment freedoms. Part IV will look to certain foreign jurisdictions and how they deal with IP enforcement problems. Part V will explain the benefits that a hybrid system would bring to the IP enforcement environment in the United States. Finally, Part VI will conclude by laying out a roadmap for how the United States can best implement a hybrid approach to IP enforcement. II. OVERVIEW OF INTELLECTUAL PROPERTY LAW IN THE UNITED STATES When the United States of America was established in the latter half of the eighteenth century,15 the Information Age was not even under consideration.16 The Founders did not contemplate the implications of computers and the Internet, though they did contend with property rights and the protection of inventions.17 The Constitution laid out in particular language how these things might be protected and set in motion the first IP enforcement scheme.18 A. Constitutional Basis for Intellectual Property Protections The Constitution makes clear that Congress has the ability to craft legis-
13. See U.S. CONST. amend. I (stating no explicit protection for free expression when using copyrighted works). 14. See infra Parts V.A, V.B.1. 15. See generally THE DECLARATION OF INDEPENDENCE (U.S. 1776). 16. See, e.g., COMPUTER HIST. MUSEUM, http://www.computerhistory.org/babbage/history/ (last visited Mar. 29, 2013) (explaining how the first attempts at a computer began with Charles Babbage in the 1830s). 17. See, e.g., U.S. CONST. art. I, 8, cl. 8; see also THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 18. See U.S. CONST. art. I, 8, cl. 8; see also U.S. CONST. amend. V.
3/11/2014 5:08 PM
194
[Vol. 40:191
lation concerning inventions and ideas.19 In Article I, Section 8, Clause 8, Congress has the power [t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.20 This language was the work of two principal authors, Charles Pinckney and James Madison.21 The Committee of Detail, which was in charge of creating the appropriate language for inclusion in the Constitution, agreed on this exact language.22 It was then unanimously adopted by the Constitutional Convention without debate.23 IP exists in three separate forms: patents, copyrights, and trademarks.24 The Constitutional Convention explicitly protected two of them: patents and copyrights.25 From Article I, Section 8, Clause 8, the Supreme Court interpreted the protection of copyrights to fall under the progress of science and patents to fall under the useful arts.26 Trademarks, the third IP category, eventually fell under the Commerce Clause.27 With the establishment of some form of IP protection in the Constitution, it fell to Congress to implement the language as set out in Article I.28 B. Statutory Basis for Intellectual Property Protections Congress implemented Article I, Section 8, Clause 8, through a series of laws that would span almost two centuries.29 Even though multiple laws addressed the issue of IP, the three main statutes controlling the issue were the Copyright Acts of 1790 (1790 Act),30 1909,31 and 1976.32 The first, the 1790 Act, was modeled after a similar statute in the United Kingdom called
U.S. CONST. art. I, 8, cl. 8. Id. WILLIAM F. PATRY, COPYRIGHT LAW AND PRACTICE 23-25 (The Bureau of National Affairs, Inc. 1994). 22. Id. 23. Id. 24. What Is WIPO?, WIPO.INT, http://www.wipo.int/about-wipo/en/ (last visited Mar. 25, 2013). 25. See U.S. CONST. art. I, 8, cl. 8. 26. See generally Graham v. John Deere Co., 383 U.S. 1 (1966). 27. See generally U.S. CONST. art. I, 8, cl. 3. 28. See U.S. CONST. art. I, 8, cl. 18. 29. See generally Act of May 31, 1790, ch. 15, 1, 1 Stat. 124 (1790) [hereinafter 1790 Act]; Act of Mar. 4, 1909, ch. 320, 23-24, 35 Stat. 1080-1081 (1909) [hereinafter 1909 Act]; 17 U.S.C. 101-1332 (1976). 30. 1790 Act 1. 31. 1909 Act 23-24. 32. 17 U.S.C. 101-1332.
19. 20. 21.
3/11/2014 5:08 PM
2014]
195
the Statute of Anne.33 The 1790 Act protected books, maps, and charts and dealt with any violations within the United States.34 Most notably, the Supreme Court used this Act to move beyond the common law of copyright that had developed over the past century or so.35 After more than a century without a major restructuring of the United States IP laws, President Theodore Roosevelt prodded Congress into acting again.36 The Copyright Act of 1909 (1909 Act) was the result of Congress work and in some ways was much more progressive than the law that eventually passed in 1976.37 The main thrust of the 1909 Act brought published works directly under the control of federal law and left unpublished works to state law.38 In addition, published works needed a copyright notice affixed to them, or they were considered part of the public domain.39 Notably, the 1909 Act left out motion pictures until the Act was amended in 1912.40 In the second-half of the twentieth century, the impetus fell on the United States to update its IP enforcement laws again.41 Compared to previous legislation, the Copyright Act of 1976 (1976 Act) was much more farreaching.42 It was created in response to the continuing pace of technological advancement but also to fulfill the United States obligations under the Universal Copyright Convention.43 The 1976 Act gave more protections to copyright holders by allowing for the protection of fixed works as opposed to published works.44 It gave the holders specific rights to their copyright,45 but allowed others to use the copyright through the fair use doctrine.46 In addition, the 1976 Act generously extended the length of
Stat. of Ann., 1710, 8 Ann., c. 19 (U.K.). 1790 Act 1. Wheaton v. Peters, 33 U.S. 591, 604 (1834). Theodore Roosevelt, President of the U.S., Fifth Annual Message (Dec. 5, 1905), in MESSAGES AND PAPERS OF THE PRESIDENTS 6973, 7011-12 (1913). 37. 1909 Act 23-24 (1909). 38. Id. 39. Id. 40. Id. (prior to Townsend Amendment of 1912). 41. See, e.g., Kravets, supra note 7. 42. 17 U.S.C. 102 (1976). 43. United States Copyright Office: A Brief Introduction and History, U.S. COPYRIGHT OFFICE INFO. CIRCULAR, http://www.copyright.gov/circs/circ1a.html (last visited Feb. 23, 2013). 44. 17 U.S.C. 102. 45. Id. 106. 46. Id. 107 ([four] factors to be considered [including] . . . [1] purpose and character of the use . . . [2] nature of the [] work . . . [3] amount and substantiality of the work used in relation to the . . . whole . . . [4] effect of the use upon the potential market for or value
33. 34. 35. 36.
3/11/2014 5:08 PM
196
[Vol. 40:191
copyright holder rights.47 It gave authors a right for life plus fifty years or, for any works published before 1978, a total of seventy-five years.48 Even though several laws have been enacted that supplement or modify certain provisions, this law is still the basis for the United States IP laws.49 III. AD HOC APPROACH TO INTELLECTUAL PROPERTY LAW ENFORCEMENT IN THE UNITED STATES Even with the 1976 Act, the United States continually needs a larger set of tools to conduct IP enforcement.50 The gradual development of new technologies has pushed Congress to pass new legislation and required the courts to decipher this complex field.51 However, the lack of a unified approach to IP enforcement has slowly fragmented the regime.52 In addition, the 1976 Acts balanced approach to the rights of IP holders and end users began to tilt towards IP holders.53 A. Statutory Approach to IP Enforcement The primary approach the United States takes when implementing additional IP enforcement provisions is through the legislative process.54 While industry organizations, non-governmental organizations (NGOs), and individual citizens are the normal actors that drive legislation, the United States is also faced with international obligations.55 In particular, the World Intellectual Property Organization (WIPO), the successor to the United Interna-
of . . . the copyrighted work.). 47. Id. 302. 48. Id. 49. David Nimmer, Codifying Copyright Comprehensibly, 51 UCLA L. REV. 1233, 1320 (2004) (discussing the amount of amendments that were incorporated into the 1976 Act and the numerous additions that were made in the prior decade). 50. See Kravets, supra note 7. 51. See, e.g., Leahy-Smith America Invents Act of 2011, Pub. L. No. 112-29, 125 Stat. 284-341 (2013). 52. See, e.g., Karen Redmond, District Courts Selected for Patent Pilot Program, THIRD BRANCH NEWS (June 7, 2011), http://www.uscourts.gov/News/NewsView/11-0607/District_Courts_Selected_for_Patent_Pilot_Program.aspx (explaining about program to give federal judges in specific judicial districts training on how to speed up patent cases). 53. Brian W. Carver, Why License Agreements Do Not Control Copy Ownership: First Sales and Essential Copies, 25 BERKELEY TECH. L.J. 1887, 1890 (2010) (boilerplate [end-user license agreements] that purport to restrict statutory rights [that users of copyrighted works] have grown accustomed to . . . and [that] Congress intended that [end-users] have them as part of [a] larger effort to craft a balanced Copyright Act.). 54. See generally Kravets, supra note 7. 55. See generally U.S. CONST. art. II, 2-3.
