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VOLUME TWENTY-TWO, NUMBER 1 -- 2001TABLE OF CONTENTS ARTICLES Advances in multimedia technology raised concerns that new fora for distributing copyrighted works -- including webcasting, downloading and digital lockers -- would diminish the copyright protection afforded to copyright owners. However, recent legislation protects copyright owners by defining these services as public performances, meaning that digital entertainment distributors must pay copyright owners for the public performances of their works. This legislative solution creates incentives for sound recording companies to continue investing in artists by assuring that new technologies and distribution avenues will provide greater exposure for their artists without negating the value of the copyrights they hold. As a result of the preliminary injunction order issued against Napster, Inc. in March 2001, post-Napster peer-to-peer file sharing services are gaining much popularity. Their liabilities, if any, for copyright infringement, i.e., contributory liability and vicarious liability, will be analyzed under the rules set forth in the Napster cases. As the existence of these services may become an issue in Japan in the very near future, their liabilities will also be analyzed under current Japanese law. However, even if they or their users are to be held liable, legal enforcement of copyright may not be feasible in light of the nature of peer-to-peer networks. Technological advancement in the digital age will force content providers to rely more on technology to enhance their ability to secure their copyrights. Those problems that are spawned by digital technology must be solved by digital technology. NOTES & COMMENTS CAN’T GET NO SATISFACTION: HOW ABKCO V. LAVERE BOWED TO PRESSURE FROM THE MUSIC INDUSTRY In copyright law, the moment of publication is crucial. It determines the level of protection bestowed upon an artistic creation, which in turn determines the value of the copyright itself. Since the contentious 1995 Ninth Circuit decision in La Cienega Music Co. v. ZZ Top, the question of whether phonograph records distributed before 1978 are publications of the underlying work has remained uncertain. In June 2000, the Ninth Circuit handed down a decision in ABKCO Music, Inc. v. LaVere that resolved a split between the Ninth and the Second Circuits that had caused a great deal of controversy within the music recording industry. Congress ultimately responded to this circuit split by amending the Copyright Act of 1909 to declare that distribution of phonograph records before 1978 did not constitute publication of the underlying work. The ABKCO decision agreed, thereby overturning La Cienega. In examining the legislative and jurisprudential history of the publication issue, this Note proposes that the ABKCO decision and the Copyright Act amendment are bad law, and suggests that they were influenced by music industry pressure. The Note further argues that La Cienega, the decision that ABKCO overturned, was good law and should be restored to its former position as controlling law in the Ninth Circuit. In the area of cyberlaw known as “cybergriping,” intellectual property rights collide with freedom of speech. Cybergriping occurs when a consumer creates a web page on the Internet to voice an opinion (usually a negative one) about a particular product, company, or service. The recent trend involves the targeted company retaliating against the owner of the website or domain name by asserting its trademark rights. However, while mark owners have the right to vigorously protect their trademarks, they may not do so at the expense of the First Amendment. While many cybersquatters wrongfully assert a First Amendment defense to justify their own commercial gain in domain name disputes, legitimate cybergripers typically find themselves caught in the crossfire. Using the “www.[protected mark]sucks.com” model, this Comment argues that neither the Anticybersquatting Consumer Protection Act (“ACPA”) nor ICANN’s Uniform Domain Name Dispute Resolution Policy (“UDRP”) should prevent a legitimate cybergriper from using a trademark in a domain name to protest a particular company or product. In comparing the history of both the ACPA and ICANN’s dispute resolution policy, this Comment analyzes both frameworks as applied to actual domain name disputes, concentrating on the fair use defense and ICANN anomalies. It further distinguishes Internet protest from protest in a “brick-and-mortar” setting, and explains how traditional cybersquatting issues do not apply to protest and parody sites. In comparing both systems in terms of public policy and international considerations, this Comment concludes with potential solutions in light of new legal developments. |
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