The two best sites on the Internet for general questions about American legal doctrine are FindLaw and the Legal Information Institute run by Cornell Law School.



The most comprehensive index to materials pertaining to intellectual property available on the Internet is The Franklin Pierce Intellectual Property Information Mall page.

The World Wide Web Consortium is a group exploring the development of the web, considering many issues including legal ones. Their site includes much to browse. Their Intellectual Property section and Law of Linking section are particularly relevant to this course.

A wealth of information on Internet and IP law is available at the site of the law firm Perkins Coie

**NEW** Advanced Copyright Issues On The Internet by David L. Hayes, Esq. of Fenwick & West.

**NEW** For a European view, see the European Copyright User Platform or the Central European and Eastern European Copyright User Platform

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A. Navigating the Web: Metatags, Linking, Framing & Caching

[cases] [articles][other]

Cases (by date)

Framing Cases:

The Washington Post Co., et al. v. TotalNews, Inc., 97 Civ. 1190 (S.D.N.Y., filed Feb. 2, 1997):  Case settled June 5, 1997.  No opinion was issued.  You can see the Complaint or the text of the Settlement.

Futuredontics, Inc. v. Applied Anagramics, Inc., No. 97-56711, 1998 U.S. App. LEXIS 17012 (9th Cir. 07/23/98).  Court denies preliminary injunction against AAI's use of a framed link to Futuredontics' web site.  The denial was upheld on appeal.  For more information see this article discussing the case.

Linking Cases:

Shetland Times Ltd. v. Dr. Jonathan Willis and Zetnews, Ltd., Scotland Court of Sessions (Oct. 24, 1996): Case settled Nov. 1997; no opinion issued. Text of Settlement

Ticketmaster Corp. v. Microsoft Corp. [CV 97-3055RAP] (C.D. Cal., filed April 28, 1997): Case settled; no opinion issued. Text of Complaint.

Bernstein v. J.C. Penney, Inc., No. 98-2958-R (CD CA, dismissal Sept. 22, 1998).  Case dismissed.  For a discussion of the case see this article.

Church of Scientology v. Dataweb et al, Cause No. 96/1048 (Dist. Ct. of the Hague, Holland, June 9, 1999). Court found ISP liable for its customer's posting of infringing material on the Web. Liability was found because there was notice, which could not be reasonably doubted, of the poster's activities. View an article about the case, or the opinion (translated into English).

Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., Case No. 2:99-CV-808C (C.D. Utah, Dec. 6, 1999). Enjoined defendant from providing links on its site to copyrighted materials of plaintiff. Plaintiff was found likely to succeed on the merits of its claim of contributory infringement where defendant posted messages suggesting users access the copyrighted materials via their links. See readings for a summary or the complete opinion of this case.

Kelly v. Arriba Soft Corp., Summary (Dec. 15, 1999).

Meta tag Cases:

Insituform Technologies, Inc. v. Natíl Envirotech Group, L.L.C. [Civil Action 97-2064 (E.D. La.); settled Aug. 27, 1997]:  No opinion issued. You can see a case discussion by the firm that represented Insituform Technologies.

Oppedahl & Larson v. Advanced Concepts [CivilAction 97-3-1592 (D. Colo.) filed July 23, 1997]. You can see the Complaint and the permanent injunctions entered with respect to the various defendants, namely Welch and Advanced Concepts, MSI Marketing, Inc., Professional Website Development, Internet Business Services, and Williams.

Playboy Enterprises, Inc. v. Calvin Designer Label [DC Ncalif, No. C 97-3204; 9/8/97].  You can see the Complaint and the Preliminary Injunction Order.

Playboy Enterprises, Inc. v. Welles No. 98-CV-0413-K (JFS) (S.D. Cal. Apr. 21, 1998). Case discussion on the New York Times Web page. Registration required. Full text of the Decision.

Niton Corp. v. Radiation Monitoring Devices, Inc, 27 F. Supp. 2d 102 (D. Mass. 11/18/98): Court granted preliminary injunction against defendent, barring it from using anything in its meta tags that would mislead visitors in a number of different ways. See the readings for a summary or the complete opinion of this case.

SNA Inc. v. Array et al, No. CIV A 97-7158 (E.D. Pa., June 9, 1999). Enjoined defendant from using plaintiff's name in its meta tags.

Articles (in vaguely alphabetical order)

Guy Alvarez, "A Beginner's Guide to Search Engines and Directories"
Includes links to examples of each.

Duncan Campbell, "Computing and the Net: Shetland showdown Duncan Campbell on a good day in court for the Web.":  Editorial highlighting the fact that the Shetland News, if not settled, would have had a significant impact on the entire Internet community. Also criticizes Shetland News for bringing suit.

Caching on the Internet:  Comprehensive discussion of the activity of caching.  Describes types of caching, drawbacks and benefits, and the role of copyright law.

Computer & Online Industry Litigation Reporter, Microsoft's Link to Ticketmaster Site Spurs Trademark Lawsuit. Article discussing the case brought by Ticketmaster against Microsoft seeking to prohibit the linking to Ticketmaster's site through Microsoft's Seattle Sidewalk web site.

Computer & Online Industry Litigation Reporter, Playboy Enterprises v. Welles Short article discussing the recent case brought by Playboy against Playmate Terri Welles for using the trademarked terms "Playmate" and "Playboy" in Welles' meta tag list. The court sided with Welles and allowed the use of the terms.

The Computer Lawyer, Futuredontics, Inc. v. Applied Anagramics, Inc. Article discussing the denial of a preliminary injunction against AAI for linking to and framing the Futuredontics Web site.

Law Primer:  Copyright Basics: If you are unfamiliar with this body of law and would like to know more, click here to check out our copyright primer and related links.

Frequently Asked Questions about Caching:  Question and answer format discusses the technical side of caching including privacy and security issues.

Martin J.Elgison and James M. Jordan III, "Trademark Cases Arise from Meta-Tags, Frames. Disputes Involve Search-Engine Indexes,Web Sites Within Web Sites, As Well As Hyperlinking.": In-depth article which focuses on "the delicate balance between protecting the rights of people and businesses and preserving the spirit of open communication that is the hallmark of the Web." Areas examined include spamming, linking, framing, and consumer privacy.

Matt Jackson, "Linking Copyright to Homepages.": Law review article discussing in detail copyright issues and linking as well as related doctrinal considerations. Provides background on constitutional basis and economic rationale for copyright law. Primer included on how the Internet works.

Tim Jackson, "The Case of the Invisible Ink.": This article discusses the idea that trademark infringement claims such as the one in the Oppedahl & Larson case are attenuated.  It suggests that surfers will not be misled or confused in the sense that trademark cases are generally thought of.  The article concludes by downplaying the role that meta tags will have in the long run, given the fast-paced development of the Web.

Meeka Jun, "MetaTags: The Case of the Invisible Infringer.": Short article discussing the Playboy Enterprises Inc. v. Calvin Designer Label case.

Carl S. Kaplan, "Is Linking Always Legal? The Experts Aren't Sure."

Jeffrey R. Kuester and Peter A. Nieves,  "What's all the hype about hyperlinking?":  Short article advocating the activity of linking and asserting that it is "the essence of the Web."  Also discusses key linking cases and the use of state common-law claims in the Internet context.  Looks at the feasibility of applying state law to regulate Internet activities. Concludes by commenting on recent federal attempts to regulate the Internet through the now defunct Communications Decency Act (CDA).

Wendy R. Leibowitz, "Firm Sues for Invisible Use of Its Trademark on 'Net.' Partner Protests Use of His Law Firm's Name in 'Meta-Tags,' or Web Site Codes."  Short piece discussing Oppedahl & Larson and critical trademark distinction in metatag cases.

Jonathan Lindsay, Recent Developments: Excite Sued over Sale of Advertising Space: In this
first-of-its-kind suit, Estee Lauder is claiming that Excite has violated its trademark by selling advertising space to Estee Lauder's competitors, where the ads sold are linked to the search term "Estee Lauder."  Playboy has also filed a similar suit against Excite.

Joe Liu, "Overview of Trademark Law." Much of the debate concerning the legitimacy of metatags involves trademark law. If you are unfamiliar with this body of law and would like a brief introduction, click here.

David J. Loundy, "HiddenCode Sparks High-Profile Lawsuit.": Detailed synopsis of the metatags case brought by Oppedahl & Larson case.

Mary M. Luria, "Controlling Web Advertising: Spamming, Linking, Framing, and Privacy.":  In-depth article which focuses on "the delicate balance between protecting the rights of people and businesses and preserving the spirit of open communication that is the hallmark of the Web." Areas examined include spamming, linking, framing, and consumer privacy.

John M. Mrsich, Meeka Jun, "TermsYou Need to Know: Search Engines.":  Description of how search engines work; terms used; and distinction among search engines, search directories, and search managers.

Jacqueline Paige, Scottish Court Orders Online Newspaper to Remove Links to Competitor's Website. Describes the copyright infringement and unfair competition claims brought by Shetland Times.

Mark Sableman, Link Law: The Emerging Law of Internet Hyperlinks. The most recent and thorough examination of legal implications of hyperlink use on the Internet. A long but comprehensive look at the many legal arguments that can be made for and against users of hyperlinks.

Lisa Sanger, Caching on the Internet, 1996 Definitions and discussion of caching issues.

Software Law Bulletin, CA Judge Dismisses Copyright Claims Based on Linking. Discusses the Bernstein v. J.C. Penney case, the first case of its kind on the issue of copyright liability for linking to other sites that display infringing materials.