3/11/2014 5:08 PM
2014]
197
tional Bureau for the Protection of Intellectual Property (BIRPI),56 has driven legislative development in the United States so that it complies with treaty obligations.57 1. Digital Millennium Copyright Act The most pertinent example of IP treaty obligations came from the WIPO in the mid-1990s.58 The WIPO adopted the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty at a diplomatic conference in December 1996.59 Partially in response to these treaties, the United States enacted the Digital Millennium Copyright Act (DMCA).60 The DMCA modified 17 U.S.C. 102 in part to conform to almost every international IP treaty created since the late nineteenth century.61 The United States is a signatory to most international treaties on IP protection,62 even though Congress includes language limiting their effect.63 Specifically, Congress limited the Berne Convention,64 the first major treaty on IP protection,65 to only cover copyrights that fell directly under language established by Congress.66 It also limited the WIPO Performances and Phonographs Treaty to only cover music.67 This type of language stands in contrast to 1201 of the DMCA.68 Specifically, 1201 is called Anti-Circumvention Provisions and deals with a range of actions prohibited under the Act.69 The Act breaks down viola-
56. WIPO Treaties General Information, WIPO.INT, http://www.wipo.int/treaties/en/general/ (last visited Feb. 22, 2013). 57. What Is WIPO?, supra note 24. 58. Id. 59. WIPO Performances and Phonograms Treaty (WPPT), WIPO.INT, http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html (last visited Feb. 22, 2013); WIPO Copyright Treaty, WIPO.INT, http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html (last visited Feb. 22, 2013). 60. Digital Millennium Copyright Act, 17 U.S.C. 512, 1201-1205, 1301-1332 (1998). 61. 17 U.S.C. 102. 62. See generally WIPO-Administered Treaties, WIPO.INT, http://www.wipo.int/treaties/en/ (last visited Mar. 15, 2013). 63. 104(c)-(d). 64. Id. 104(c). 65. WIPO A Brief History, WIPO.INT, http://www.wipo.int/aboutwipo/en/history.html (last visited Mar. 15, 2013). 66. 104(c). 67. Id. 104(d). 68. Id. 1201-1205. 69. Id. 1201.
3/11/2014 5:08 PM
198
[Vol. 40:191
tions into either access-control or copy-control circumvention.70 These would seem to be quite broad and harsh; however, the Act also contains a significant number of exceptions.71 These exceptions apply to minors, law enforcement officers, researchers, and several other protected groups.72 In addition, there is a special exemption created through a rulemaking proceeding, which allows for copyrighted materials to be circumvented for non-infringing uses.73 This special exemption has been a source of controversy because each one only lasts three years.74 Both of these exceptions are limited in scope since a later provision prevents it from being used as a defense against other violations.75 While this Act has been used as an example of rights holders overreaching,76 the number of exceptions raises the possibility that harsh enforcement is not the main aim of the legislation.77 2. Copyright Term Extension Act Even though the DMCA has some redeeming qualities, such as the number of statutory exceptions, the Copyright Term Extension Act (CTEA)78 was a step in the wrong direction for ordinary citizens.79 As it can be understood from the Acts name, the main focus was extending the amount of time rights holders could keep their works copyrighted.80 This extension added twenty years to the existing 1976 Act.81 Therefore, works published before January 1, 1978 were protected up to ninety-five years, and published works after that date could be protected for at least the life of the author plus seventy years.82 Unlike previous pieces of legislation that dealt with IP enforcement, the resistance to this bill was much larger than before.83 In particular, the bills detractors began to call it the Mickey Mouse Protection Act because of
Id. 1201(a)(2), (b)(1). Id. 1201(d)-(j). Id. Id. 1201(b)-(c). See id. 1201(c); see, e.g., Rebecca Greenfield, The Ban on Cellphone Unlocking Has Gone Too Far, THE ATLANTIC (Mar. 8, 2013), http://www.theatlanticwire.com/technology/2013/03/ban-cellphone-unlocking/62919/. 75. 1201(e). 76. See, e.g., Greenfield, supra note 74. 77. See, e.g., 1201(a)(1) (specific exemption procedure). 78. See id. 108, 203(a)(2), 301(c), 302, 303, 304(c)(2). 79. See Keeping Copyright in Balance, Editorial, N.Y. TIMES (Feb. 21, 1998), http://www.nytimes.com/1998/02/21/opinion/keeping-copyright-in-balance.html. 80. 108, 203(a)(2), 301(c), 302, 303, 304(c)(2). 81. Id. 82. Id. 83. See, e.g., Keeping Copyright in Balance, supra note 79.
70. 71. 72. 73. 74.
3/11/2014 5:08 PM
2014]
199
the extensive lobbying done by the Walt Disney Company.84 An editorial in the New York Times also came out against it, indicating that a balance needed to be maintained between rights holders and the public domain.85 Nevertheless, Congress unanimously passed the legislation, and President Clinton signed it into law.86 3. Stop Online Piracy Act & Protect Intellectual Property Act The balance between rights holders and end users went out the window when the Stop Online Piracy Act (SOPA)87 and the Protect Intellectual Property Act (PIPA)88 were introduced in the 112th Congress.89 SOPA in particular went well beyond what was normally being done for IP enforcement in the United States.90 One of the main provisions was directed at internet service providers (ISPs) and would have required them to comply with orders from the Department of Justice, other law enforcement agencies, or copyright holders to stop linking to websites that hosted infringing content.91 This section would also have extended to search engines and would have required them to stop linking to websites that were supposedly infringing on copyright holder rights as well.92 A separate provision under SOPA would have criminalized the streaming of copyrighted content for the first time with penalties of up to five years in prison.93 Certain revisions were made to the Bill while the House Judiciary Committee debated it, with a major change narrowing the scope of the legislation to foreign websites.94 The companion legislation for SOPA, PIPA, was introduced almost at
84. Lawrence Lessig, Copyrights First Amendment, 48 UCLA L. REV. 1057, 1065 (2001). 85. Keeping Copyright in Balance, supra note 79. 86. 17 U.S.C. 108, 203(a)(2), 301(c), 302, 303, 304(c)(2). 87. Stop Online Piracy Act, H.R. 3261, 112th Cong. (2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr3261ih/pdf/BILLS-112hr3261ih.pdf (last visited Feb. 20, 2013). 88. PROTECT IP Act of 2011, S. 968, 112th Cong. (2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s968is/pdf/BILLS-112s968is.pdf (last visited Feb. 20, 2013). 89. Bill Chappell, Q&A: Congress, SOPA, and a Fight over the Web, NATL PUB. RADIO (Jan. 18, 2012), http://www.npr.org/2012/01/18/145423947/q-a-sopa-congress-and-afight-over-the-web. 90. See, e.g., id. 91. H.R. 3261. 92. Id. 93. Id. 94. Id.
3/11/2014 5:08 PM
200
[Vol. 40:191
the same time in the United States Senate (Senate).95 It had similar provisions and, like the Bill in the House, substantial support when it was introduced.96 One of the main features of the Bill was the use of domain name system (DNS) filtering.97 This meant that after a copyright holder filed a complaint or the Department of Justice obtained an in rem court order, the site could be wiped from the Internet.98 The site would be accessible through its internet protocol address, but this would have made the site much harder to access.99 Soon after it was introduced in the Senate, Sen. Ron Wyden (D-OR) put a hold on the legislation because of significant privacy concerns.100 Like the sponsors in the House, the sponsors in the Senate tried to modify the Bill to appease certain interest groups and smooth its passage.101 However, unlike other bills that passed with little to no opposition at all, neither of these bills came to a vote, not even in committee.102 These two pieces of legislation were supposed to be the next step in IP enforcement in the United States.103 Lobbying groups such as the United States Chamber of Commerce, the Motion Picture Association of America (MPAA), and most major media conglomerates supported this legislation.104 Usually this would mean fairly smooth passage because such a broad coalition tends to indicate no major opposition.105 Unlike the 1976 Act or the DMCA, there was broad opposition to SOPA and PIPA that ranged from citizen advocacy groups106 to major online companies.107 The
95. Dan Mitchell, The Conniption Around IP and Copyright Law, CNN MONEY (May 20, 2011), http://tech.fortune.cnn.com/2011/05/20/the-conniption-around-ip-and-copyrightlaw/. 96. PROTECT IP Act of 2011, S. 968, 112th Cong. (2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s968is/pdf/BILLS-112s968is.pdf (last visited Feb. 20, 2013). 97. Id. 98. Id. 99. Id. 100. Press Release, Senior Senator from Or., Ron Wyden, Wyden Places Hold on Protect IP Act (May 26, 2011) (on file with author). 101. SOPA Protests Shut Down Web Sites, WASH. POST (Jan. 17, 2012), http://www.washingtonpost.com/politics/2012/01/17/gIQA4WYl6P_story_1.html. 102. Smith, supra note 4. 103. See SOPA Protests Shut Down Web Sites, supra note 101. 104. Kate Spence, A Broad Coalition Indeed!, MOTION PICTURE ASSN OF AM. (May 12, 2011, 3:19 PM), http://blog.mpaa.org/BlogOS/post/2011/05/12/A-Broad-CoalitionIndeed!.aspx. 105. See, e.g., Randy Alfred, Oct. 28, 1998: President Signs New Copyright Law, WIRED (Oct. 28, 2008), http://www.wired.com/science/discoveries/news/2008/10/dayintech_1028. 106. Gautham Nagesh, Tea Party Group Slams Online Copyright Bill, THE HILL (Sept.
