Vol 7 No 1 - Roger Williams University School of Law

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even by the plaintiffs today.86The plaintiffs were also unsuccessful on the issue of “limitedTimes.” The court explained that, at widest, if “Congress were[sic] to make copyright protection permanent, then it surely wouldexceed the power conferred upon it by the Copyright Clause.”87 Itwent on to dispose of the argument at hand by saying:The present plaintiffs want a limit well short of the ruleagainst perpetuities, of course. And they claim to havefound it—or at least a bar to extending the life of asubsisting copyright—in the preamble of the CopyrightClause: “The Congress shall have power . . . To promotethe Progress of Science and useful Arts . . . .” Their ideais that the phrase “limited Times” should be interpretednot literally but rather as reaching only as far as isjustified by the preambular statement of purpose: If 50years are enough to “promote . . . Progress,” then a grantof 70 years is unconstitutional. Here the plaintiffs runsquarely up against our holding in Schnapper v. Foley, inwhich we rejected the argument “that the introductorylanguage of the Copyright Clause constitutes a limit oncongressional power.” The plaintiffs, however, disclaimany purpose to question the holding of Schnapper; indeed,they expressly acknowledge “that the preamble of theCopyright Clause is not a substantive limit on Congress’legislative power.” Their argument is simply that “theSupreme Court has interpreted the terms ‘Authors’ and‘Writings’ in light of that preamble, and that this Courtshould do the same with ‘limited Times.’”The problems with this argument are manifest. First,one cannot concede that the preamble “is not asubstantive limit” and yet maintain that it limits thepermissible duration of a copyright more strictly thandoes the textual requirement that it be for a “limitedTime.” Second, although the plaintiffs claim that Feistsupports using the preamble to interpret the rest of theClause, the Court in Feist never so much as mentions thepreamble, let alone suggests that the preamble informs86. Id. at 376-77.87. Id. at 377.
its interpretation of the substantive grant of power to theCongress (which there turned upon the meaning of“Authors” and of “Writings,” each standing alone).Similarly, the Trade-Mark Cases cited in Feist rest uponthe originality implied by “invention [and] discovery” andby the “writings of authors,” and make no reference at allto the preamble.88Such reasoning goes close to conflicting with the followingstatement of the Supreme Court in Graham v. John Deere Co.89“The Congress in the exercise of the patent power may notoverreach the restraints imposed by the stated constitutionalpurpose. Nor may it enlarge the patent monopoly without regardto the innovation, advancement or social benefit gainedthereby.”90 It also goes close to conflicting with the followingpassage from Morton Salt Co. v. G.S. Suppiger Co.:91The grant to the inventor of the special privilege of apatent monopoly carries out a public policy adopted bythe Constitution and laws of the United States, “topromote the Progress of Science and useful Arts, bysecuring for limited Times to . . . Inventors the exclusiveRight . . .” to their “new and useful” inventions. UnitedStates Constitution. But the public policy which includesinventions within the granted monopoly excludes from itall that is not embraced in the invention. It equallyforbids the use of the patent to secure an exclusive rightor limited monopoly not granted by the Patent Office andwhich it is contrary to public policy to grant.92In United States v. Moghadam,93 a case concerning theconstitutional validity of the anti-bootlegging statute (consideredin more depth below), the court made note of the apparentperpetual duration of the intellectual property rights grantedunder the statute:We note that there is another limitation in the CopyrightClause that may be implicated by the anti-bootlegging88. Id. at 377-78 (citation omitted).89. 383 U.S. 1 (1966).90. Id. at 5-6.91. 314 U.S. 488 (1942).92. Id. at 492 (citations omitted).93. 175 F.3d 1269 (11th Cir. 2000).
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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Page 40 and 41: that were made after the initial te
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Page 46 and 47: the Paris Convention for the Protec
Page 48 and 49: directly or indirectly.159 In other
Page 50 and 51: of resources that qualifies that po
Page 52 and 53: wish to encourage private lawsuits,
Page 54 and 55: contract.”185 While section 1405(
Page 56 and 57: The Directive will inevitably drive
Page 58 and 59: the process through which digital p
Page 60 and 61: the United States or the trade and
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Page 70 and 71: of intellectual property rights mus
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Page 76 and 77: eproduced, though there be no ingen
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Page 82 and 83: Because, in part of the joint reaso
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Page 112 and 113: motivating force.While antitrust or
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Page 122 and 123: In response to Intel’s argument t
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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