Samuel A. Rebelsky
Although this volume covers a wide variety of issues related to the application of intellectual property law in the information age, there are many topics that we were unable to cover. In particular, we focused on two of the four areas of intellectual property law, copyright and patent. The articles in this volume do not cover trademark or trade secret. They also do not approach the IP-related issue of academic honesty. All three areas provide a wealth of opportunities for one to consider the conflict between traditional notions of ownership ideas and modern notions of technology-based information. There are also many other issues that one might consider within the areas of patent and copyright.
As a service for future writers (and for ourselves), we have gathered a number of topics worth considering. Many still focus on copyright and patent, in part because trademark and trade secret seem to affect corporations more than individuals. We hope that Volume 2 will cover some of these topics.
U.S. Trademark law gives trademark owners the exclusive right to use a
name or mark in a particular area of commerce. The same name can be
owned by different people or companies for different areas of commerce.
The Internet Domain Name System (DNS), in effect, provides only one
primary domain for any name (e.g., www.amazon.com). How
have companies and the courts handled these ownership issues?
As we suggested in Appendix ##, many authors on the Web take information from other Web sites and fail to follow appropriate citation guidelines. Such reuse is probably legal, and even falls within accepted practice on the Web, but can create many difficulties for students and scholars who want to trace the source of an idea. What is being done about this situation? What should teachers, who want to provide the best possible example to their students, do about this problem?
As Jesse Vernon notes in his preface and William Dawson notes in the introduction to his paper, copying is a natural part of computation. Computers copy programs from the hard drive or CD-ROM drive to memory when you run them. Web browsers copy Web pages over the Internet and may make extra copies on the user's hard drive. The courts have clearly had difficulty deciding how such copying can be legal within existing copyright law. Attempts to permit it can leave holes for copyright violators to abuse. Attempts to limit it can deter honest people from legally using things they have paid for. How can Congress balance the needs of users with the needs of copyright holders?
Early in the semester, we considered the question What does U.S. IP law
say about the legality of making a link to another page on the World Wide
Web?
We did not reach a consensus on the answers. Since that time,
a leading academic institution has forbid its students to make links to
certain sites for fear of IP lawsuits. What does the law really say?
What should it say?
Many Web sites now offer page mediators that modify Web pages from other sites before they are presented to the reader. For example, a mediator might translate a page from one language to another or highlight particular terms on the page. What are the legal implications of such mediators?
In the past, the courts have ruled that natural collections of information, such as phone books, are not protected by U.S. Copyright law. More recently, the courts and the Congress have permitted certain automatically-created collections to be protected by copyright law. How is it determined what is and what is not protected?
Some opponents of the broad reach of copyright and patent suggest that technology can be used to support other ways of benefiting the author of works, such as guaranteed micropayments. What is the current status of such proposals?
The status of computer user interfaces under IP law is somewhat
confused. In some cases, they have been protected by patent law. In
others, by copyright law. In still others, they have been protected by
trademark. Perhaps more importantly, many critics have suggested that
granting protections to user interfaces for computer programs is much
like granting protection to the user interface
for a car. If we
protected the creator of a steering wheel or gas pedal, the auto industry
would not have advanced as quickly as it did. What is and should be
done to protect the authors of user interfaces while benefiting society
at large?
For years, artists have developed new works, in part, by reusing the work of others. Computer technology makes such reuse much easier. Perhaps as importantly, it makes the detection of such reuse much easier. In many cases, the ease of copying and detection has led to lawsuits about copyright violation. How have the courts and Congress balanced the needs and rights of artists? What do philosophers and historians of art say about the proper balance?
In a virtual community or discussion board, the copyright to each posting is held by the author of that posting. How do boards and communities accommodate the regular copying that happens without violating the law?
Computer programs seem like an odd arena in which to apply trade secret law because computer programs are amenable to automatic disassembly. Nonetheless, trade secret has been applied in some software cases, such as DVD-CCA v. Pavlovich, which focused on DeCSS software. In addition, some aspects of the Digital Millenium Copyright Act criminalize many forms of disassembly, which might lead companies to choose trade secret rather than copyright or patent to protect their works. How and how successfully are companies currently using trade secret law in the computer realm?
Much of our focus is IP law in America. How have other countries dealt with these issues? Given the ability of the Internet to cross national boundaries, how have countries dealt with conflicts between interpretations or between granted privileges?