3/11/2014 5:08 PM
2014]
201
protests led to support from abroad108 and comparisons to how autocratic regimes filter the internet or block it entirely.109 At the forefront of these protests was the fight to protect privacy and the First Amendment rights of free speech and free expression.110 The balance that had been maintained since the 1976 Act had completed its shift toward rights holders and left end users holding the bag. Even with the apparent defeat of these bills, there continues to be additional pieces of legislation that are trying to do similar things such as DNS filtering and internet protocol address blocking with a twist.111 This means that the coalition that opposed the previous bills must be vigilant in protecting citizens privacy rights and their right to free expression. The Internet has been an open platform for a long time, and the United States has been at the forefront in attempting to beat back efforts to stifle innovation or establish more control.112 Therefore, the balance between rights holders and end users at the legislative level must be restored. Rights holders need to be able to profit from their works, but ordinary citizens should still be allowed to use them in a fair way and eventually access them freely in the public domain. With this balance, the United States would serve as a model for other nations wishing to allow for open access but not so open as to cheat publishers and artists out of any profit at all. The way to get there is not as easy as it seems. While the legislative approach has been steadily moving in the direction of rights holders and needs to be counterbalanced, the judicial approach has been anything but consistent.113
26, 2011), http://thehill.com/blogs/hillicon-valley/technology/183999-overnight-tech-teaparty-group-slams-online-copyright-bill. 107. Steven Musil, Wikipedia to Join Web Blackout Protesting SOPA, CNET (Jan. 16, 2012), http://news.cnet.com/8301-1023_3-57359763-93/wikipedia-to-join-web-blackoutprotesting-sopa/. 108. See, e.g., Gregory Ferenstein, Why Theres No Mass Protest Over Government Surveillance, TECHCRUNCH (Mar. 14, 2013), http://techcrunch.com/2013/03/14/why-theresno-mass-protest-over-government-surveillance/. 109. John Palfrey, SOPA and Our 2010 Circumvention Study, PHILLIPS ACADEMY ANDOVER, http://jpalfrey.andover.edu/2011/12/22/sopa-and-our-2010-circumvention-study/ (last visited Feb. 23, 2013). 110. Musil, supra note 107. 111. Stephen Lendman, Destroying Online Privacy: Cyber Intelligence Sharing and Protection Act (CISPA) Is Back, GLOBALRESEARCH (Feb. 21, 2013), http://www.globalresearch.ca/destroying-online-privacy-cyber-intelligence-sharing-andprotection-act-cispa-is-back/5323758. 112. Eric Engleman, Internet Under Assault by Censoring UN, Regulator Says, BLOOMBERG (Feb. 5, 2013), http://www.bloomberg.com/news/2013-02-05/un-internetoversight-should-be-fought-by-u-s-lawmakers-say.html. 113. Compare Eldred v. Ashcroft, 537 U.S. 186 (2003) (upholding CTEAs constitutionality), with Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (stating im-
3/11/2014 5:08 PM
202
CRIMINAL AND CIVIL CONFINEMENT B. Judicial Approach to IP Enforcement
[Vol. 40:191
Article III courts are always hard at work interpreting the machinations of Congress and the President.114 The Supreme Court has tackled the Copyright Clause more than once115 and has also interpreted it in light of the onslaught of increasingly complex IP legislation.116 Every time the United States updated its IP laws, the case law that preceded it was largely swept aside, except for some core principles.117 In addition, the rulings of the Court were not always uniform, and changed depending on the Courts composition.118 There are a few cases in particular that might warm the hearts of those who value open-source,119 but others that will lead those same people to decry that the Court is in the pocket of big business.120 The only real thread drawn from the following cases is that the United States approach to IP law is fragmented. 1. Wheaton v. Peters The Supreme Courts first major encounter with IP, and the Copyright Clause in particular, was in Wheaton v. Peters in 1833.121 This case concerned the unauthorized publishing of Henry Wheatons Supreme Court reports that he compiled between 1816 and 1827.122 Wheaton asserted that his works were protected under the common law of copyright, but the Court rejected this argument.123 The Court explained that unpublished works are protected under the common law but published works require a
portance of originality for a copyrighted work). 114. See generally Caseload Statistics 2011, U.S. COURTS, http://www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics/FederalJudicialCaseloa dStatistics2011.aspx (last visited Feb. 14, 2014). 115. Joe Mullin, How a Supreme Court Ruling May Stop You from Reselling Just About Anything, ARS TECHNICA (Oct. 28, 2012), http://arstechnica.com/techpolicy/2012/10/a-supreme-court-clash-could-change-what-ownership-means/. 116. Compare 1790 Act (half a page), with 17 U.S.C. 101-1332 (over 200 pages). 117. See, e.g., Wheaton v. Peters, 33 U.S. 591 (1834) (sweeping aside common law of copyright for published works but maintaining it for unpublished works). 118. Compare id. (IP lawyer on the court), with Eldred, 537 U.S. at 186 (no IP expertise on the court). 119. See Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1356, 1371 (2013) (holding that a non-geographical reading of a provision of the Copyright Act is appropriate, which allows the resale of academic textbooks without consideration of the parties countries of residence). 120. See generally Eldred, 537 U.S. 186. 121. Wheaton, 33 U.S. at 593. 122. Id. at 593-94. 123. Id. at 595-96.
3/11/2014 5:08 PM
2014]
203
modicum of formality for protection.124 The most distinguishing factor the Court indicated was that rights holders would need to do something extra in order to have their works preserved in the future.125 Therefore, rights holders would need to follow the command of the copyright laws in place at the time,126 the Copyright Act of 1831.127 If rights holders chose not to go the extra mile, the work would become part of the public domain.128 2. In re Trade-Mark Cases The Supreme Court examined another field of IP law when it addressed the issue of where trademarks fall within the Constitution in In re TradeMark Cases.129 The Court consolidated three cases that dealt with fraudulent marks for whiskey and champagne.130 The parties were charged under a federal law prohibiting the counterfeiting of trademarks.131 The petitioners argued that the Copyright Clause of the Constitution was the basis for the law.132 However, the Court found that the power of Congress to deal with trademarks was limited to commerce with foreign nations or the Indian tribes.133 This narrow reading of the Commerce Clause134 prevented Congress from regulating trademarks within the United States for several decades.135 However, the Court did succeed in deciding where trademarks fit within the Constitution,136 thereby showing that the Founders wanted to protect all types of IP.137 3. Feist Publications, Inc. v. Rural Telephone Service Co. Over a century later, the Supreme Court wrestled with a seminal case under the 1976 Act.138 Feist Publications (Feist) wanted access to Rural Telephone Companys (Rural Telephone) phone directory in order to com-
Id. at 593-94. Id. at 660-61. See generally id. Act of Feb. 3, 1831, ch. 16, 1, 16, 4 Stat. 436, 439 (1831). See, e.g., Wheaton, 33 U.S. at 660-61. In re Trade-Mark Cases, 100 U.S. 82 (1879). Id. at 82-83. Id. at 83. See id. at 93; see also U.S. CONST. art. I, 8, cl. 8. Trade-Mark Cases, 100 U.S. at 96. See U.S. CONST. art. I, 8, cl. 3. Lanham Act, 15 U.S.C. 1051-1072, 1091-1096, 1111-1127 (1946) (modern law that replaced the Trademark Acts of 1881 and 1905). 136. Trade-Mark Cases, 100 U.S. at 93-97. 137. See U.S. CONST. art. I, 8, cl. 3, 8. 138. Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135.
