The Illinois Business Law Journal

Chipping Away at the RIAA's "Making Available" Theory of Copyright Infringement

I.    Introduction

On September 8, 2003, the Recording Industry Association of America (RIAA) filed copyright infringement lawsuits against 261 individuals for sharing songs on peer-to-peer (P2P) networks.[1]  In the five years since, the RIAA has sued, settled, or threatened litigation against over 30,000 Americans for alleged violations of the Digital Millennium Copyright Act.[2]  These actions have attracted a great deal of public attention, largely due to the fact that the suits have hit very close to home for many Americans.  Unlike prior lawsuits, which targeted software programs such as Napster and Grokster, this new chapter in the file-sharing saga has focused on ordinary people.[3]  The targets of the RIAA’s legal claims run the spectrum of everyday people who are not typically the subjects of copyright actions, including children, parents, grandparents, single mothers, professors, and college students.[4]

The RIAA’s strategic offensive against music consumers has spurred a firestorm of debate concerning topics such as copyright law, technology, privacy, and legal procedure.  For the first few years of the RIAA’s legal efforts, the focus of legal and social observers centered on the RIAA’s tactics for identifying and filing suit against potential defendants.[5]  In the last year, however, as contested cases have made their way through district court litigation, the focus has shifted to the interpretation of black-letter copyright law.  The RIAA’s “making available” theory of infringement has garnered a great deal of attention, though its acceptance by district courts has been inconsistent.  To date, the few district courts to rule on the matter have each interpreted the Copyright Act differently in the context of file-sharing, indicating that there is likely to be ongoing uncertainty until appellate level courts offer clarification.  For the moment, though the trend is moving away from acceptance of the "making available" theory, courts appear more willing to allow the RIAA to prevail on the basis of actual dissemination.

Seagate Files Patent Infringement Lawsuit Against Competitor

I.     Introduction
        In response to increasing market pressure on their core business, Seagate Technologies is asserting a handful of its patents against manufacturers of flash memory-based solid state drives (SSDs) products.  Seagate Technology is currently the world’s largest manufacturer of hard-disk drives (HDDs), but lags behind several competitors in the SSD market.  [1]  On Monday, April 14th, Seagate Technology filed a patent infringement lawsuit against STEC.  The lawsuit, filed in the US District Court for the Northern District of California, alleges infringement of four Seagate patents.   [2]  Industry commentators believe that Seagate’s lawsuit is a result of increasing market pressure on their core business, which competes directly with that of STEC.  By filing an infringement lawsuit now, Seagate opens several options for itself in the face of a potential collapse in sales for its major products.   

Patent Reform Act Is Considered By U.S. Senate

I.     Introduction
        Robust protection for intellectual property is one of the chief engines for economic growth in the United States.  Patents, copyright and trademark laws provide vigorous, reliable protection for US intellectual property, which is valued at more than $5 trillion by the Commerce Department.  [1]  With regards to patents, most commentators and interested parties agree that at least some type of modification or reform is necessary.

Scrabble vs. Scrabulous

Background
On May 24, 2007, Facebook CEO Mark Zuckerberg announced that the privately held social networking site he founded in 2004 would open to third-party developers, transforming itself from a popular website to a platform on which other businesses can operate. [1]  Nearly one year later, “more than 14,000 applications from third-party developers are live on Facebook, allowing users to do everything from flirt to browse for books.” [2]

Varying Intellectual Property Regimes: The Reception of Gray Market Goods in the United States and the European Union

Most consumers agree that intellectual property law is essential to ensure that creators of inventions, ideas, designs, services and the like are rewarded for their creativity and to promote the continuation of such creations.[1] In order to grant creators with the incentive to continue creating, such creators must be equipped with the satisfaction of knowing that their creations will not be transformed into cheap imitations which will inevitably compete with their own original creations. Intellectual property is a field in which only the most innovative thrive. While imitation is often considered the most sincere form of flattery, it is doubtful that inventors will continue to introduce the same number of creations at exponentially high rates, knowing that their unique innovations may be reintroduced into the same market to compete with their original goods within a short period of time. The protection of intellectual property is at the forefront of agreements between nation-states because of the relative ease of copying, and the lax attitude of some nation-states to prevent and punish infringement.[2] A prevailing argument is the thesis that "technology drives investment" and to the extent that technology is reluctant to flow where it is not protected, the lack of an adequate level of protection could stunt technological transfer and foreign investment entirely.[3]

