Introduction
Up to this point, we have covered a variety of specific topics within Intellectual Property. It is now useful, in our final module, to take a step back and discuss the protection intellectual property law as a whole affords for websites. Websites often involve a variety of media (text, sound, graphics, databases, etc.), and are thus covered by a number of different areas of intellectual property law. Read through the following hypothetical and consider the various claims the authors of the project might raise.
[top]

Case Study

Two months ago, several students and one professor came together with the common goal of creating an online course to introduce students of all types to the fundamentals of intellectual property in cyberspace. The team was supported in this venture by the Berkman Center for Internet & Society, of the Harvard Law School; the Berkman Center provided the necessary funding for the work. No formal agreements were made amongst the team. In fact, none of the parties were even sure if they were to be paid for their work.

Nonetheless, work got underway. Each of the students, under the guidance of Prof. Fisher, created a particular module for the course. Beyond that specific duty, each member of the team worked extensively on the course as a whole -- each was responsible for a good deal of proofing, commentary, etc. The finished product represented an amalgamation of the efforts of the entire team. Some of the content was created entirely by one student or another. Some was created by a web designer and a programming wiz employed by the Berkman Center. Some was created by the combined effort of several students (e.g. one wrote, the other heavily edited). Some was reused from a previous course, which involved another, entirely separate team.

The course proved to be a smashing success. At the end of the course, a number of participants indicated that they might pay for such an experience in the future, either on the same subject, as a refresher, or on new subjects, presented in a similar format. For instance, several law firms indicated that these courses represented a cost-effective method of introducing their attorneys to new subject matter.

One student, David Melaugh, decided to set out on his own, and produce a comparable course to meet this demand. First, David examined his browser's cache on his hard drive, and found much of the content of the course's website stored there; he then downloaded any missing files. After a good deal of editing, David produced a website he felt was superior in both design and content. David decided to name the site "Beckman Center for Cyberlearning," after his grandfather, John Beckman Melaugh. Some of the Cyberlearning content is paraphrased, some is entirely new, and a small amount remains a direct copy of the original site. The organizational structure is nearly identical to the old site; the color scheme is the same, the navigation buttons are the same, and the course is again divided into modules. None of the graphics used are exact copies, but most are similar in some way.

The first six modules have themes similar to those presented in the original course. David also added a seventh module, "Pornography and the Internet." This module addresses the role pornography has played in shaping the development of the Internet and public reaction to the new medium. Topics such as filtering and the Communications Decency Act are addressed; more controversially, the module also contains links to a variety of hard-core, sexually-explicit sites, as well as several sexually-explicit images.

Hoping to add some legitimacy to his new course, David assured potential registrants that the course was "Based on the work of Professor William Fisher III, renowned Harvard Law School intellectual-property expert," and provided Prof. Fisher's photo, linked to his bio. David also identified himself as an teaching fellow employed by Prof. Fisher and the Harvard Law School.

[top]

Required Readings

First, make sure you understand the basics (also look through the resources for more primer material, if necessary). Spend some time going through the material on this website, reviewing the rudiments of copyright, trademark, patent, and other intellectual property doctrines.

Then, consider the following questions -- if you cannot answer them readily, follow the links provided. The links will direct you toward general resources on the topic; they will not take you specifically to an answer. These questions are meant to be a representative sample, not a complete accounting of intellectual property law.

Finally, read through the remaining material in this section in detail (any links in italics should be considered optional reading, however):

The nature of website authoring necessarily involves a variety of media, and thus implicates many separate intellectual property concerns. Read Website Legal Issues, available on BitLaw, covering a range of concerns faced by website authors.


Celebrities have some right to control the use of their name and likeness. Several elements of the Internet make it likely that violations of this right will be more common online (there are even services which will track down infringers for you). First, the Internet has placed the power to publish in the hands of a remarkable cross section of society. It comes as no surprise that many websites reflect popular culture in one fashion or another; the prevalence of "fan" sites is just one indicator. Most of these "amateur" authors have little experience with intellectual property law. Second, and related, given the sheer number of websites -- particularly commercial websites -- identification with some icon becomes all the more valuable (though as yet, there are no search engines sponsored by Mr. Jordon). Third, the malleability of digital information makes it all the more tempting to exercise creative license with a celebrity's identity (see also Actress Wins Nude Photo Battle).