3/11/2014 5:08 PM
204
[Vol. 40:191
pile a larger directory.139 Feist decided to copy some of Rural Telephones directory after they were denied access to it.140 Rural Telephone eventually sued for copyright infringement upon finding out that Feist copied the directory.141 In its opinion though, the Court decided that this was not infringement at all.142 After explaining that facts cannot be copyrighted, the Court further clarified that copyrightable materials must be original.143 As the Supreme Court articulated in its opinion, [t]he standard of originality is low, but it does exist.144 Rural Telephone did not meet this standard because its compiled data was not composed in a creative way.145 With this decision, the Supreme Court maintained the existing balance between rights holders and end users by refusing to either change the standard of originality or make facts copyrightable.146 4. Eldred v. Ashcroft The Supreme Court took a decidedly different approach to IP law when it was presented with a challenge to CTEAs constitutionality.147 CTEAs main goal was to extend copyright protections for new and existing copyrights by an additional twenty years.148 Several groups challenged the law as a violation of the Copyright Clause.149 The Supreme Court decided that the CTEA was constitutional and was a natural progression of copyright law from prior legislation.150 The Court reasoned that if the CTEA was unconstitutional, all previous copyright laws would be unconstitutional as well.151 While the petitioners challenging the law conceded that future copyrights were acceptable under the CTEA, they argued that current ones could not be squared into the language of limited times.152 However, the Court looked to patent law for guidance.153 In patent law, a field similar to copyright, Congress may properly increase the length of patent terms.154
139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154.
Id. at 342-43. Id. at 343. Id. at 344. Id. at 364. Id. at 361. Id. at 362. Id. at 362-63. See generally id. Eldred v. Ashcroft, 537 U.S. 186 (2003). Id. at 193. Id. Id. at 194. Id. at 194-96. Id. at 199-201 (quoting U.S. CONST. art. I, 8, cl. 3, 8). Id. at 201-03. Id.
3/11/2014 5:08 PM
2014]
205
Analogizing this to copyright law, the Court reasoned that if the same constitutional grant of authority could cover patents, it could cover copyrights as well.155 After reasoning that the CTEA was passed during a time of great technological and economic change, the Court said that the law was within Congresss scope of authority along with being a rational and proper use of its authority.156 This decision was very different from previous cases because it tilted the balance significantly away from end users.157 Future copyright holders should be entitled to a period where their work remains protected.158 At the same time, current copyright holders were given an extra twenty years before their works entered the public domain.159 In order to provide proper balance between the two groups, it is helpful to look abroad.160 IV. COMPARATIVE APPROACHES TO INTELLECTUAL PROPERTY LAW The current United States IP system is fragmented and inefficient.161 When problems arise and solutions cannot be found within the borders of the United States, it is always possible to look abroad for additional inspiration.162 The best places to begin looking are modern, industrialized nations that have dealt with IP issues for some significant length of time.163 Canada, Great Britain, and Japan all have methods that the United States can use to develop a more effective system of IP enforcement.164
Id. at 202-03. Id. at 206-08. Compare Eldred, 537 U.S. at 186 (holding CTEA constitutional even though it extends existing copyrights by another 20 years), with Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (holding no copyright infringement if there is no originality to the created work). 158. See, e.g., Eldred, 537 U.S. at 194. 159. See generally 17 U.S.C. 108, 203(a)(2), 301(c), 302, 303, 304(c)(2) (2006). 160. See, e.g., Copyright Modernization Act, S.C. 2012, c. 20 (Can.); see also Digital Economy Act, 2010, c. 24 (U.K.). 161. See generally Caseload Statistics 2011, supra note 114. 162. See, e.g., Chosaku Kenhou [Copyright Act], Law No. 48 of 1970, as last amended by Act No. 65 of 2010 (Japan). 163. Number of Global Patent Filings Recovers in 2010, UN Agency Reports, UNITED NATIONS NEWS CENTRE (Feb. 9, 2011), http://www.un.org/apps/news/story.asp?NewsID=37498&Cr=patents&Cr1 (explaining how patents in a number of industrialized nations have rebounded). 164. See, e.g., Law No. 48 of 1970, as last amended by Act No. 65 of 2010 (Japan); S.C. 2012, c. 20 (Can.); Digital Economy Act, 2010, c. 24 (U.K.).
155. 156. 157.
3/11/2014 5:08 PM
206
CRIMINAL AND CIVIL CONFINEMENT A. Canadas IP Law
[Vol. 40:191
The first place that the United States should look to for best practices abroad is Canada.165 Canadas main IP law, the Copyright Act of Canada of 1921, was amended in 1988 and 1997.166 Canada recently updated its IP laws when it passed the Copyright Modernization Act of 2012.167 Similar to other pieces of IP legislation, the Copyright Modernization Act sought to both expand the boundaries of fair use, or fair dealing as it is called in Canada, while also requiring internet service providers (ISPs) to forward any notice of possible infringement to their subscribers.168 The law also capped damages for non-commercial infringement at $5,000.169 Several of these provisions drew opposition from the International Intellectual Property Alliance (IIPA),170 which represents various media interests and is based in the United States.171 In particular, the IIPA felt that the statutory damages cap was too low and that ISPs were not given an incentive to deliver infringement letters to subscribers.172 Even though the IIPA has brought significant pressure against the Canadian government, no changes to the law are anticipated.173 The United States and Congress principally should look to Canada for certain aspects of future copyright legislation. In particular, the $5,000 statutory damage cap would better protect end users from burdensome fines for minor or inadvertent infringement.174 The fact that it drew opposition from the IIPA is an indication that rights holders are not happy,175 but at the same time, an ordinary citizen would likely be deterred from pirating IP if they had to pay up to $5,000 for each offense.176 When compared to the United States, the cap is considered much more reasonable because the DMCA allows for civil penalties ranging from $200 to $25,000 and criminal penalties from $500,000 to $1,000,000 along with five to ten years in
165. See, e.g., Michael Geist, Policy Laundering Lies Behind Ottawas Support for Trade Treaties: Geist, TORONTO STAR (Mar. 22, 2013), http://www.thestar.com/business/tech_news/2013/03/22/policy_laundering_lies_behind_otta was_support_for_trade_treaties_geist.html. 166. Copyright Act of Canada, R.S.C. 1985, c. L-42 (Can.). 167. Copyright Modernization Act, S.C. 2012, c. 20 (Can.). 168. See generally id. 169. Id. 170. Geist, supra note 165. 171. See generally INTL INTELL. PROP. ALLIANCE, http://www.iipa.com/ (last visited Mar. 16, 2013). 172. Geist, supra note 165. 173. Id. 174. See Copyright Modernization Act, S.C. 2012, c. 20 (Can.). 175. See Geist, supra note 165. 176. See S.C. 2012, c. 20 (Can.).
3/11/2014 5:08 PM
2014]
207
prison.177 In terms of penalties, the United States should learn that effective deterrence of minor offenders does not require massive fines. B. United Kingdoms IP Law The United Kingdom is another country in which IP issues have become important to the nations economic future.178 This is demonstrated in Parliaments passage of the Digital Economy Act of 2010.179 Some of the Acts methods were slightly controversial but regulations are not finalized yet.180 One of the more controversial portions would have allowed for the Secretary of State, with the approval of the other branches of government, to completely block access to a web site if it appears to contain a large amount of infringing works.181 This was viewed by many as overreaching and British citizens reacted accordingly.182 Based on the response the British government received from citizens183 and that it was passed with Tory support while the Labour Party was still in control, Parliament repealed the most offending aspects of the Act.184 The British public, not any specific interest group, brought this change through grassroots activism.185 This later move by American citizens to stop SOPA and PIPA parallels the movement by the British public to eliminate a controversial section in a piece of legislation.186 The other major parallel between the American and British responses is the engagement of the British press and how it continues to publish stories specifically about the Digital Economy Act.187 Continued engagement is necessary to make sure that similar legislation does not materialize and slip through the cracks.188 In addition to these similari-
17 U.S.C 1203-1204 (2006). See, e.g., Change to UK Patents Act Removes Infringement for Use of Clinical Trial Data, INTELLECTUAL PROP. WATCH (Feb. 27, 2013, 1:01 AM), http://www.ipwatch.org/2013/02/27/change-to-uk-patents-act-to-remove-infringement-for-use-of-clinicaltrial-data/. 179. See Digital Economy Act, 2010, c. 24 (U.K.). 180. See generally Digital Economy Act, THE GUARDIAN, http://www.guardian.co.uk/technology/digital-economy-act (last visited Mar. 16, 2013). 181. Digital Economy Act, 2010, c. 24, 17-18 (U.K.). 182. See Repeal Digital Economy Act, YOUR FREEDOM, http://yourfreedom.hmg.gov.uk/repealing-unnecessary-laws/repeal-digital-economy-act (last visited Mar. 16, 2013). 183. See id. 184. Government Drops Website Blocking, BRITISH BROAD. CORP. (Aug. 3, 2011), http://www.bbc.co.uk/news/technology-14372698. 185. Repeal Digital Economy Act, supra note 182. 186. See generally Mallory, supra note 1; Musil, supra note 107. 187. See generally THE GUARDIAN, supra note 180. 188. See generally Lendman, supra note 111.
177. 178.