Michelle Spaulding, "Misappropriation" (1998). One of the doctrine that legal scholars are looking to for guidance and which may play a role in the future of cyberspace law is the law of "misappropriation."  This article provides a brief introduction.

Brad Templeton, 10 Big Myths about copyright explained. "An attempt to answer common myths about copyright seen on the net and to cover issues related to copyright and USENET/Internet publication."

Law Primer:  Trademark Law.  Much of the debate concerning the legitimacy of meta tags involves trademark law. If you are unfamiliar with this body of law and would like to know more, check out our trademark section in the library.

Timothy J. Walton, Copyright for Webmasters. This article gives a basic description of copyright law, aimed at those who are involved in the production of Web sites.

Timothy J. Walton, Trademark Law for Webmasters. Same as above, but focusing on trademark law and the Web.

Jonathan Wills, "Floatingpoints: Feedback: Tale of two halves.": Response by Shetland News' operator to previous editorial.

Jonathan Wilson, How Metatags Can Infringe Trademarks Without a Trace; New Internet Claim Stretches Fabric of Existing Law Briefly describes the use of meta tags and why they can be seen as trademark infringements. Uses three cases, namely Playboy v. Calvin Designer Label, Insituform Technologies Inc. sued National Envirotech Group, and Oppedahl & Larson v. Advanced Concept to describe the current state of the law in this areas.



"AltaVista Cannot Use Its Name on Products or Services, MA Judge Says."
Discusses a linking case involving the search engine AltaVista and AltaVista Technology, a software development company unrelated to the search engine.

Brad Templeton's thoughts on liability for linking and framing:  Legal opinion from a non-legal source on whether linking is copyright protected.  Also discusses issues of contributory infringement, ability to identify authorship and framing.

CA Judge Dismisses Copyright Claims Based on Linking, Software Law Bulletin, Nov., 1998.

"Computing and the Net: Shetland showdown Duncan Campbell on a good day in court for the Web."  Editorial criticizing Shetland News.

"Hidden Use of Trademarks On Web Site May Infringe."  Discussing Playboy injunction.

Hypertext Linking Called into Question:  Brief discussion of Ticketmaster case. Provides links to the complaint, Microsoft's Answer, and Ticketmaster's Reply.  Also has links to related articles.

Judge Enjoins Web Site's Use of Infringing Meta-Tag: Article discussing the Playboy Enterprises, Inc. v. Calvin Designer Label case. Contains links to the complaint and order issued in the case.

The Link Controversy Page:  A very comprehensive site providing links to articles and cases.  Don't try to cover the whole site!  Just skim it to get a sense of the debate.

Linking and Liability:  Nice overview of the linking controvery. Begins by describing, in detail, the activity of linking.  Then looks at the linking issue against the backdrop of current legal doctrine, such as derivative-work rights under copyright law, the doctrine of 'passing off', defamation, and trademark infringement.  Concludes by providing a summary of the Shetland News case.

Meta Tag Lawsuits:  A concise overview of all meta tag cases and links to articles and other resources.  Again, you shouldn't try to review the entire site, just skim the case overviews.

"Microsoft's Link to Ticketmaster Site Spurs Trademark Lawsuit."
Short piece discussing origins of Ticketmaster v. Microsoft case and legal issues involved.

"Model's Use of Playboy Marks on Web Sie Does Not Infringe, Judge Says," Computer & Online Industry Litigation Reporter, June 2, 1998.

The Perkins Coie Internet Case Digest: excellent and dilligently updated database of Internet case law.

"Scottish Court Orders Online Newspaper to Remove Links to Competitor's Website."  Brief piece discussing settlement of Shetland Times v. Shetland News case.

"Shetland Islands Linking Lawsuit Settled."  Discussing settlement of case.

Terms of TotalNews settlement

TotalNews, Publishers Settle Suit: CNET news bulletin announcing the TotalNews settlement.

Unauthorized Linking Prohibited in Framing Suit Settlement:  Short article discussing the settlement in the TotalNews case. Also provides links to related stories and court filings. Links to a discussion of the Ticketmaster case.

For a demonstration of how framing works, follow this link -- First press the NPR link (NPR didn't file suit and agreed to let TotalNews continue framing their material). Then press the CNN Interactive link (CNN was a party to the suit). Note the difference.

To see an example of metatag keywords, click on the following two links. For each one, when the document has entirely finished loading, right click on the page and select "Page Source" or "View Frame Source" on the pop-up menu. A new window will come up, revealing the HTML code used to create the Web page. Remaining near the top of the document, scroll to the right until you see meta name="keywords" content=. The information following "content" will be the keywords the website operator intends search engines to utilize. For these two links, note the companies listed.

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B. Respect & Integrity

[cases] [legislation][articles][other]

Cases (by date)

Case Summaries

Gilliam v. American Broadcasting Co., 538 F.2d 14 (2d Cir. 1976)
(establishing alternative sources of moral rights)

Sony Corp v. Universal Studios, 464 U.S. 417 (1984)
(discussing the fair use and contributory infringement issues involved in the use of home video recording systems)

Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)
(applying the work-for-hire doctrine)

New Kids on the Block v. News America Publishing, 971 F.2d 302 (9th Cir. 1992)
(permitting nominal use of a trademark in a newspaper poll about New Kids on the Block)

Anheuser Busch v. L&L Wings Inc. 962 F.2d 316 (4th Cir. 1994)
(applying "fair use" in the Myrtle Beach t-shirt case)

Campbell, aka Skyywalker, et. al. v. Acuff Rose Music, 114 S.Ct. 1164 (1994)
(discussing copyright "fair use" with regard to 2 Live Crew's parody of the song, "Oh, Pretty Woman")

Deere & Co. v. MTD, 41 F.3d 39 (2d Cir. 1994)
(discussing the digital alteration of a trademark, in the context of comparative advertising)

Polo Ralph Lauren v. Chinatown Gift Shop, 855 F.Supp. 648 (S.D.N.Y. 1994)
(holding that Internet Service Providers may be liable for the trademark infringement of their customers)

Carter v. Helmsley-Spear, 71 F.3d 77 (2d Cir. 1995)
(the only extant decision applying the Visual Artists' Rights Act)

Mattel v. MCA Records, 1998 U.S. Dist. Lexis 7310 (C.D.C.A. 1998)
(applying the "fair use" doctrine to a humorous song called "Barbie Girl," which parodies the doll)


Selections from the Copyright Act

1990 Visual Artists' Rights Act

Articles (by author's name)

Crosley Bendix on U.S. Copyright (arguments that copyright law has become obsolete)

Steven Cordero, "Cocaine-Cola, the Velvet Elvis and Anti-Barbie: Defending the Trademark
And Publicity Rights of Cultural Icons," 8 Fordham I.P. Media & Ent. L. J. 599 (Winter 1988)
(arguing for "a new standard [in] cases dealing with the unauthorized use of cultural icons, permitting uninhibited use so long as there is no confusion as to source, sponsorship or affiliation)

Thomas F. Cotter, "Pragmatism, Economics, and the Droit Moral," 76 N.C.L.Rev. 1 (1997)
(excerpt: overview of moral rights)

Colleen Creamer Fielkow, "Clashing Rights under United States Copyright Law: Harmonizing an
Employer's Economic Right with the Artist-Employee's Moral Rights in a Work Made For Hire,"
7 DePaul-LCA J. Art & Ent. L. 218 (Spring 1997) (moral rights in works for hire)

Terry Fisher, Theories of Intellectual Property (draft) (explaining various theoretical bases for
intellectual property rights, including personality theory)

Henry Hansmann and Marina Santilli, "Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analysis," 26 J. Legal Stud. 95 (1997) (providing a comparative discussion and economic analysis of moral rights doctrine)

Michael J. Higgins, "A Pitch for the Right of Publicity," IP Magazine, December 1998

Mike Holderness, "Moral Rights and Authors' Rights: The Keys to the Information Age," The Journal of Information, Law and Technology (1998) (offering an explanation of the rationales behind moral rights doctrine and an overview of how the Berne Convention has been adopted throughout Europe, in the United States, and in Japan)

Excerpt from Justin Hughes, "Personality Interests of Artists and Inventors in Intellectual Property," 16 Cardozo Arts & Ent. L.J. 81 (1998)

Justin Hughes, "Personality Interests of Artists and Inventors in Intellectual Property,"
16 Cardozo Arts & Ent. L.J. 81 (1998)

Flore Krigsman, "Section 43(a) of the Lanham Act as a Defender of Artists' 'Moral Rights,'"
73 Trade-Mark Rep. 251 (May-June 1983) (alternative sources of moral rights protection)

Arlen W. Langvardt, "Protected Marks and Protected Speech: Establishing the First
Amendment Boundaries in Trademark Parody Cases," 36 Vill L.Rev. 1 (February, 1991)

Michael Madow, "Private Ownership of Public Image: Popular Culture and Publicity Rights," 81 Calif. L. Rev. 125 (1993) (describing the doctrine of publicity rights)

Benjamin R. Seecof, "Scanning into the Future of Copyrightable Images:
Computer-Based Image Processing Poses a Present Threat," 5 High Tech L.J. 371 (1990)
(on the distortion of images and its impact on copyright rules)

Rebecca Tushnet, "Legal Fictions: Copyright, Fan Fiction, and a New Common Law,"
17 Loy. L.A. Ent. L.J. 651 (1997) (asserting that “the secondary creativity expressed in
non-commercial fan fiction deserves the protection of the law”)

Excerpt from Raphael Winick, "Intellectual Property, Defamation and the Digital Alteration of Visual Images," 21 Colum.-VLA J.L. & Arts 143 (Winter 1997)

Raphael Winick, "Intellectual Property, Defamation and the Digital Alteration of Visual Images,"
21 Colum.-VLA J.L. & Arts 143 (Winter 1997) (on the distortion of images)


Betsy Rosenblatt, "Copyright Basics," Spring 1998

Betsy Rosenblatt, "Moral Rights Basics," Spring 1998

BitLaw Primer on the "Fair Use" Doctrine

Regarding Napier's Distorted Barbie:

Napier's digital gallery

Napier describes his art

Napier's original Distorted Barbie

Napier's Distorted Barbie published in the e-zine Enterzone

Mattel's cease and desist letters sent to Enterzone and to Interport

Napier's revised work: Distorted $arbie

"The Daily Barbie":  Day-to-day account of the progress of the Napier/Mattel controversy.