Read The Right of Publicity on the Internet (I, II, IV, V required, III optional) discussing the remedies available to celebrities whose identities are used online. You might also examine a summary of rights of publicity, by state. What about virtual actors? When should these be found to infringe on the real actors upon which they are based? Should the virtual actors, themselves, deserve any publicity rights protection?


In recent years, there have been a growing number of disputes involving "look and feel" or "trade dress." Given the ease of accessing the basic structural components of a website, it is no surprise that web authors, too, get into disputes concerning websites with similar designs. One such dispute involved the following two websites: Salon and Fray. Examine both sites, then read Web Sites Fued Over Design, a news article about the dispute between the authors. Has anything untoward gone on here? If so, is there a legal remedy? Should there be?


Read through Prof. Charlie Nesson's narration of the beginnings of the Berkman Center and the Cybercourses (this course's ancestors). In particular, Prof. Nesson notes a point at which "all work on the site stopped": precisely the point at which the various actors involved began to think about intellectual property rights. Must intellectual property necessarily be such a damper on creativity and enterprise? How can we restructure intellectual property rights to account for a new, digital reality that allows for multiple authors to easily commingle their efforts?

[top]

Assignment

First, reread the problem.

You know David from California, where you grew up together. He has approached you for advice concerning his intention to offer a competing version of the cybercourses. You have told him he should consult an intellectual property lawyer. David agreed, but would like your opinion nonetheless, given that you have taken the course. Write David a letter, of approximately 500 words, explaining the objections various parties might raise to his plans and how he might defend against them.

[top]

Discussion Topics
[ additional topics to think about and discuss on the threaded discussion]

1: Browser Cache

The technical realities of the Internet make it necessary to commit some form of literal copyright violation if any sort of communication is to take place. For instance, in viewing this webpage, a series of routers have made copies of the material, the memory of your computer has made a copy, and, likely, your browser has stored a copy in its cache. Each might be said to violate any copyright which exists in this material. Does this conception of "necessary" copyright violation change our general conception of copyright? If these necessary violations are excused, can other infringements squeeze through that loophole? For instance, as was suggested by the hypothetical, what would be the legal status of a hyperlink to a browser's cache? Technically, no unexcused "reproduction" has occurred. Similarly, "inline links" create no literal copy of the material on the alleged infringer's computer.
 
 

2: Look & Feel

TheStreet.com (site; GIF) is a prominent investment website, complete with stock ticker, investment news, and commentary. WallStreetSex.com (site is defunct; GIF) is a website offering pornographic images to subscribers; mixed in with the images is financial information and resources. As you can see from the pictures, wallstreetsex.com incorporates a number of the elements found on thestreet.com. In fact, the logo, layout, and features closely resemble those found on thestreet.com. Originally, wallstreetsex.com was appropriating the stock ticker found at the bottom of thestreet.com. After thestreet.com sent wallstreetsex.com a cease and desist letter, the ticker was removed, but the remainder of the site remained. Thestreet.com filed suit, arguing primarily that wallstreetsex.com copied the look & feel (color scheme, fonts, etc.) of its site. Thestreet.com also named wallstreetsex.com's ISP, Alphabit Media.

Study the images, skim the complaint (read Paragraph 12 in detail, though) and news coverage (LJX: 10/8/98; CNET: 10/5/98; CNET: 9/10/98. To what extent should the "look and feel" or "trade dress" of a website be protected? In what ways, if any, has wallstreetsex.com infringed upon thestreet.com's intellectual property rights?

[top]

Resources
[further reading, should you wish to explore a particular topic]

General

Copyright

Trademark, Trade Dress

Patent

Joint Authorship

Miscellaneous

[top]

Special Events

At the present time, there are no special events scheduled for this module.

[top]