3/11/2014 5:08 PM
208
[Vol. 40:191
ties, the new Act also provides for a judicial appeals process that allows for subscribers accused of infringing copyrights to be considered innocent until the process is exhausted.189 This new standard would likely prevent an innocent internet users reputation from being damaged if their wireless network was inadvertently left open.190 Once again, the United States should take what the British have done into account when crafting new legislation, along with listening to the American people. C. Japans IP Law One interesting and recent aspect of IP enforcement began in Japan only a few years ago.191 The Diet, or national legislature of Japan, passed a bill creating the Intellectual Property High Court (IP Court) (Chiteki Zaisan ) in June 2004.192 However, this Koutou Saibansho) ( court was a new addition to an already existing system.193 Starting in 1950, the Tokyo District Court began to set aside a specific division to deal with IP issues.194 This eventually expanded to five divisions within the court that now deal exclusively with IP.195 In addition, the Osaka District Court, located in Central Japan, also hosts two divisions that deal entirely with IP cases.196 These two cities represent the main centers for commerce and IP development in the country;197 hence the presence of IP courts to deal with cases in an efficient manner.198 The IP Court was partially created in response to the economic malaise in Japan and works to deal with patent cases in an efficient manner.199 It is considered separate from the Supreme Court of Japan (Saikou Saibansho) ( ) and has its own independent authority.200 The United States should utilize similar techniques as those in the Japanese system. Japans government recognized early on that IP would be im-
Digital Economy Act, 2010, c. 24 (U.K.). See generally id. See generally Press Release, World Intellectual Prop. Org., Strong Growth in Demand for Intellectual Property Rights in 2012 (Mar. 19, 2013) (on file with author). 192. INTELLECTUAL PROP. HIGH COURT, supra note 10. 193. Id. 194. Id. 195. Id. 196. Id. 197. See generally Staff Writers, For Tokyo, Osaka Voters, Election Revolved Around Economy, JAPAN TIMES (Dec. 17, 2012), http://www.japantimes.co.jp/news/2012/12/17/national/for-tokyo-osaka-voters-electionrevolved-around-economy/. 198. INTELLECTUAL PROP. HIGH COURT, supra note 10. 199. Id. 200. Id.
189. 190. 191.
3/11/2014 5:08 PM
2014]
209
portant for the future.201 The country doubled-down on such a prospect when the economic bubble burst and sent the country into a recession it has not yet fully recovered from.202 One thing that has changed between these two periods is the amount of patents that Japan now possesses.203 The economic power that Japan and Japanese industry have amassed since the postwar period has enabled them to possess a large number of patents.204 The IP Court allows Japanese and foreign companies to deal with Japan Patent Office (JPO) rulings in an efficient way and to solve other related patent disputes.205 By considering IP as a form of economic power and making sure that IP issues can be dealt with quickly,206 Japans approach is likely having a positive effect.207 The United States would do well to implement a similar system in order to more efficiently deal with patent and other IP cases. V. HOW A HYBRID APPROACH BENEFITS THE UNITED STATES Since the United States founding, the nations leaders have worked to adopt best practices when doing so would be advantageous to the national interest.208 Ideas that originated outside of North America include the adoption of common law for the American court system, a bicameral legislature, and a strong executive for passing and implementing legislation.209 The development of civil and political rights for women also did not begin in the United States.210 Therefore, history indicates that it is in the best inId. Id. UNITED NATIONS NEWS CENTRE, supra note 163. See generally JAPAN STATISTICAL YEARBOOK 2013, http://www.stat.go.jp/english/data/nenkan/index.htm (last visited Mar. 17, 2013). 205. INTELLECTUAL PROP. HIGH COURT, supra note 10. 206. Id. 207. See, e.g., IP Protection in Japan, IP AUSTL., http://www.ipaustralia.gov.au/understanding-intellectual-property/ip-for-business/doingbusiness-overseas/ip-protection-in-japan/ (last visited Mar. 17, 2013) (explaining the benefits of doing IP work in Japan to Australian citizens). 208. See Kay Lazar, Doctors and Patients Could Decide who Gets Medical Marijuana Under Draft Mass. Rules, BOSTON.COM (Mar. 29, 2013), http://www.boston.com/whitecoatnotes/2013/03/29/doctors-and-patients-could-decide-whogets-medical-marijuana-under-draft-mass-rules/BGIADLbsh9BA45LUGFqB3M/story.html (explaining how the Massachusetts Department of Public Health took best practices from 17 other states in developing the states medical marijuana laws). Compare 1790 Act, with Stat. of Ann., 1710, c. 19 (Eng.). 209. Compare U.S. CONST. art. I, with The Bill of Rights, 1689, 1 W. & M., c. 2 (Eng.). 210. See ELLEN CAROL DUBOIS, WOMAN SUFFRAGE AND WOMENS RIGHTS 28 n.47 (NYU Press 1998); see also P. Orman Ray, Womens Suffrage in Foreign Countries, 12 AM. POL. SCI. REV. 469, 469 (1918).
201. 202. 203. 204.
3/11/2014 5:08 PM
210
[Vol. 40:191
terest of the United States to adopt reforms and practices embraced in other countries when it is advantageous to do so.211 Following this course of action would provide rights holders with a fairer and more efficient system through the adoption of a unified dispute resolution system and guaranteed protection for new IP.212 On the other hand, end users would have the freedom to use their devices without fear of running afoul of infringement laws.213 This begins with implementing a better system of dealing with IP enforcement at the federal level and making sure that future legislation balances the interests of rights holders and end users. A. Integration of Best Practices The United States is in a position to select from and adapt effective IP enforcement practices already established and tested in other countries.214 One way to do this would be to create a special court system that can deal with IP cases. At the moment, the United States Court of Appeals for the Federal Circuit (Federal Circuit) is in charge of dealing with patent cases on appeal from federal district courts.215 The quality of work coming from the circuit is admirable, but the caseload is already heavy,216 and the Federal Circuit deals with a myriad of other types of cases in addition to patent cases.217 In terms of setting up a court system to deal with IP cases, the United States has three viable options: Article III courts,218 Article I courts,219 or a hybrid of the two.220 1. Option One: The Article III Courts The first option that Congress might consider is authorizing the creation of a new Article III court with limited jurisdiction.221 The courts jurisdiction would be limited to IP.222 The question then becomes whether it is
See generally Lazar, supra note 208. See generally Kravets, supra note 7. See generally id. See generally U.S. CONST. art. I, 8, cl. 3, 18. COURT JURISDICTION UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT, supra note 12. 216. Caseload Statistics 2011, supra note 114. 217. COURT JURISDICTION UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT, supra note 12 (explaining that in addition to patent cases, it deals with appeals from various Article I tribunals like the U.S. Court for Federal Claims and statutory sections such as Section 211 of the Economic Stabilization Act of 1970). 218. See id. art. III, 1. 219. See U.S. CONST. art. I, 1. 220. See id. 221. See id. 222. See generally What is Intellectual Property?, WIPO, http://www.wipo.int/about211. 212. 213. 214. 215.
3/11/2014 5:08 PM
2014]
211
necessary to create a parallel system of courts or only have a single court to deal with all of these cases. Due to the increasing IP caseload in the federal court system,223 a two- or three-tiered system would be better at dealing with the needs of rights holders.224 Once again, this presents two options, either an approach that allows for a final appeal to the Supreme Court with IP district and appellate courts, or creating a high court that deals only with IP cases and creating an intermediate appellate level below it.225 The latter option would retain the ability of federal district courts to review IP cases, but vest final authority in a high court as the ultimate arbiter.226 One problem with creating a separate high court for IP cases would be the loss of existing precedent established by the Supreme Court in IP case law.227 However, this could be remedied by having the IP High Court adopt existing Supreme Court precedent when it begins to issue opinions.228 Having more than one high court in the judicial hierarchy might seem strange, but other countries, including ones with federal systems like the United States, have done so without negative consequences.229 Following this latter option would also prevent extensive duplication of courts at the federal district level, since IP courts would likely need to mirror existing districts if they were created.230 This would maintain a certain level of judicial independence for the existing Article III courts and provide comfort for businesses and individual rights holders that might have a familiarity with the existing system.231 If need be, a party that wished to appeal an adverse decision at the district court level could have the option of choosing either the specialty IP courts or the normal Article III courts.232 The IP courts expertise would likely convince most rights holders to bring their
ip/en/ (last visited Mar. 15, 2013). 223. See generally Caseload Statistics 2011, supra note 114. 224. See generally INTELLECTUAL PROP. HIGH COURT, supra note 10. 225. See, e.g., id. 226. See U.S. CONST. art. III, 2. 227. See generally U.S. CONST. art. III. 228. See id. 2. 229. See, e.g., The Position of the Federal Court of Justice in the German Court System, DER BUNDESGERICHTSHOF, http://www.bundesgerichtshof.de/EN/FCoJ/TaskOrganisation/PositionFCoJ/positionFCoJ_n ode.html (last visited Mar. 15, 2013). 230. See generally District Courts, U.S. COURTS, http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/DistrictCourts.aspx (last visited Mar. 28, 2013). 231. See, e.g., How the Federal Courts Work Civil Cases, U.S. COURTS, http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/HowCourtsWork/C ivilCases.aspx (last visited Mar. 28, 2013). 232. See generally District Courts, supra note 230.