The Daily Barbie encouraged readers to mirror Napier's original site.

One of the mirrored sites.

Essays about symbology from Napier's site.

Other Hyperlinks from the Case studies:

"The Dolls, The Dish & the Dollars?

Mattel's own Barbie site

A website containing Napier's work

Primer on publicity rights

Primer on moral rights

Site containing Gary Larson's work

Cease-and-desist letter from Gary Larson

Feedback from readers regarding Larson's cease-and-desist letter

One Star Trek fan fiction page

Another Star Trek fan fiction page

The Trek Writer's Guild

Wired news story about Star Trek fan fiction copyright/trademark disputes

Protest site about ST fan fiction copyright.trademark disputes

Another protest site

Paramount's open letter to ST fans re: fan fiction

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C. MP3

[cases] [legislation][articles][other]

Cases (by date)

Sony Corp. v. Universal Studios, Inc., 464 U.S. 417 (1984)


Audio Home Recording Act Text of Digital Millenium Copyright Act, the conference report, and other portions of the legislative history. This page is maintained by the Home Recording Rights Coalition (HRRC), an advocacy group organized "to protect the right to use VCRs, audio recorders and computers for private, non-commercial purposes."

Ronald G. Dunn, Information Industry Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997).

Mike Kirk, American Intellectual Property Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997).

Honorable Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997).

Roy Neel, United States Telephone Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997).

Digital Performance Right in Sound Recordings Act of 1995, 17 U.S.C. 106(6) and 114

No Electronic Theft Act

Federal Anti-Bootleg Statute

Berne Convention (full text)

Berne Article 2 (defining the scope of copyright protection granted under the treaty)

Berne Article 9 (right of reproduction)

WIPO Copyright Treaty of 1996 (summary) | (full text)

Universal Copyright Convention, Paris, 1971

Australian Copyright Act of 1968

Articles (by author's name)

The Future of MP3

John Gartner, "Digital Music Will Cost You":  Jeremy Silver, vice president of new media at EMI, makes predictions about the future of online music and its increasing cost to consumers.

Jimmy Guterman, "MP3 Death Watch":  Suggests that MP3's days on the forefront may soon come to an end.

Christopher Jones, "Swedish Retailer Pushes MP3":  Swedish company claims to be the first in Europe to offer secure digital music distribution.

Patrizia Piccolo, "Music Copyright":  Canadian perspective of music and copyright from a student-at-law.

Eric Scheirer, "MPEG-4: The New Standard":  Article discussing the next generation coding specifications from MPEG from one of its editors.

Michael Stroud, "A Music Industy Death Knell":  Predicts a major shift in the way that music is sold, with the sales model taking the lead and the traditional methods of music distribution moving towards obsoletion.


MP3 Players and Accessories

MP3 Players: provides links to available MP3 players by platform and information about configuring web browsers to enable streaming content

Grab a Player:  From Webmonkey; provides links to various MP3 players and accessories Software:  Provides reviews of and links to popular MP3 software products

MP3 Software:  Links to players, decoders/encoders, rippers, skins and accessories

MPEG3 Hardware:  Portable MP3 players and the latest in MP3 hardware devices

MP3 Search Engines

MP3 Search Engines:  Links to a number of popular MP3 search sites

Popular MP3 and MP3 Artist Sites

MP3 Information Resources

MP3 Portal:  From; tons of MP3 related links organized by topic and complete with an MP3 news search feature

Find/Play MP3s:  A Webmonkey Guide; provides a superficial summary of the MP3 controversy, links to MP3 players and accessories and a guide to finding MP3 files on the web  An RIAA website which aims to curb online music piracy by  providing students and educators with information about copyrights and penalties for online infringement

Layer-3 Information:  FAQ page from Fraunhofer IIS-A, developers of MP3 technology

MP3 News Resources

MP3 Rocks the Web:  Wired News coverage of everything MP3

Materials on Copyright

Copyright tutorials

Betsy Rosenblatt, "Copyright Basics", Spring 1998

BitLaw Primer

Copyright on the Internet

Cornell Copyright Primer

Cyberspace Law Institute, Cyberspace Law for Non-Lawyers (see lessons 2-12)

Federal Copyright Office Primer

USENET Copyright FAQ by Terry Carrol

Copyright link sites

Stanford University Copyright & Fair Use site

Informational Sites

World Intellectual Property Organization

World Trade Organization Intellectual Property Index

Doing Business in Argentina:  See paragraph 4.4 on copyright.

EU Amended proposal for Directive on copyright and related rights

Link Sites

Franklin Piece Intellectual Property Mall:  International IP links

Dan's Australian Law Index:  Maintains a list of copyright links available from topics index.

European Commission's Intellectual Property Section

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D. Alternatives to IP

[cases] [legislation][articles][other]

Cases (by date)

Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988):  Interesting shrinkwrap case on reverse engineering of software.

Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91 (3d Cir. 1991):  Shrinkwrap case involving warranty for computer equipment sold over the phone.

Arizona Retail Systems v. Software Link, Inc., 831 F. Supp. 759 (D. Ariz. 1993):  Shrinkwrap case involving the disclaimer of implied warranties and alleged oral representations.

ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996):  A prominent recent case involving "shrinkwrap licenses" in the context of a database taken from a CD and posted on the web. Also, a good discussion of various forms of preemption.

Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997):  Shrinkwrap case involving sale of computer and the enforceability of an arbitration clause.

Hotmail Corporation v. Van$ Money Pie, Inc., WL 388389, 1 (N.D. Cal. 1998):  First case to consider the validity of "clickwrap licenses" suggesting that such licenses may be valid and enforceable.


Collections of Information Antipiracy Act, HR 2652 105th Cong (1998): Amended form of the sui generis right created in HR 3531.

Collections of Information Antipiracy Act, HR 354 106th Cong. (1999): Current proposal before the United States Congress amending HR 2652.

Database Investment and Intellectual Property Antipiracy Act, HR 3531 104th Cong. (1996):  Initial response of the United States Congress to the European Database Directive which created a similar, although not identical, sui generis right.

Digital Millennium Copyright Act.

Jonathan Band, Digital Millennium Copyright Act Analysis (especially Title I).

17 USC ch. 10, Digital Audio Recording Devices and Media (browse online).

HR 3048 (Digital Era Enhancement Act):  A proposed alternative to the above bills.

Digital Future Coalition:  Page generally tracking pending copyright legislation.

Directive 96/9/EC of the European Parliament and of the Council of 11th March 1996 on the Legal Protection of Databases, 1996 OJ (L 77) 20:  Directive creating a sui generis right of protection in otherwise non-copyrightable databases.

Draft of Uniform Commercial Code (UCC) Article 2B:  A much-discussed proposal to adapt the Uniform Commercal Code to account for shrinkwrap licenses.

The 2BGuide: Online guide to UCC Article 2B.

Uniform Commercial Code (UCC)

Articles (by author's name)

Life Liberty and the Pursuit of Copyright, Atlantic Unbound roundtable, September (1998): Organized by The Atlantic Monthy, this online debate between John Perry Barlow, Charles Mann, Mark Stefik, and Lawrence Lessig covers the isses without too much depth, and provides a number of interesting links.

John Perry Barlow, "The Economy of Ideas: Selling Wine Without Bottles on the Global Net" Barlow, co-founder of the Electronic Frontier Foundation, envisions in this famous essay (originally published in Wired magazine) a world where information "wine" flows freely without book or tangible medium "bottles" to weigh it down.

Tom W. Bell, "Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine", North Carlonina Law Review, January, (1998):  In this thorough law review article, Professor Bell examines the impact of new technologies on copyright's fair use doctrine, predicting a restriction on fair use and urging a "wait and see" policy.

James Boyle, "Foucault in Cyberspace: Surveillance, Sovereignty, and Hard-Wired Censors":  Like Shapiro, Boyle argues for a more reflective policy that offers an alternative to what he argues is an infelicitous choice between oppressive state regulation and locked-up technological domination.

Coalition for Networked Information, Technological Strategies for Protecting Intellectual Property in the Networked Multimedia Environment: Numerous working papers on copy protection.

Julie E. Cohen, “Copyright and the Jurisprudence of Self-Help” 13 Berkeley Technology Law Journal, 1089 (1998):  Suggesting the possibility of a right to "hack" in order to preserve fair use rights which technological protections are destroying.

Julie Cohen, "A Right to Read Anonymously: A Closer Look at 'copyright management' in Cyberspace", 28 Conn. L. Rev. 981 (1996): Examining privacy implications of copyright management information.

Julie Cohen, "Some Reflections on Copyright Management Systems and Laws Designed to Protect Them," 12 Berkeley Technology Law Journal, 161 (1997): Reflections on the implications of copyright management systems.