Google Defends Its Trademark From Genericide

I.     Introduction.

Over the last decade, Google has quickly risen to dominate the internet search arena.  The company’s rapid ascension is marked by a corresponding rise in the value and recognition of the Google trademark.  In that time, Google has attached its name to an increasingly wide-range of products and services, such as Google News, Google Maps and Google Images.  On occasion, Google has also manipulated its trademark into easily recognizable derivatives, such as its web mail service Gmail.  Google also alters its primary trademark on major holidays, adding playful cartoon flourishes to its recognizable search page. 

Abandoned Software

Piracy, the copying and distribution of software without permission from the copyright holder, is a major concern for those involved in the IT industry.  Losses due to software piracy have been estimated at 33 billion dollars per year, [1] although other groups claim these estimates are too high. [2]  Most piracy consists of downloading software for free, instead of paying retail price.  However, there is a small subset of software piracy that falls into a grey area of the copyright law.  Older software works enjoy copyright protection.  But unlike a copy of Microsoft Windows or Halo 3, in some cases it is unclear who owns the copyright on the software.  Furthermore, a lot of old software, especially video games, is unavailable at retail.  And unlike books, music, or movies, old games are stored on easily damaged, decayable media, such as floppy disk.  Given the underlying goal of copyright to deliver works into the public domain after giving the author a period of protection, there is value in preserving "abandonware".  Unfortunately, the current law of copyright does not adequately balance the two goals of intellectual property in the United States.

Google's Book Search Library Project Faces Copyright Challenges

I. Introduction

Google’s stated mission is “to organize the world’s information and make it universally accessible and useful.”  [1]  As part of that mission, the Google Book Search Library Project is scanning and organizing printed books from dozens of libraries. By digitizing these books and making them available online, the Google Book Project will potentially benefit academic research around the world by increasing accessibility to rare and remote volumes. Google plans to make its entire digital library searchable as part of its primary search engine, reaping profits from its current advertisement structure. However, the Project has drawn opposition from some publishers, librarians and academics for a variety of reasons, including threats to copyright, scan quality and search biases.

A Novel Solution to an Ancient Problem: Could the Design Piracy Prohibition Act Offer Fashion Designs Complete Protection from Imitation?

Fashion is not simply a fad. It is here to stay. Clothing is not only a necessity, but a way to make a statement. The global fashion industry sells more than $750 billion of apparel annually.[1] Major fashion design firms, such as Gucci, Prada, Armani, Ralph Lauren, and Chanel, produce new apparel designs continually, but market their design output via collections introduced seasonally in a series of runway shows.[2] While it is true that trends are constantly in flux, there is always a specific trend each season which dominates the runway and retail stores. The fashion industry’s products are typically segmented into broad categories forming what has been described as a fashion pyramid, consisting of a designer category at the top with three different segmentations of products.[3] First is a very small trade in haute couture, or extremely expensive custom designed clothing entirely for women.[4] Directly below is a much larger business in designer ready-to-wear clothing for women and men.[5] This tier is further segmented into prestige collections and lower-priced bridge collections offered by many famous designers.[6] Another level down is “better” fashion, an even larger category that consists of moderately priced apparel and the basic commodity category.[7]

RIAA Advances the Legal Battle Against Piracy

I. Introduction

The Recording Industry Association of America’s (RIAA) recent victory over alleged file-sharer Jammie Thomas represents the latest step in their lengthy and costly legal campaign against online music piracy. Since its 1999 lawsuit against Napster [1], the RIAA has been engaged in non-stop litigation against a variety of alleged infringers, from centralized distribution networks to decentralized peer-to-peer networks. “In September of 2003, the RIAA adjusted their legal strategy and began to sue individuals suspected of sharing music files online.”  [2]  Barring a successful appeal, the verdict against Thomas potentially sets several  legal precedents favorable to the RIAA.