3/11/2014 5:08 PM
212
[Vol. 40:191
cases before those courts over time.233 The former option, allowing for a final review of an IP court decision before the Supreme Court, is the other popular approach.234 The Supreme Court would retain jurisdiction over IP cases and their precedent would remain the law of the land.235 At the same time, a parallel system of IP district and circuit courts would deal with IP cases.236 However, unlike a mirroring of the entire federal court system, IP courts could be placed in areas where IP cases normally occur.237 Since Members of Congress would likely be territorial as to the placement of new courthouses,238 one district court might appropriately be placed in every existing federal circuit.239 In the current climate of budget cuts and austerity,240 the IP district courts could even be placed within existing federal courthouses to keep costs low.241 As for the IP circuit courts, geography and volume of IP cases should be the main factors when choosing locations.242 This would likely entail placing courts in New York, Chicago, Denver, Los Angeles or San Francisco, and one in Dallas, Houston, or Austin.243 All of these cities have existing federal district courts and most have federal circuit courts as well.244 This would limit the existing number of venues, but still provide a level of efficiency and convenience for the vast majority of rights holders.245 If Congress chose to initiate either of these systems, the creation of these new courts would not be unprecedented at the federal level.246 The United States currently has an Article III court that deals exclusively with international trade.247 Prior to this, the United States created the Court of Customs
See generally INTELLECTUAL PROP. HIGH COURT, supra note 10. See generally U.S. CONST. art. III, 2. See id.; see also Marbury v. Madison, 5 U.S. 137, 173-74 (1803). See generally INTELLECTUAL PROP. HIGH COURT, supra note 10. Caseload Statistics 2011, supra note 114. See generally Court Finder, U.S. COURTS, http://www.uscourts.gov/Court_Locator.aspx (last visited Mar. 15, 2013). 239. Id. 240. See, e.g., Federal Judiciary Braces for Broad Impact of Budget Sequestration, U.S. COURTS, (Mar. 12, 2013), http://news.uscourts.gov/federal-judiciary-braces-broadimpact-budget-sequestration. 241. See, e.g., id. 242. See generally Caseload Statistics 2011, supra note 114. 243. See generally id. 244. Court Finder, supra note 238. 245. See generally Caseload Statistics 2011, supra note 114. 246. See Federal Courts Improvement Act of 1982, 28 U.S.C. 1 (2012). See generally UNITED STATES COURT OF INTERNATIONAL TRADE, http://www.cit.uscourts.gov/ (last visited Mar. 25, 2013). 247. Payne-Aldrich Tariff Act, ch. 6, 29, 36 Stat. 11, 105-06 (1909).
233. 234. 235. 236. 237. 238.
3/11/2014 5:08 PM
2014]
213
Appeals in 1909248 under the auspices of the Payne-Aldrich Tariff Act.249 This courts name was changed to the Court of Customs and Patent Appeals in 1929 after it received jurisdiction over appeals from the United States Patent Office.250 Even though the Supreme Court declared this court to be an Article I court in 1929,251 Congress eventually made it an Article III court in 1956.252 The Court of Customs and Patent Appeals was eventually abolished in 1982.253 Even so, the United States has precedent for the creation of a court dealing with IP issues.254 It might prove difficult to establish Article III courts,255 so Article I courts are another option. 2. Option Two: The Article I Courts The next option that Congress should consider would be the creation of an Article I court.256 Article I courts, also called legislative courts because they are created by Congress, have a long history in the United States.257 While they originally were created for territories that had not entered the Union yet,258 the nature of these courts changed over time.259 Today, a lot of these courts exist inside administrative agencies or the military.260 One in particular that applies to IP is the Trademark Trial and Appeal Board (TTAB).261 The TTAB resides within the United States Patent and Trademark Office (USPTO) and deals with a number of trademark-related cases.262 This type of arrangement could be expanded through the establish-
UNITED STATES COURT OF INTERNATIONAL TRADE, supra note 246. Id. Id. See generally Ex parte Bakelite Corp., 279 U.S. 438 (1929). UNITED STATES COURT OF INTERNATIONAL TRADE, supra note 246. Federal Courts Improvement Act of 1982, 28 U.S.C. 1 (2012). See UNITED STATES COURT OF INTERNATIONAL TRADE, supra note 246; see also 28 U.S.C. 1. 255. Compare U.S. CONST. art. III, 1 ([I]n such inferior Courts as the Congress may from time to time ordain and establish.), with Editorial, A Model to End Washington Gridlock: Mexico, CHRISTIAN SCI. MONITOR (Mar. 24, 2013) http://www.csmonitor.com/Commentary/the-monitors-view/2013/0324/A-model-to-endWashington-gridlock-Mexico. 256. See generally U.S. CONST. art. III, 1. 257. Id. 258. See generally Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511 (1828). 259. See id. at 512-13. 260. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 63-64 (1982). 261. TRADEMARK TRIAL AND APPEAL BOARD, http://www.uspto.gov/trademarks/process/appeal/ (last visited Mar. 16, 2013). 262. Id.
248. 249. 250. 251. 252. 253. 254.
3/11/2014 5:08 PM
214
[Vol. 40:191
ment of a Patent Trial and Appeal Board (PTAB) out of the USPTO and a Copyright Trial and Appeal Board (CTAB) out of the United States Copyright Office (USCO).263 In order to increase efficiency, it would be best if they were combined into an Intellectual Property Trial and Appeal Board (IPTAB). This court would have jurisdiction over all IP cases in the United States and serve to deal with disputes that arise over rights issues.264 All IP would fall under IPTABs jurisdiction as an Article I court because the government keeps records and decides the rightful owners of patents, copyrights, and trademarks.265 This would likely require the merging of the USPTO and the USCO, which could be reborn as the United States Intellectual Property Office (USIPO).266 With the USIPO in place and IPTAB becoming the place for appeals of decisions related to patents, trademarks, and copyrights, the next focus would need to be on further appeals.267 Article I courts do not have final authority on most matters, and therefore usually require some sort of review process before a federal court.268 At the moment, TTAB allows for appeals to either a federal district court or the Federal Circuit.269 In order for IPTAB to pass constitutional muster, it would likely need to have a similar method of appeal.270 Because of the expertise of the Federal Circuit with patent matters,271 it would be advisable for IPTAB to also allow appeals to the Federal Circuit. By creating IPTAB and making sure that petitioners can appeal to the Federal Circuit or another Article III court, the Article I court option would increase efficiency and provide rights holders with appropriate due process in case of a denial from the new USIPO.272 3. Option Three: The Hybrid Approach The final option available for Congress to implement positive aspects of foreign IP legal systems is the implementation of a hybrid approach involv263. See generally U.S. COPYRIGHT OFFICE, http://www.copyright.gov/ (last visited Mar. 16, 2013); UNITED STATES PATENT AND TRADEMARK OFFICE, http://www.uspto.gov/ (last visited Mar. 16, 2013). 264. See U.S. CONST. art. III, 1-2. 265. See generally N. Pipeline Constr. Co., 458 U.S. at 50. 266. See sources cited supra note 263. 267. See generally U.S. CONST. art. III, 2. 268. See generally N. Pipeline Constr. Co., 458 U.S. at 50. 269. TRADEMARK TRIAL AND APPEAL BOARD, supra note 261. 270. See generally id. 271. COURT JURISDICTION UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT, supra note 12. 272. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (determining the appropriate level of due process required through a three-part test). See generally U.S. CONST. amend. V (Due Process Clause).
3/11/2014 5:08 PM
2014]
215
ing both Article I and Article III courts. Unlike the previous two options, new structures would need to be created within both administrative agencies and the judiciary.273 This would likely involve housing the USIPO and IPTAB within the Department of Commerce in order to create an effective Article I mechanism.274 Instead of allowing for appeals of IPTAB decisions to the Federal Circuit, the appeal would be made to a United States Court of Intellectual Property (USCIP).275 This Article III court would be on par with the United States Court of International Trade (USCIT), which has subject matter jurisdiction over certain trade issues that arise from selected federal agencies.276 It would act as the court of last resort for IP cases coming out of the USIPO.277 Therefore, rights holders would have the option of going through Article I mechanisms and still have a right to appeal to the USCIP.278 End users could still bring cases against rights holders in federal court and retain the ability to appeal to the Supreme Court or, if the law changed,279 to the USCIP as well. This would likely lower the amount of cases clogging the federal courts significantly.280 Utilizing one of these options would serve to streamline the enforcement and adjudication of IP law in the United States and provide more expeditious justice for both end users and rights holders. B. Balancing the Interests of Rights Holders and End Users After setting up a system that would run more efficiently and deal solely with IP cases, the enforcement and legislative side of the equation would have to change as well.281 The current legal regime for IP law is a thicket of complex laws that has grown increasingly convoluted over time.282 At the same time as the laws have grown more complex, the balance between rights holders and end users has disappeared.283 The United States must fix
273. 274.