Brad Cox, "Superdistribution," Wired (September 1994): Arguing in support of metered use.

Chris DiBona, Sam Ockman and Mark Stone (eds) Open Sources: Voices From the Open Source Revolution, Sebastopol (CA): O'Reilly and Associates, Inc. (1999): Collection of articles from various figures in the Open Source Movement describing and analyzing its characteristics, successes, and future.

Brandon L. Grusd, "Contracting Beyond Copyright: ProCD, Inc. v. Zeidenberg" 10 Harvard Journal of Law and Technology, 353 (1997): Useful summary and  critique of the the decision in ProCD, Inc. v. Zeidenberg.

Trotter Hardy, "Contracts, Copyright and Preemption in a Digital World," 1 Rich. J.L. & Tech. 2 (1995): on copyright preemption of state contract law in cyberspace.

Zachary M. Harrison, "Just Click Here: Article 2B's Failure to Guarantee Adequate Manifestation of Assent in Click-Wrap Contracts" 8 Fordham Intellectual Property, Media & Entertainment Law Journal, 907 (1998): Looks at the law concerning shrinkwrap licenses before and after the ProCD decision and then criticizes the provisions of the UCC.

Niva Elkin-Koren, Copyright Policy and the Limits of Freedom of Contract, 12 Berkeley Tech. L.J. 111 (1997)  Elkin-Koren discusses the conflict between copyright and contract and argues that the boundaries between contract and copyright are unclear; she concludes that we need a less ambiguous policy that ensures some balance between content providers and users.

Terry Fisher, "Property and Contract on the Internet," Draft Paper of June 10, 1998: In this draft paper, our own Professor Fisher predicts that contract and technological protections will supplant intellectual property protection on the internet, and he argues that "courts and legislatures should facilitate and reinforce that shift, but should require that creators (and consumers) when setting up such "private" arrangements abide by restrictions designed to protect the public interest."

The Free Software Story: Collection of articles about the Open Source Movement.

Paul Goldstein, "Copyright and its Substitutes," 1997 Wisconsin L. Rev. 865 (1997):  A good general discussion of both contract law and encryption as substitutes for copyright.

Robert W. Gomulkiewicz, "How Copyleft Uses License Rights to Succeed in the Open Source Software Revolution and the Implications for Article 2B" 36 Houston Law Review 179 (1999):  Describing how copyright and contract are central to the Open Source Movement.

Mark Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. Cal. L. Rev. 1239 (1995): a good overview of issues involved in shrinkwrap licenses.

Mark Lemley, Shrinkwraps in Cyberspace, 35 Jurimetrics J. 311 (1995): a discussion of on-line shrinkwrap licenses.

Lawrence Lessig, "The Constitution of Code: Limitations on Choice-Based Critiques of Cyberspace Regulation" 5 CommLaw Conspectus 181:  Professor Lessig argues that code -- the specifications of the software or technology that creates cyberspace -- is as significant a constraint as law or social norms.

Charles C. Mann, "Who Will Own Your Next Good Idea?," The Atlantic Monthy, September 1998 Mann takes us on a tour of the latest developments in today's intellectual property universe, from software piracy malls in Hong Kong to an electronic book factory statewide, and covers thoroughly the debate about what will happen to intellectual property.

Robert Merges, "The End of Friction? Property Rights and Contract in the Newtonian World of On-line Commerce," 12 Berkeley Technology Law Journal (1997) : Merges argues that property rights are necessary in cyberspace, and that we should remain faithful to the redistributive roots of the fair use doctrine.

Apik Misassian, Comment, "The Death of Copyright: Enforceability of Shrinkwrap Licensing Agreements," 45 U.C.L.A. L. Rev. 569 (1997): overview of issues surrounding shrinkwrap licenses.

David Nimmer, Elliot Brown, Gary N. Frischling, "The Matemorphosis of Contract Into Expand" 87 California Law Review, 17 (1999): Criticizing the increasing prominance of contract in intellectual property matters and the support that Article 2B would give to such contracts.

Eric S. Raymond, "The Cathedral and the Bazaar": The research paper by Eric Raymond which, in part, persuaded Netscape to go open-source with its popular browser.

Eric S. Raymond, "Homesteading the Noosphere": A follow-up paper to "The Cathedral and the Bazaar," in which Eric Raymond examines in detail the property and ownership customs of the Open Source Movement.

Reichman, J.H. and Pamela Samuelson, "Intellectual Property Rights in Data?" 50 Vanderbilt Law Review 51 (1997): Criticism of the various sui generis rights on the basis that they amount to intellectual property rights in data.

Maureen A. O'Rourke, "Copyright Preemption After the ProCD Case: A Market-Based Approach," 12 Berkeley Technology Law Journal (1997): article discussing the ProCD case in detail and comparing the different philosophies of the district and appellate courts.

Maureen A. O'Rourke, "Drawing the Boundary Between Copyright and Contract: Copyright Preemption of Software License Terms," 45 Duke L.J. 479 (1995).

Pamela Samuelson, "Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised," 14 Berkeley Technology Law Journal 519 (1999):  Exploring the reasons why technological protection should not be allowed to create greater interests than that granted by copyright.

Pamela Samuelson, "Legally Speaking: Regulation of Technologies to Protect Copyrighted Works," 39 Communications of the ACM 17-22 (July 1996): Discussing two of the White Paper's legislative proposals - protecting the integrity of copyright management information that will soon be attached to all digital copies of copyrighted works and proscribing technologies or services useful for circumventing technological protection for copyrighted works - and arguing that "both proposals need significant refinement before they are suitable for adoption as either national or international legal norms."

Eric Schlacter, "The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet," 12 Berkeley Tech. L.J. (1997): A discussion of technological protection measures.

Andrew Shapiro, "Street Corners in Cyberspace," The Nation, July 3, (1995): Many commentators fear that technological protection in cyberspace goes so far that public discourse is stifled -- cyberspace becomes "cyberbia." Shapiro argues that we should make conscious efforts to encourage public spaces in cyberspace.

Software Returns to Its Source: Collection of articles in the March 1999 edition of PC Magazine about the Open Source Movement.

Mark Stefik, "Trusted Systems," Scientific American, March 1997  Stefik is a principal scientist at the Xerox Palo Alto Research Center in Palo Alto, California and one of the most articulate supporters of trusted systems technology. In this piece he discusses the arguments for trusted systems and gives a rough sketch on how trusted systems technology works.

Mark Stefik, "Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge us to Rethink Digital Publishing," 12 Berkeley Tech. L.J. 137 (1997): A more comprehensive summary of various trusted systems and their likely impact.

Joel Rothstein Wolfson, "Contract and Copyright Are Not at War: A Reply to "The Metamorphosis of Contract into Expand"" 87 California Law Review 79 (1999) : A reply to Nimmer, et al's "Metamorphosis" article.

Other (links referred to in the module, organized by topic)

General Information on Contract:

  • Contract Basics (from the Cyberspace Law Institute's Cyberspace for Non-Lawyers)
  • Sites Offering Technological Protection Systems:

    Intertrust, Inc.:  Trusted systems technology.
    Folio:  Same.
    Wave Systems Corp.:  Same.
    Digimarc, Corp.:  Providing digital watermarking and search services.
    RSA Data Security:  A primer on cryptography technology.
    First Use:  Providing digital "fingerprinting" service.

    Sites related to Electronic Book Technology:

    MIT Media Lab:  Site explaining the science of "electronic paper."
    SoftBook:  Electronic book technology
    NuvoMedia:  Same.
    Everybook:  Same.

    Examples of On-Line Contracts (see if you can find the terms and conditions):

    Copyright Clearance Center: interesting restrictions on the use of information on the site. Also contains restrictions on linking.
    Visio: interesting restrictions on use of documents found on site.
    West Publishing: restrictions on use of information in a legal directory
    Dell Computer: restricting use to personal, noncommercial use. restricting use of site to use as a shopping resource.
    Ticketmaster: stating that "visitors to this site are hereby granted a single copy license to download (on a single computer only) or print one copy of any of the information found on this site for personal, non-commercial use only."
    CNN: restricting use of content to personal use.

    Sites Relating to Open Source, Net Morality, and Civil Liberties:

    The Cathedral and the Bazaar, the research paper by Eric S. Raymond that persuaded Netscape to go open-source. (There's also a sequel, Homesteading the Noosphere.)

    Electronic Frontier Foundation:  A non-profit organization dedicated to protecting civil liberties in cyberspace. (It is not formally a part of the Open Source movement.) Here's their mission statement.

    The Free Software Foundation pioneered the concept of free software and is "dedicated to eliminating restrictions on copying, redistribution, understanding, and modification of computer programs."

    The Linux Documentation Project is a good way to learn about the most popular open-source operating system.

    Netscape Communications:  Last year, Netscape released its source code to the general public.

    The Open Source Initiative A non-profit organization formed in 1998 to protect the "Open Source" trademark and promote open-sourced software. Introduction to open source and launch announcement.

    Community-based commerce:

    Classifieds2000:  An online auction house and classified advertisement network.
    eBay:  The popular online auction house's statement about its "self-policing community."

    [back to top]

    E. Domain Names

    [cases] [articles][other]

    Cases (by date)

    summaries of some relevant cases

    Cerutti1881 v. Cerutti, Inc., No. 95 CIV 7782, 1998 WL 3350 (S.D.N.Y Jan. 5, 1998)
    Ruling against domain name owner, based on likelihood of confusion.

