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A Quickly Changing Tide

intellectual property law struggles to stay current

illustrationIllustration by Paul Zwolak

Twenty years ago, an academic conference on intellectual property law might have dealt with mechanical inventions or books and periodicals, topics barely mentioned at an IP law symposium held at the Law School last October.

Nowadays cutting-edge IP law is mostly about the internet and other digital technologies. As technologies proliferate, so do lawsuits (think of Napster, the late music-sharing website, sued out of existence by the recording industry). So also do unsettled questions of law, along with lawyers paid to litigate them and law professors paid to think about them.

Several dozen law professors and a handful of practicing IP lawyers from all over the country hashed out some of these questions at the October conference. The average age in the room was somewhere in the mid-to-upper thirties, with some dauntingly learned presentations coming from scholars who may not have been out of their twenties. This fact is explained by IP's recent growth, according to Professor Joseph Liu, who organized the conference with his colleague Alfred Yen.

New Trends Emerge
In the symposium's first paper, University of Pittsburgh Professor Michael Madison discussed the varied legal bases for Internet-related litigation. Initially, he said, much e-commerce depended on "click-through agreements," in which a mouse click serves as an e-signature, signaling assent to a on-screen "contract." The problem with such contracts, Madison argued, is that few people actually read them before clicking, and courts have been increasingly skeptical of them. More recently, he said, two statutes and numerous tort cases have used the common-law notion of "trespass to chattels" to keep unwanted visitors, including business competitors, from downloading data from a website.

Another trend in web law was pointed out by Harvard's Jonathan Zittrain, who spoke about the years-long push to rid the Internet of unlawful content: viruses, gambling sites, libels, and so on. Early efforts targeted the illegal content's sources, but these are often overseas and thus beyond the reach of US law. Next, law enforcers targeted the sources' Internet service providers (ISPs), but these can also be overseas; anyway, courts have recently found that ISPs, like phone companies, aren't liable for content they transmit.

Now authorities are targeting "destination ISPs" instead of "source ISPs," and with more success. A recently enacted Pennsylvania law, for instance, allows the state to get injunctions directing ISPs to filter out a website if it purveys kiddie porn, thus preventing users from accessing the site. This approach, Zittrain argued, will work better than the earlier ones, although it raises jurisdictional issues (at least until better filters are devised, content blocked out by an ISP affects its users worldwide, not just in Pennsylvania) and questions about prior restraint of speech.

Yet another fascinating IP trend, identified by Stacey Dogan of Northeastern University, involves the use of images, digital and other. Dogan spoke on the "right of publicity"-celebrities' right to profit from any use of their image or voice. This right, which dates to the 1950s, originally pertained to recordings or photographs of the celebrity, but increasingly courts have been willing to listen to arguments about images that just "evoke," or bring to mind, the celebrity. In 1992, for instance, Vanna White won a suit against an electronics firm that ran a TV ad featuring a female-looking robot turning letters on a Wheel of Fortune stage set, one of a number of similar lawsuits since the middle 1970s. Dogan argued that the right to publicity, thus expanded, encroaches on free speech and artistic expression and that courts should rule more narrowly in this area.

The Consumer Factor
What proved to be the symposium's most controversial paper was described by Liu, its author, as "exploratory" and "tentative," a fair description by most standards. Liu critiqued IP law for the overly passive picture it draws of the "copyright consumer," the audience for creative works. Liu identified several "active" consumer interests, among them "sharing" works with friends and "creative self-expression" (for example, lifting copyrighted files into a personal website) that have come to the fore in the digital world but are largely ignored in current law. The Internet, Liu said, increases our ability to share works with others far beyond what was possible with media like books and phonograph records. Of course, much web-based sharing-think of Napster again-and some forms of digital self-expression have been deemed impermissible by the courts. While admitting that the market may come to accommodate these active interests, Liu doubted it and urged Congress and the courts to become more "attuned" to the copyright consumer.

Responding to Liu's paper, Mitch Singer, in-house counsel at Sony Pictures, said, "In the name of protecting little Susie's right to create a multimedia book report, they vitiate the whole system of copyright protection." He then pointed to the history of file-sharing websites, Napster and its progeny, saying in a tone of disbelief that as recently as 1999, "we were actually debating whether Napster encouraged CD purchases." In fact, he said, CD sales dropped five percent in 2000 and ten percent in 2001. "As a producer of motion pictures," he said, " I have to assume my industry isn't far behind." Only time will tell, of course, but at the rate the IP scene is changing these days, it probably won't take much time.

--David Reich

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