See generally U.S. CONST. art. III, 1. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 63-64
(1982). 275. See generally UNITED STATES COURT OF INTERNATIONAL TRADE, supra note 246. 276. Id. 277. See generally U.S. CONST. art. III, 2. 278. See, e.g., TRADEMARK TRIAL AND APPEAL BOARD, supra note 261. 279. See generally U.S. CONST. art. III, 2. 280. Caseload Statistics 2011, supra note 114. 281. See, e.g., 17 U.S.C. 501-513 (1976) (enforcement provisions under the 1976 Act). 282. Compare 1790 Act (half a page), with 17 U.S.C. 101-1332 (over 200 pages). 283. Compare 17 U.S.C. 302 (1976) (setting a temporal limit on copyrights after January 1, 1978 to life of the author plus 50 years after the authors death), with Eldred v. Ashcroft, 537 U.S. 186, 206-08 (2003) (upholding the CTEA that extended the temporal limit to life of the author plus 70 years after the authors death).
3/11/2014 5:08 PM
216
[Vol. 40:191
this balance in order to provide end users with more protection and also allow for the public to enjoy older works in the public domain. There are certain areas that Congress or the courts should focus on in order to balance the system. In particular, the focus should be: reforming the penalties used to enforce the system; allowing for older, protected materials to enter the public domain earlier; and strengthening the rules promulgated by the Librarian of Congress (Librarian) to allow for additional exemptions under the DMCA.284 1. IP Law Penalty Reform One of the main ways in which Congress should better balance the relationship between rights holders and end users is to reform the penalties imposed for IP law violations.285 Over the past decade or so, news stories have been written about how ordinary Americans have been hit with exorbitant penalties for violating IP laws.286 This coincided with the rise of peer-to-peer networks that have both legitimate and illegitimate uses.287 The Recording Industry Association of America (RIAA) in particular takes a very aggressive stance in dealing with supposed violators of their members IP.288 However, some of the tactics used by the RIAA are extremely harsh and border on harassment.289 In addition, cases brought against individual violators greatly overvalue the IP that the rights holders are seeking to protect.290 An approach that would put the RIAA and similar groups in a better light would be for Congress to establish a two-tier penalty system.291 The
See generally 17 U.S.C. 1201(a)(1). See generally 17 U.S.C. 1203-1204. 17 U.S.C. 1201-1205 (laying out penalties for violations of the statute); see, e.g., Awkward Download Laws Make Music-Sharing Case a Travesty, Bos. Globe, Dec. 14, 2009, at A18 (jury verdict awarded $675,000 to the recording industry against an individual who shared 30 songs). 287. See, e.g., George H. Pike, Copyright Alert System to Warn, then Punish, Peer-toPeer File Sharing, INFO. TODAY, INC. (Mar. 14, 2013), http://newsbreaks.infotoday.com/NewsBreaks/Copyright-Alert-System-to-Warn-thenPunish-PeertoPeer-File-Sharing-88397.asp. 288. See, e.g., Kravets, supra note 7. 289. See, e.g., Eliot Van Buskirk, Reddit Co-Founder Goes Off on RIAA at SXSW, Advocates Internet Access, BILLBOARD (Mar. 8, 2013), http://www.billboard.com/biz/articles/news/digital-and-mobile/1551239/reddit-co-foundergoes-off-on-riaa-at-sxsw-advocates. 290. See, e.g., Brad Hill, Editorial, RIAA Takedown Requests and Ad Complaints are Missing Opportunity, ENGADGET (Feb. 18, 2013), http://www.engadget.com/2013/02/18/riaa-takedown-requests-and-ad-complaints-aremissing-an-opportunity/. 291. But see 17 U.S.C. 1203-1204.
284. 285. 286.
3/11/2014 5:08 PM
2014]
217
lower tier would focus on violators that did not intend to violate the law or only pirated a small amount of IP.292 The upper tier would focus on sites that host large amounts of pirated content or violators that have pirated significant amounts of IP intentionally.293 The penalties for the lower tier would be fines below $10,000 and would scale depending on how much was pirated.294 On the other hand, the upper tier would have fines up to $500,000 for egregious violators and upwards of one million dollars for site operators.295 The upper tier would also include imprisonment of up to five years.296 These numbers for the upper tier are similar to the ones in the DMCA, and therefore would be easy to implement.297 Cooperation with law enforcement should be a factor considered during sentencing and lead to probation or house arrest when appropriate.298 Also, in order to encourage settlement for the lower tier, there should be mandatory pre-trial settlement offers to boost efficiency within the federal courts.299 An alternative approach that would complement the two-tier penalty system would be encouraging rights holders to embrace the new digital environment we live in.300 The explosion in popularity of mobile devices and broadband Internet access has led to advances in digital delivery systems.301 The market has also matured and allowed for digital rights management (DRM) to fall by the wayside as consumers have been given more freedom.302 The rise of the iTunes store for Apple devices,303 the increasingly large Kindle library for Amazons e-reader,304 and the large and proBut see id. But see id. But see id. But see id. See id. See generally id. But see id. But see id. See, e.g., Sir Martin Sorrell, Business Must Embrace This Digital Revolution, THE TELEGRAPH (UK) (Mar. 16, 2013), http://www.telegraph.co.uk/finance/comment/9934918/Business-must-embrace-this-digitalrevolution.html. 301. See, e.g., Senate Approves Measure That Supports Broadband Access for Rural Areas, ALEXANDRIA ECHO PRESS (Mar. 25, 2013), http://www.echopress.com/event/article/id/103083/group/News/. 302. See, e.g., Chris Kohler, SimCity Blackout is Just One More DRM Disaster, WIRED (Mar. 8, 2013), http://www.wired.com/gamelife/2013/03/simcity-outage/. 303. E.g., Bryan M. Wolfe, Apples iTunes Store Accounts for 60 Percent of Worldwide Digital Music Revenues, APPADVICE (Feb. 27, 2013), http://appadvice.com/appnn/2013/02/apples-itunes-store-accounts-for-60-percent-ofworldwide-digital-music-revenues. 304. E.g., Brad Tuttle, Amazon Prime: Bigger, More Powerful, More Profitable Than
292. 293. 294. 295. 296. 297. 298. 299. 300.
3/11/2014 5:08 PM
218
[Vol. 40:191
gressively more user-driven Steam service run by Valve Software for computer games are just a few examples.305 Even older IP has been given new life, at least in the realm of computer games, with the creation and success of Good Old Games.306 The future of IP is moving to a digital realm that offers rights holders the opportunity to not only have control over their IP, but also have the ability to make money and provide end users with significant value.307 Current IP rights holders should fully embrace the digital revolution and try to place their IP onto as many sites and services as possible before existing copyrights expire.308 2. Accelerate the Entrance of Older IP into the Public Domain Another way in which Congress can better balance the relationship between the two groups is to reform copyright laws to allow for older IP to enter the public domain faster.309 Currently, the controlling law is the CTEA.310 The extensions given to existing IP called for an additional twenty years of protection.311 Companies have an interest in keeping iconic IP out of the public domain because it still has value in the present day.312 However, the Copyright Clause was not intended to allow Congress to pass laws that indefinitely extend further copyright protections.313 In order to prevent rights holders from maintaining copyrights far beyond their intended shelf-life, Congress must either amend or rescind the CTEA.314 According to the laws sponsors, one of the reasons for passing it was to make sure that the United States kept up with the European Union (EU), which directed their member-states to establish a baseline copyright length.315 While it is important that the United States remains competitive
Anyone Imagined, TIME (Mar. 18, 2013), http://business.time.com/2013/03/18/amazonprime-bigger-more-powerful-more-profitable-than-anyone-imagined/. 305. E.g., WELCOME TO STEAM, http://store.steampowered.com/ (last visited Mar. 14, 2013). 306. See GOOD OLD GAMES, http://www.gog.com/ (last visited Mar. 14, 2013). 307. See, e.g., Sorrell, supra note 300. 308. See, e.g., id. 309. See, e.g., Jani Ihalainen, Sherlock Holmes is in the Public Domain, At Least Partially, IP IUSTITIA (Jan. 5, 2014, 11:22 PM), http://www.ipiustitia.com/2014/01/sherlockholmes-is-in-public-domain-at.html. But see 17 U.S.C. 108, 203(a)(2), 301(c), 302, 303, 304(c)(2). 310. Id. 311. Id. 312. See, e.g., Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013). 313. See Eldred v. Ashcroft, 537 U.S. 186, 199-201 (2003); see also U.S. CONST. art. I, 8, cl. 8. 314. See U.S. CONST. art. I, 8. 315. Eldred, 537 U.S. at 198; see S. REP. NO. 104-315, at 1 (1996).