    Jews for Jesus v. Brodsky 993 F.Supp. 282 (D. N.J. 1998) Defendant owned domain name which linked to a site that disparaged Jews for Jesus and provided another link to a pro-Judaism site.

    KCPL v. William Cary Nash, 1998 WL 823657 (SDNY November, 1998).  The court distinguishes Panavision in two ways.  First, Panavision was decided by a Fed Ct in CA, thus it was based on CA long arm statute.  The CA long arm statute is more permissive than the NY long arm statute which is applicable in this case.  Second, the defendant in Panavision was clearly a cyber pirate while the actions in this case do not constitute cyber piracy.

    Panavision v. Toeppen 141 F.3d 1316 (9th Cir. 1998).  This case deals with the issue of "cybersquatting."  The court in Panavision analyzes infringement as dilution rather than likelihood of confusion.

    Playboy Enterprises, Inc. v. AsiaFocus International, Inc., 1998 WL 724000 (E.D.Va. 1998).  Court found Jurisdiction against defendant located in Hong Kong because the defendant had targeted a Virginia Company.

    Cardservice, Int'l v. McGee, 950 F. Supp. 737 (E.D. Va. 1997)
    Ruling against domain name holder based on likelihood of confusion.

    CDSolutions, Inc. v. Tooker, 965 F. Supp. 17 (N.D. Tex. 1997)
    Finding no personal jurisdiction in a domain name dispute.

    Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997)  This leading personal jurisdiction case established that a passive web site alone is not sufficient to subject one to jurisdiction.  Instead "something else" is needed.

    Interstellar Starship Serv. Ltd. v. Epix, Inc., Civil No. 97-107-FR, 1997 WL 736486 (D. Or. Nov. 20, 1997)
    A declaratory judgment action (in which the parties requested that the court resolve a domain name dispute). The court finds no likelihood of confusion and the domain name owner prevails.

    Juno Online Serv. v. Juno Lighting, Inc., 979 F. Supp. 684 (N.D. Ill. 1997)
    Addressing the defense of trademark misuse in a domain name dispute; finding no trademark infringement for merely "warehousing" domain name.

    Lockheed Martin Corp. v. Network Solutions, Inc., Case No. CV 96-7438 DDP (Anx),1997 WL 381967 (C.D. Cal. Mar. 19, 1997)  Dismissing an action for contributory trademark infringement brought against NSI in domain name dispute.

    Planned Parenthood Federation of America v. Bucci 42 U.S.P.Q.2d 1430 (S.D.N.Y. 1997) sets out the analysis used by courts in likelihood of confusion cases. While this case's interpretations have been questioned by scholars, it is frequently relied on by courts throughout the US in subsequent cases.   At issue in this case is the use of by an antiabortion activist.

    Teletech Customer Care Mgmt., Inc. v. Tele-Tech Co., Inc., 977 F. Supp. 1407 (C.D.Cal. 1997)
    Ruling in favor of trademark owner in domain name dispute, based on trademark dilution.

    Zippo Mfg. Co. v. Zippo Dot Com, 952 F.Supp. 1119 (W.D.Pa. 1997) - The court granted jurisdiction because it determined that purposeful availment exists for an interactive web site.

    Actmedia v. Active Media Int'l, No. 96C3448, 1996 WL 466527 (N.D. Ill. July 17, 1996)
    Ruling against domain name owner based on likelihood of confusion.

    CompExam'r Agency v. Juris, Inc., no. 96-0213-WMB (Ctx), 1996 WL 376600 (C.D.Cal. May 22, 1996)
    Ruling against domain name owner, based on likelihoodof confusion.

    Giacolone v. Network Solutions Inc., No. C-96 20434 RPA/PVT, 1996 WL 887734 (N.D.Cal. June 14, 1996)
    Enjoining trademark owner from using NSI's policy to suspend computer consultant's domain name registration.

    Hasbro, Inc. v. Internet Enternainment Group, Ltd., No. C96-130WD, 1996 WL 84853 (W.D. Wash. Feb. 9, 1996)
    Issuing an injunction against using, a sexually explicit web site, based on trademark dilution.

    InsetSys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996)
    Finding personal jurisdiction in a domain name suit.

    Intermatic v. Toeppen, 947 F. Supp. 1227 (N.D. Ill. 1996)
    Ruling against a domain name "squatter," based on a finding of trademark dilution.

    Sun Microsystems v. Astro-Med, 39 U.S.P.Q.2d (BNA) 1144 (N.D. Cal. Mar. 29, 1996)
    Holding that use of "sunriver" to sell computer products infringes on plaintiff's "sun" mark in a domain name dispute.

    Toys'R'Us v. Akkaoui, 40 U.S.P.Q.2d (BNA) 1836 (N.D. Cal. Oct. 29, 1996)
    Ruling that "" dilutes trademark in Toys'R'Us.

    Articles (by author's name)

    Dan L. Burk, Trademarks Along the Infobahn: A First Look at the Emerging Law of Cybermarks," 1 RichJ. L. & Tech. 1 (1995)
    A general summary of domain name disputes.

    Jeri Clausing, Proposal on Internet Names Favors Corporate Interests A critique of the WIPO proposal in the cyber-New York Times (a free subscription is required to view the article).

    Electronic Frontier Foundation domain name dispute archive
    Numerous articles about the domain name controversy.

    John Fontana, "Trademark Trickery: In scam, search engines duped into diverting queries to competitive Web sites."
    Opinionated article discussing Insituform and Playboy cases.

    A. Michael Froomkin, "A Critique of WIPO's RFC3".
    An excellent and extremely detailed critical analysis of the WIPO interim report.

    A. Michael Froomkin, "Quick Guide to Major Flaws in the WIPO Domain Name Proposal"
    Critique of WIPO Proposal

    Alexander Gigante, "Domain-ia": The Growing Tension between the DNS and Trademark law.
    Discussing incompatibility between the domain name system and trademark law.

    Laina Raveendran Greene, Chair and Facilitator of APPLe provides an Asian perspective and analysis of WIPO's interim report.

    Jurisdictional Issues in Domain Name Disputes, an article published by Perkins Coie.

    Harvard Kennedy School of Government conference on Internet governance, with papers re: domain name problem.
    Various articles on domain name governance.

    Peter H. Lewis, "The Great Domain Name Hunt", An interesting New York Times article on open ccTLDs where the author discusses his search for an available domain name with his name.  To read this article, go to the New York Times web site.  In the "search the site" box type Domain Names.  This will bring up a page that allows you to search back issues.  Select "search all articles" and type in "The Great Domain Name Hunt."

    David J. Loundy, Primer on Trademark Law and Internet Addresses, John Marshall Journal of Computer and Information Law, Spring 1997.  This article addresses the trademark issues found in third level domains and user names.

    David Maher, Trademarks on the Internet: Who's in Charge?
    A discussion of trademarks and domain names.

    Lateef Matima, Trademarks, Copyrights and the Internet, Klehr, Harrison, Harvey, Branzburg & Ellers Philadelphia, Pennsylvania. ALI-ABA Course of Study, April 23, 1998.  This article provides a good overview of personal jurisdiction

    Sharie Mendrey, Excerpt from Sovereignty in Cyberspace: Ways of Preventing Cyberanarchy Discusses ICANN's formation and role in Internet governance.

    Don Mitchell, et al., In Whose Domain: Name Service in Adolescence
    A discussion of domain name proposals.

    Milton L. Mueller, Internet Domain Names: Privatization, Competition, and Freedom of Expression. A Cato Institute Briefing Paper. Argues for minimal trademark protection in this field.  The paper also defines and proposes changes in the current domain name system and discusses the role of freedom of expression.

    Ira S. Nathanson, Comment, Showdown at the Domain Name Corral: Property Rights and Personal Jurisdiction over Squatters, Poachers and other Parasites, 58 U. Pitt. L. Rev. 911 (1997)
    A good summary of case law and major issues in domain name context.

    A New Sword To Combat Domain Name Piracy. Internet Client Advisory, February 1999.  Discussing the impact of a Virginia State Court declaration that domain names are property and can be seized and sold to pay a default judgment.

    Carl Oppedahl, Analysis and Suggestions Regarding NSI Domain Name Trademark Dispute Resolution Policy

    Betsy Rosenblatt, Excerpt from Sovereignty In Cyberspace: Ways of Preventing Cyberanarchy Discusses the personal jurisdiction in the context of the Internet, not merely in trademark disputes.

    Eric Schlacter, Domain Name Legal Bibliography
    A good collection of links on domain name issues.

    Robert Shaw, Internet Domain Names: Whose Domain Is This?, Kennedy School Presentation
    An interesting discussion of the lack of formal internet governance.

    Todd Spangler, NSI Centraal Team in Name Game. NSI, the gTLD domain name registrant, joins forces with Centraal in an effort to diversify its domain name business.

    William A. Tanenbaum, Rights and Remedies for Three Common Trademark-Domain Name Disputes: 1) Domain Name vs. Trademark, 2) Shared Trademarks and 3) Domain Name Hijacking, 505 PLI/Pat 253, January, 1998. Introduction to the topic of domain name disputes.

    Dan Tobias's site on domain names, with sources
    Links to resources concerning domain name disputes.

    U.S. Dept. of Commerce draft proposal for internet domain name governance
    Includes a request for comments and summaries of comments submitted.

    U.S. Patent Office policy on registering domain names as trade/service marks.


    Overiew of possible dispute categories

    White house White Paper that called upon the Internet industry to create this new non-profit entity that would manage DNS.

    General Trademark/Domain Name Resource

    The Domain Name Handbook Web Page  is a great source of information on domain name issues.  This site includes news updates, listings of disputes, links to legal proceedings, and information on meetings by organizations such as ICANN and WIPO.

    Summaries of cases related to domain names are maintained and updated at the Perkins Coie Internet Case Digest site.  The Phillips Nizer Web Site also maintains summaries of domain names cases.  To view these summaries, select "Internet Library" and choose "Domain Name/Path."

    For a useful introductory article, see Rights and Remedies for Three Common Trademark-Domain Name Disputes: 1) Domain Name vs. Trademark, 2) Shared Trademarks and 3) Domain Name Hijacking,  by William A. Tanenbaum, 505 PLI/Pat 253, January, 1998.

    Internet Corporation For Assigned Names and Numbers (ICANN)

    The transfer of management power to ICANN was, and remains today, quite controversial.  To initiate the process of privatization, the National Telecommunications and Information Administration (NTIA) of the United States Department of Commerce (DOC) issued a  White Paper that called upon the Internet industry to create the new non-profit entity to manage the DNS.  The end result is the contract between the U.S. government and ICANN authorizing the transfer of DNS management to the newly formed company.  The New York Times followed the process quite closely and published a number of useful articles.  To get a complete list of articles from the New York Times, conduct a search on their web page using the search term "ICANN."  Most of the articles summarize the process, so you should be able to get an adequate picture by reading one or two of them.

    Additionally, the following paper provides a general description of ICANN, the formation process and ICANN's responsibilities.

    The Internet Society maintains a page on "The White Paper and Domain Name Systems Information and Press Releases" that will keep you up-to-date on ICANN meetings, processes and decisions.

    ICANN also issues updates on the status of the Domain Name Supporting Organization process.

    ICANN provides the status of accreditation for new registrars who will enter into competition with NSI.  A list of accredited registrars is also available.

    World Intellectual Property Organization (WIPO)

    WIPO was the first Provider approved by ICANN to resolve domain name disputes under the UDRP.

    As a part of the transition of DNS management from the US government to ICANN, the government asked WIPO  to develop recommendations and guidelines for trademark domain name disputes.  WIPO issued its final report  with recommendations in April, 1999.  The report was used in conjunction with comments received from the public and suggestions by the gTLD registrars to form the UDRP that has been adopted by ICANN.

    The WIPO report has received extensive criticism in several areas.  For an introduction to the issues, see Professor A. Michael Froomkin's Quick Guide to Major Flaws in the WIPO Domain Name Proposal or this article by Jeri Clausing (a free subscription is required to view the article) in the cyber-New York Times.   For an excellent and extremely detailed critical analysis of the interim report, see Professor Froomkin's full analysis in A Critique of WIPO's RFC3.

    Additional comments Submitted to WIPO regarding RFC3 (Interim Report)

    NSI Dispute Resolution Policy

    Before the introduction of registrar competition and the development of the UDRP, trademark holders often started with NSI in an effort to resolve a domain name dispute.   As conflicts began to arise between trademarks and domain names, NSI developed its previous dispute resolution policy in an attempt to address these conflicts.  If the holder of a nationally-registered trademark found that an identical term had been registered by another party, it could send proof of trademark registration to NSI.  NSI would then put the domain name on hold unless the domain name holder could show that it  had a valid nationally-registered trademark or that it filed suit in court.  If a domain name was put on hold, users would not be able to access the web site using the domain name.  The NSI policy did not provide specific remedies, other than merely putting the domain name at issue on hold and off-limits by any party until the dispute was resolved by the parties involved by settlement or through litigation.  In actual practice, and under the policy's discretionary termination clause, NSI would entertain a request by the mark owner to transfer or cancel the domain registration if the domain holder failed to respond.

    The policy was ineffectual in many ways and thus led to the uncertainty and complexity of domain name disputes.  The policy was overbroad in that it allowed a trademark owner to put a domain name on hold if they have a trademark registration even if they could not prevail in a trademark infringement or dilution claim.  It was also underinclusive.  In order to invoke the policy, the mark had to be identical to the second level domain.  Under trademark law, use of a similar name can constitute infringement if there is likelihood of confusion.  The name need not be identical. So there were cases where there was infringement but the holder of the trademark couldn't use the policy to put the name on hold.

    For a critique of the policy see, Analysis and Suggestions Regarding NSI Domain Name Trademark Dispute Resolution Policy, by Carl Oppedahl.

    Lanham Act - U.S. Trademark Law

    One internet site containing the Lanham Act is maintained by the Legal Information Institute at Cornell Law School.    You can link to the full act or go directly to the sections on likelihood of confusion (Section 1114), dilution (Section 1125(c)), or unfair competition (Section 1125(a)).  The Cornell version has not yet been updated to reflect the anti-cybersquatting legislation.

    For additional information, clarification, or interpretation of trademark law, use the Primer materials (doctrinal summaries) in our library.

    For the legislative history of the new anti-cybersquatting legislation you must look at the legislative history of the prior bill H.R.3018 and not S.1908 (the bill actually enacted).  The legislative history is available in the Congressional Record via the Thomas web site.

    To see the legislative history of the Federal Trademark Dilution Act of 1995, go to the Thomas web page.  In the right hand column of the home page you will find an item entitled "Committee Reports."  Select the link under this for the 104th Congress (this is the Congress that passed the Act).  In the page that appears, you can search either by bill number (H.R. 1295) or by Report Number (H. Rept. 104-374).  Searching by Report number will take you directly to the Report by the House Judiciary Committee  - this report includes the text of the law as well as a statement regarding the purpose of the law.

    Keyword Systems

    Netscape's Keyword Systems (and other similar systems) are discussed in the following articles:

    "The Next Net Name Battle," Chris Oakes, Wired News, July, 1998
    "Netscape's Quiet Power Grab," Gus Venditto, InternetWorld, August, 1998.
    Explanations of how Keywords work
    Netscape FAQ
    Centraal's RealNames FAQ
    NSI, the gTLD domain name registrar, joins forces with Centraal in an effort to diversify its domain name business.

    Uniform Dispute Resolution Policy

    General ICANN page with UDRP resources


    The Jurisdiction Module at the conculsion of the Lecture and Discussion Series will provide in depth information on relevant jurisdiction issues.

    Privacy and Anonymity Concerns

    There is a tension between the need to allow some parties anonymity in order to protect their right to free speech and the need for trademark holders to be able to contact domain name owners in case of dispute.  In testimony before Congress, ICANN indicated that the registrar accreditation policy requires that accurate contact information be publicly available.  The registrar agreements require registrars to provide a Whois service with free public query-based access to up-to-date (updated daily) information.  The database is to contain the following elements:  name of SLD, expiration date of registration, name and postal address of the SLD holder, name, postal address, email address and voice phone number for technical contact, same for administrative contact.   There do not appear to be any provisions for agents to act as contacts for privacy purposes.

    A bill introduced in the Senate (S. 854) included a provision that would require registrars to allow domain name holders to opt out of providing contact details.  Although introduced in the Senate in April, 1999, there has been no further legislative action on this bill.   Congress did address contact information in the cybersquatting legislation, however, where it provided that intentional provision of misleading contact information is an element of bad faith.

    As yet there seem to be no court cases specifically addressing the issue.  In Columbia Insurance Company v., however, the court recognizes the benefit of protecting the privacy of innocent parties.  The court states that people who have committed no wrong should be able to participate online without fear of those who might wish to harass or embarrass them.  Here the unidentified defendant had registered to sell competing chocolates, but had provided incomplete and inaccurate contact information.  The court held that where a plaintiff can show that its suit will withstand a motion to dismiss, however, the plaintiff has the right to conduct discovery to uncover the identity of the party causing harm.

    Registering Domain Names as Trademarks in the US

    The US Patent and Trademark office has issued guidelines for registering domain names as trademarks.  In Examination Guide No. 2-99, the USPTO indicated that domain names will be treated much like ‘800’ numbers in applications for trademark status.     The gTLD as well as the beginning of the URL (http:// or www) will be treated as prefixes rather than source identifications.  Thus, the gTLD will be treated much like "Inc." is treated for "real space" trademarks.  For example, terms which cannot be registered under existing trademark law because they are generic terms would not gain registrable status by adding the gTLD.  Thus would not be registrable for a site that sells hats.

    Whether a domain name will be considered a trademark will depend largely on who is making the ultimate determination.  It is possible that in the Sixth Circuit a domain name owner would be required to prove that it is used in a capacity beyond mere addressing.   Other courts, however, have indicated that domain names almost always represent more than a mere communications tool and that these names have significant corporate value.   Under this conception, it would be easier to demonstrate that the domain name acts as more than a mere web site address.   A domain name does not merit trademark protection until it is used in a public manner that creates an association by the public with the mark's owner.  A domain name can be registered as a trademark if it is used as a trademark, but not if it is used merely as an address.   Similarly, web sites that serve only as advertisement for a company's products will not merit trademark status.  Use of the domain name or mark in a banner prominently displayed on the web page, however,  may be sufficient use of the mark.

    Registering A Domain Name

    To register a name in a gTLD, you can link to a list of accredited gTLD registrars through ICANN's web page.  Some gTLD registrars will also register names in certain ccTLDs, so if this is a goal, check the various web pages of the accredited registrars.  Smaller companies often register domain names through their ISPs and the ISP will then host it on their server. Some ISPs use form contracts that vest ownership of the domain name in the ISP if the ISP obtains the registration.  Companies should check for such language in the ISP contract to prevent any future disputes about ownership.