3/11/2014 5:08 PM
2014]
219
against other nations,316 there is no compelling reason for the CTEA beyond keeping up with the EU.317 Other major industrialized nations, while signing onto WIPO treaties, had not gone farther in enforcing IP laws.318 Instead of further extending copyright protections, the United States should modify the CTEA so that it only applies to new IP.319 If this is not done, the CTEA should be rescinded and the 1976 Act should hold sway.320 In addition to changing the law, the Supreme Court would have to overturn their decision in Eldred.321 It would not be difficult to find the proper reasoning for doing so because the case already has two dissents.322 However, it would require the Supreme Court to have an existing case or controversy in order to render the appropriate verdict.323 Combining the dissents of Justices Stevens and Breyer in Eldred would create a cohesive argument that shows how Congress in passing CTEA went beyond the boundaries of the Copyright Clause.324 Congress should be able to write and pass legislation related to future patents and copyrights, as per the Copyright Clause,325 but it should not be able to continually extend protections ad infinitum.326 The Copyright Clause should not be twisted in order for corporations to continually have a monopoly over the use of certain images, musical scores, or other related works. The delay of IP entering the public domain is even worse when dealing with works that combine several different elements that can all be separately copyrighted, such as movies.327 One other way in which the public domain would benefit from IP law reform would be changing the way that movies and video games in particular operate in terms of copyright.328 At the moment, the movie Its a Wonderful Life is in the public domain.329
316. See, e.g., The Economy: Cheer Up, THE ECONOMIST (Mar. 16, 2013), http://www.economist.com/news/special-report/21573229-political-gridlock-may-be-badamericas-economy-says-edward-mcbride. 317. See, e.g., Civil Society Statement No Copyright in the EU-US Trade Agreement!, INFOJUSTICE (Mar. 18, 2013), http://infojustice.org/archives/29025. But see S. REP. NO. 104315, at 1. 318. See generally WIPO Treaties General Information, supra note 56. 319. But see 17 U.S.C. 108, 203(a)(2), 301(c), 302, 303, 304(c)(2). 320. See generally 17 U.S.C. 101-1332. 321. See Eldred v. Ashcroft, 537 U.S. 186, 221-22 (2003). 322. Id. at 222, 242-43 (Stevens, J., dissenting) (Breyer, J., dissenting). 323. U.S. CONST. art. III, 2. 324. Eldred, 537 U.S. at 242-43 (Stevens, J., dissenting) (Breyer, J., dissenting). 325. U.S. CONST. art. I, 8, cl. 8. 326. Eldred, 537 U.S. at 222 (Stevens, J., dissenting). 327. See generally 17 U.S.C. 101-1332. 328. See generally id. 329. Todd VanDerWerff, Its a Wonderful Life Shows the Unending Cost of Being
3/11/2014 5:08 PM
220
[Vol. 40:191
This has actually been the case since 1975 when the rights holder failed to renew its copyright.330 However, while the movie is technically in the public domain, this only applies to the film images, not to the short story on which it was based.331 In addition, the musical score is also copyrighted separately.332 This prevents the movie from fully entering the public domain because the script and musical score cannot be used without permission from the original rights holders.333 While it would be unfair for the rights holder of a story to be combined with a movie, it is equally unfair for end users to be unable to enjoy a movie, such as Its a Wonderful Life, because each element of a work can be copyrighted separately.334 Therefore, it would be prudent for Congress to allow for joint copyrights that combine all of the elements of a movie, play, or video game into a single copyright.335 This would protect all of the interested parties in a complete work, while still allowing for the public to eventually have complete access to it when the single copyright period is over.336 Stories adapted for movies, plays, and video games would still retain their own separate copyright, but the story within the complete work would enter the public domain once the copyright period expires.337 This would ensure that copyright holders receive just compensation for their hard work, while eventually allowing for end users to appreciate the original work and interpret it in their own way. 3. Modify Exemption Rules Promulgated by the Librarian of Congress The final way in which Congress should ensure that the balance between rights holders and end users is restored would be to modify how exemption rules are treated by the Librarian.338 These exemption rules first appeared in the DMCA.339 The Librarian is given the power to promulgate rules suggested by the public and vetted through comments by the Registrar of
Good, ONION AVCLUB (Dec. 21, 2012), http://www.avclub.com/articles/its-a-wonderfullife-shows-the-unending-cost-of-be,90139/. 330. Id. 331. Bob Thomas, Christmas Classic had an Unpromising Start, July 3, 1997, http://www.reelclassics.com/Movies/Wonlife/wonlife-article.htm. 332. Id. 333. See generally id. 334. Id. 335. But see 17 U.S.C. 101-122. 336. 17 U.S.C. 108, 203(a)(2), 301(c), 302, 303, 304(c)(2). 337. But see 17 U.S.C. 101-122, 302. 338. See 17 U.S.C. 1201(a)(1). 339. Myron Hecht, Reconciling Software Technology and Anti-Circumvention Provisions in the Digital Millenium [sic] Copyright Act, 8 UCLA L.J. & TECH. 1, 12 (2004).
3/11/2014 5:08 PM
2014]
221
Copyrights (Registrar).340 In a sense, the Registrar and the Librarian work in tandem as a quasi-administrative agency; they hold hearings, leave open the proceedings to public comments, and issue final rules.341 The only issue is that these rules only last for three years.342 The rules are only promulgated if they have a substantial adverse effect on the ability to use copyrighted works in a non-infringing manner.343 These stringent standards have led to only twelve exemptions under the DMCA since 2000.344 This must be changed, especially since there is growing frustration with the process.345 While the procedure is generally acceptable, the standard should be changed in order to allow for additional, legitimate exemptions.346 Changing the substantial standard to a reasonable one might be possible, with additional safeguards such as a limited right of protest that can be sent to the Registrar to verify that it is a proper exemption.347 In addition, eliminating the three year exemption limit would go a long way towards protecting end users.348 At the same time, this still allows rights holders to eliminate cumbersome exemptions that might harm their interests.349 In the end, it is imperative to find a balance between rights holders and end users, and following through on some of these suggestions would be an excellent start. VI. CONCLUSION The IP issue has been present in one form or another since the beginning of the United States of America.350 Throughout its history, the battle between rights holders and end users has been waged in both the courts and in Congress.351 However, with the rise of the Digital Age, the balance has slowly shifted towards rights holders. The reforms outlined in the previous sections are a starting point for a more balanced approach to IP enforce17 U.S.C. 1201(a)(1). Id. Id. Id. See generally U.S. COPYRIGHT OFFICE, supra note 263. See, e.g., Donald Robertson, Copyright Office Fails to Protect Users From DMCA, FREE SOFTWARE FOUND. (Oct. 26, 2012), http://www.fsf.org/blogs/licensing/copyright-office-fails-to-protect-users-from-dmca. 346. See, e.g., Greenfield, supra note 74. 347. See generally 17 U.S.C. 1201(a)(1). 348. See generally id. 349. See, e.g., Greenfield, supra note 74. 350. See, e.g., U.S. CONST. art. I, 8, cl. 8. 351. Compare Eldred v. Ashcroft, 537 U.S. 186 (2003) (decision favoring rights holders), with Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013) (decision favoring end users).
340. 341. 342. 343. 344. 345.
3/11/2014 5:08 PM
222
[Vol. 40:191
ment and reform in the United States. The vast majority of end users will not pirate copyrighted material as long as they receive value and open access to what they purchase. It is also true that a majority of citizens would support actions to make sure that the most egregious violators are properly punished for their transgressions. By utilizing best practices from abroad, the United States must transform its IP structure into a more efficient and equal system. Only by doing so can the United States continue to be a great country in which to do business and establish copyrights, trademarks, and patents, while supporting a free and open society that encourages the use of the public domain.

Don't Copy That Floppy: The IP Enforcement Dilemma in The United States

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Don't Copy That Floppy: The IP Enforcement Dilemma in The United States

Hochgeladen von

Copyright:

Verfügbare Formate

NEWMAN FINAL (DO NOT DELETE)

(9) NEWMAN.DOCX (DO NOT DELETE)

CRIMINAL AND CIVIL CONFINEMENT

(9) NEWMAN.DOCX (DO NOT DELETE)