    Approximately  80 ccTLDs accept registrations from entities outside the country.   Within this group, some limit entities to one domain name per organization.  To determine whether your desired domain name is available in a ccTLD, one may use a service that will register names for you such as  For a fee, this service will register a domain name in all open ccTLDs. There are some services, such as, that allow you to check availability in ccTLDs for free.  Unfortunately, however, you have to check each ccTLD individually to see if your domain is available.

    Conducting Domain Name Searches

    Before choosing a domain name, and possibly before choosing a trademark or product name if one has not already been selected, an organization should conduct a worldwide domain name search to determine if there are any existing conflicts.  There are several services that will conduct a comprehensive search.

    Other Hyperlinks, and Sites that raise issues about general Top Level Domains.

    Procter & Gamble has registered an inordinate number of domain names for very general words.  Some of them are not in use - - but others - - lead to a general P&G portal site. (You may not be able to access the list of domains registered by Procter & Gamble because NSI recently took over the InterNIC site - including the WHOIS feature.  This takeover has been decried by NTIA and ICANN and so may be reversed, but the status is unclear at this point.  For details see NTIA, ICANN Frown Over NSI's InterNIC Takeover - March 24, 1999.)

    H.R. 2281 (WIPO Copyright Treaties Implementation Act) Pending legislation containing provisions restricting the ability to circumvent copy protection technology.

    S. 1121 (WIPO Copyright and Performances and Phonograms Treaty Implementation Act of 1997) Pending legislation containing provisions restricting the ability to circumvent copy protection technology.

    [back to top]

    F. Business Methods Patent Online

    [cases] [articles][other]

    Cases (by date)

    AMAZON.COM, INC., v. BARNESANDNOBLE.COM, INC., 1999 U.S. Dist. LEXIS 18660 (1999) - This court issued an injunction upholding's Internet patent.   [ Excerpt Only]

    AT&T CORP. v. EXCEL COMMUNICATIONS, INC., 172 F.3d 1352 (1999) -  In this post-State Street decision, the Federal Circuit reaffirmed its State Street decision stating specifically that "[i]n our recent decision in State Street, this court discarded the so-called "business method" exception and reassessed the "mathematical algorithm" exception."

    STATE STREET BANK & TRUST CO., v. SIGNATURE FINANCIAL GROUP, INC., 149 F.3d 1368 (1998) - The Federal Circuit case which is generally credited with laying the foundation for Internet patents.

    Articles (by author's name)

    Legal Protection for Software:  Does State Street  Mean "Easy Street" for Software Patents?,  by Russel O. Primeaux - This article summarizes how the court in State Street Bank dealt with what used to be the business method exception to patentability and how it narrowed the mathematical algorithm exception to patentability.    [ Abstract ]

    Patent Law Primer, by NEUSTEL LAW OFFICES, Ltd. - Thorough overview of patent law.  Section titles include: "Definition of Patent", "Patentable Subject Matter", "Who May File for Patent Protection?", and "Content of Patent Applications."

    Protection for Software Methods May Be "Big...Really Big", by J. JOHN SHIMAZAKI  -  This article focuses on the patent and addresses questions such as how the Priceline method works and whether the patent will hold.

    Frequently Asked Questions Concerning Patents - Good article covering general patent issues ranging from the nonobviousness and novelty requirements of patent law to who can apply for a patent.

    Scope-of-Protection Problems With Patents and Copyrights on Methods of Doing Business, by Richard H. Stern - This in-depth article focusing on the enhanced problem created in the business method context of "demarcating by workable criteria the legally protectable concrete and specific aspects of innovative contributions from the legally unprotectable abstract and general aspects of those contributions."  Note that this article considers both the copyright and the patent issues relating to methods of doing business. Since we have not covered the copyright issues relating to methods of doing business, this article is recommended for only those who are sufficiently comfortable with the intricacies of patent and copyright law.

    Internet Business Methods: What Role Does and Should Patent Law Play?, by: Jared Earl Grusd -  This law review note, published by the Virginia Journal of Law and Technology, provides a thorough discussion of the State Street case.  The note then provides an extensive discussion of the policy considerations of patent law and how they comport with what is going on with Internet patent.  The article also draws from the biotech patent context in suggesting that the courts have discretion under the nonobviousness and enablement requirements of patent law, to restrict business method patents.

    US Patent and Trademark Office General Information Concerning Patents - This resource, created by the American Bar Association, contains a vast amount of general information concerning the application for and granting of patents.  It is written in non-technical language given that its stated audience is inventors, prospective applicants for patents, and students.  In particular, the resource discusses the role of the Patent and Trademark Office, general conditions of patentability, and the parts of a patent.  Moreover, it contains an excellent discussion on the patent examination process.

    General Information Concerning Patents - Information on patents from the U.S. Patent and Trademark Office's Web site

    Priceline Patent Sparks Debate - A short older commentary on the situation.

    The Problem With Patents  - This article, by our very own Lawrence Lessig, highlights some of the fears surrounding Internet patents.

    Lawsuit Pits Patent on the Line  -  This article discusses's patent infringement lawsuit against Microsoft.

    Internet Sparks Patenting Controversy, by Richard Poynder -  This article, written by a British freelance journalist, discusses the Open Market and patents.  The article also includes commentary designed to summarize the changing European perspective on the issue.

    Strategic Concerns When Pursuing Foreign Patents In The Computer Arts - Everything you've ever wanted to know about filing for a patent in a foreign country.

    10 European Industry Leaders Raise Concerns About Software Patents, by EuroLinux Alliance -  Although the München Convention states that, in Europe, software per se is not patentable, the European Patent Office (EPO) has been granting patents for years that can be used to protect programming techniques.  This is true by virtue of the fact that the München Convention makes it possible to patent industrial inventions which are based on innovative programming techniques.  Such patents are sometimes referred to as "software patents",  even though they are not patents on software as such.  Similarly, as we've been discussing, the U.S. has begun issuing such patents under the rubric of business method patents.  This article contains opinions from mostly European software leaders on the use of the patent system to protect what would otherwise be a programming technique.


    General Materials:

    United States Patent and Trademark Office - Main Web site

    Patent Cooperation Treaty (PCT) Special Programs Office home page -  Web Site

    Manual of Patent Examining Procedure (MPEP), -   Online version of the entire manual.

    National Association of Patent Practioners -  Web site for this non-profit organization dedicated to supporting patent practitioners and those working in the field of patent law in matters relating to patent law, its practice, and technological advances.

    IBM Patent Server -  Web site containing a fully searchable patent database with a user friendly interface, maintained by IBM.

    International Materials:

    Basic Patent Cooperation Treaty (PCT) Principles - Section 1801 of the Manual of Patent Examining Procedure describes, in the words of the Patent and Trademark Office, the general principles behind the PCT.

    Basic Facts About the Patent Cooperation Treaty (PCT)  -  Information on the PCT from the U.S. Patent and Trademark Office's site

    Foreign Patent Filing - This small page summarizes the international and European filing processes.

    Japanese Patent Office -  Web Site

    European Patent Office - Web Site

    UK Patent Office - Web Site

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    [cases] [articles][other]

    Cases (by date)

     Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996)

     Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119 (W.D. Pa. 1997)

     Panavision International v. Toeppen, 141 F.3d 1316 (9th Cir. 1998)

     Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998)

     Mink v. AAAA Development LLC, 190 F.3d. 333 (5th Cir. 1999)

    Articles (by author's name)
     Robert C. Bordone, Notes: Electronic Online Dispute Resolution: A Systems Approach - Potential, Problems, and a Proposal, 3 Harv. Negotiation L. Rev. 175

     Alexander Gigante, Ice Patch on the Information Superhighway: Foreign Liability for Domestically Created Content, 14 Cardozo Arts & Ent. L.J. 523 (1996)

    Jack L. Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199 (Fall 1998).

    Learning Law in Cyberspace, by Jay Kesan, University of Illinois at Urbana-Champaign, College of Law

    Michael MacClary, Personal Jurisdiction and the Internet, 3 Suffolk J. Trial & App. Adv. 93, excerpted.


     Primer on Conflicts of Law and the Internet

    Online Ombuds Office (OOO)

    David Loundy, Virtual Magistrate becomes a reality, sort of.

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    Protection for Websites

    [cases] [articles][other]

    Cases (by date) v. Wall Street Interactive Media Corp. and Alphabit Media, Inc.  Complaint(Para. 12)

    Ahn v. Midway, 965 F.Supp.3d 1134 (N.D. Ill. 1997) Martial Arts expert and dancer were held to have created independently copyrightable coreography for the video game "Mortal Kombat" but not to have joint copyrights in the game. Joint Authorship issue was moot because the artists had signed "work for hire" contracts.

    Napoli v. Sears, Roebuck and Co., 874 F.Supp. 206 (N.D. Ill. 1995) Court held that rights in the design of a graphic user interface could create joint authorship in the work as a whole, together with the rights in the computer code itself. (vacated on unspecified grounds, 926 F.Supp.780 (N.D. Ill. 1996).

    Erickson v. Trinity Theatre, 13 F.3d 1061 (7th Cir. 1994) (1) to create joint work, each author must intend respective contributions to be contribution to unitary whole and (2) collaborators are not joint authors unless they intended to be joint authors when work was created and contributions to works are independently copyrightable.

    Childress v. Taylor, 945 F.2d 500 (2d Cir.1991) Actor asked playwrite to help create work based on research and ideas of actor. Actor revised play with another playwrite; original playwrite sued, claiming that she was joint author and therefore shared rights to play. Court found no joint authorship. This case stands for the propositions that, in order for a work to be "joint," (1) the contributions of each joint author must be independently copyrightable and (2) the authors must intend to create a joint work.

    Ashton-Tate v. Ross, 916 F.2d 516 (9th Cir. 1990). Joint authorship case: One software developer (claimant) sued another for unilaterally marketing spreadsheet program on which both had worked. Court found no joint authorship because the contribution of the claimant (a list of user commands) was not independently copyrightable and therefore not sufficiently significant.

    Articles (by author's name)

    Lisa M. Byerly, Look and Feel Protection of Web Site User Interfaces: Copyright or Trade Dress?.

    Margaret Chon, New Wine Bursting from Old Bottles: Collaborative Internet Art, Joint Works, and Entrepreneurship, 75 Or. L. Rev 257 (1996). Explores whether the current copyright system is sufficient to deal with the internet, especially the jointly-created artworks that are created on the internet.

    Rinaldo Del Gallo, Who Owns the Website?.

    Anne Hiaring, Multimedia Licensing, 490 PLI/Pat. 481 (September, 1997). Hypothetical case regarding the creation of a CD-Rom; Overview of Copyright, Trademark, Right of Publicity, and Contractual Ownership issues rasied by the creation of a multimedia product by many people.

    Laura G. Lape, A Narrow View of Creative Cooperation: The Current State of Joint Work Doctrine, 61 Alb. L. Rev. 43 (1997). Comprehensive discussion of current legal treatment of joint works, especially works created through internet transmission and contribution.

    Sandip. H. Patel, Graduate Students' Ownership and Attribution Rights in Intellectual Property, 71 Ind. L.J. 481 (Spring, 1996). Deals primarily with student intellectual ownership of theories and inventions developed while in school, comparing these ownership rights wit those of professors. Explores patent and copyright implications of student research, including work-for-hire and joint authorship theories.

    Student is Joint Author, Not Liable for Infringement Suit by Professor, 6 NO. 6 Mealey's Litig. Rep.: Intell. Prop. 5 (December 15, 1997). Graduate student and professor conducted a study and the student published a paper based on the results. Lawsuit ensued.

    William A. Tanenbaum, Intellectual Property Due Diligence for Online Services, Internet Web Site Development and International Conflict of Laws Analysis, PLI Order No. G4-3961 (September, 1996) Article explicating some of the special considerations that arise in the process of internet site development.

    Andrew J. Wu, Dealing with Copyright Aspects of Computer-Aided Authorship, 13 NO. 9 Computer L. Strategist 1 (January, 1997). Brief discussion of ownership in software-aided creations such as websites that use "canned" images.

    Betsy Rosenblatt, Joint Authorship Primer , Spring 1998.


    GIF images of the sites:;

    Actual websites:; Alphabit Media

    News coverage of the controversy: LJX (10/8/1998); CNET (10/5/1998); CNET (9/10/1998); if you can read Czech.

    Portal Sites: Lycos vs. Excite vs. Yahoo vs. Snap

    What is a portal?

    Graphic device: Salon vs. Fray; CNET (3/26/1997)



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    ISP Liability

    [cases] [legislative resources] [articles] [other]

    Cases (by date)

    Religious Technology Center v. Netcom (N.D. Cal. 1995) (order denying various pre-trial motions). Regarding whether Netcom could be held liable for materials posted by one of its clients which allegedly infringed copyrights held by the Church of Scientology.  The court decided three important issues.  First, Netcom could not be held directly liable for any infringing material posted by the client since Netcom itself did not upload the material.  In short, the direct infringer was the client who did the uploading, not the ISP that provided the tools to do so.  This part of the decision seemed to be flatly reject the line taken in Playboy.  Second, the court also decided that there wasn't enough of a link between the infringing activity and Netcom's finances to hold Netcom vicariously liable.  Third, although the court let Netcom off the hook for direct infringement and vicarious liability, the court refused to rule out the possibility that Netcom was liable for contributory infringement, leaving the question of whether Netcom encouraged the client to post infringing materials open for trial.  (No trial ever occured because the case settled).

    Sega Enters. Ltd. v. MAPHIA, 857 F. Supp. 679 (N.D. Cal. 1994). Operator directly solicited clients to upload Sega video games onto his system. Court held, (as in Playboy, that Bulletin board operators could be found liable regardless of whether or not the copying was intentional. Also, in both cases, the "actual" infringement was committed by the clients.

    Plaintiff's complaint in Frank Music Corp. v. Compuserve Inc., Civil Action No. 93 Civ. 8153 (JFK) (S.D.N.Y. 1993), eventually settled for $568,000 plus future royalties.

    Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 435 (1984). Copyright fair use and contributory infringement issues, regarding the use of home video recording systems.

    Legislative Resources Text of Digital Millenium Copyright Act, the conference report, and other portions of the legislative history. This page is maintained by the Home Recording Rights Coalition (HRRC), an advocacy group organized "to protect the right to use VCRs, audio recorders and computers for private, non-commercial purposes."

    Ronald G. Dunn, Information Industry Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997).

    Mike Kirk, American Intellectual Property Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997).

    Honorable Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997).

    Roy Neel, United States Telephone Association, H.R. 2281 and H.R. 2180 Hearings before House Courts and Intellectual Property Subcommittee (Sep.16, 1997).

    Articles (by author's name) see also off-line articles

    Fair Use in the Electronic Age

    Jonathan Band, The Digital Millenium Copyright Act. This memorandum discusses the DMCA and has a section devoted to the OCLLA.

    John P. Barlow, The Economy of Ideas, A Framework for Rethinking Patents and Copyrights in the Digital Age (Everything You Know About Intellectual Property is Wrong), WIRED, Mar. 1994, (comparing the Internet to the frontier west where the people made their own laws).

    John Perry Barlow, Selling Wine Without Bottles: The Economy of Mind on the Global Net, (arguing that traditional intellectual property law is poorly fitted to deal with the new realities of the internet.

    Marc L. Caden & Stephanie E. Lucas, Accidents On the Information Superhighway: On-Line Liability And Regulation, 2 Richmond J. of L. & Tech. issue 1 (1996). (focusing on prominent cases of ISP liability for electronic transmission as part of a general analysis of internet regulation)

    David J. Loundy, E-Law 2.0: Computer Information Systems Law and System : Operator Liability Revisited (discussing how ISP liability for on-line conduct of its clients resembles that of a press, publisher, common carrier, et cetera  --  see especially section IX., entitled "Liability for Computer Information System Content ").

    Mark C. Mccarthy, Censorship in Electronic Information (Sept. 25 1996) (arguing that vicarious liability of service providers encourages censorship).

    Charles J. Meyer, National and International Copyright Liability for Electronic System Operators, 2 Global Legal Studies J. no. 2. (examining the difficulties inherent in balancing the interests of ISPs and copyright holders)

    Kurt B. Opsahl, Freezing Rain on the Information Superhighway: Protecting Internet Service Providers from Vicarious Liability (Apr. 1, 1996) (Rough Draft) (arguing for the broad removal of liability from ISPs)

    David G. Post, Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace, 1995 J. Online L. art. 3. (explaining that the rules governing on-line behaviour will evolve over time on the internet in a free-market fashion, and will not simply be a restatement of laws that exist in the "real" world)

    Pamela Samuelson, Copyright, Digital Data, And Fair Use In Digital Networked Environments (1994) (see particularly the section on "Technological and Contractual Means For Overcoming Digital Replicability").

    Off-line articles

    William J. Cook, Be Wary of Internet Casting Shadows on Copyright Holders, Chicago Law., Apr. 1996, at 60 (restating testimony given before the U.S. House Judiciary Committee).

    Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 Cardozo Arts & Ent. L.J. 345 (1995) (arguing that the imposition of copyright liability on ISPs threatens the "democratization" of the Internet and stimulates undersireable centralized control of content on the Internet

    Joan Gilsdorf, Comment, Copyright Liability Of On-Line Service Providers, 66 U. Cin. L. Rev. 619 (1998) (note that this Comment preceded the passage of the DMCA). This Comment examines the scope of OSP liability, pre DMCA, in light of recent court decisions and recommendations made by the Clinton administration's Working Group on Intellectual Property Rights

    Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 Colum. L. Rev. 1466 (1995) (noting that authors will need assurances that their works will be protected on the Internet, and that with such assurances the Internet could provide entirely novel forms of artistic creation)

    David Halbreich et al., Intellectual Property on the Internet: Surfing Through Liability and Coverage Issues, Mealey's Litig. Rep.: Emerging Ins. Disputes, Nov. 14, 1996

    I. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. Pitt. L. Rev. 993, 1002-08 (1994) (characterizing the problem of ISP liability for copyright infringement as one for which "real waorld" analogies fall short)

    Bruce A. Lehman (Chair), Intellectual Property and the National Information Infrastructure, The Report of the Working Group on Intellectual Property Rights 115 (1995) (The "White Paper").

    David J. Loundy, E-Law: Legal Issues Affecting Computer Information Systems and System Operator Liability, 3 Alb. L.J. Sci. & Tech. 79 (1993).

    Raymond T. Nimmer & Patricia Ann Krauthaus, Copyright on the Information Superhighway: Requiem for a Middleweight, 6 Stan. L. & Pol'y Rev. 25 (1994) (arguing that internet users and content providers need a property concept beyond copyright -- they need a property right whose limitations address the ability to control access to information resources on-line)

    Other, maintained by the Digital Future Coalition, provides background materials on the history of the On-Line Copyright Liability Limitation Act, which started life as a separate piece of legislation but was eventually folded into the DMCA.

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