Vol 7 No 1 - Roger Williams University School of Law

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elationship of power between the Commonwealth Parliament andthe people in legislating intellectual property rights is notabsolute.112 In their silence on this issue, the majority raisesconcerns and uncertainty as to the limits of intellectual propertyrights in the information age.113 We must be mindful that in anera when information is a core economic and cultural resource, itis vital as democratic principle that the legal process ofcommodifying information through intellectual property law beclearly defined and understood.D. Fixed in a Tangible Medium?A hallmark of copyright and patent law is that the intellectualknowledge must be embodied, manifested or fixed in a tangiblemedium. A recent Australian report by the Copyright LawReform Commission suggests that in the realm of copyright lawthe whole notion of fixation in a tangible medium is redundant inthe digital age and should be removed or at least reconceptualisedas a criterion for copyright protection.114While there is no express requirement for fixation in atangible medium in the Australian or Canadian Constitutions, theword “writings” in the United States clause implies some notion offixation. The issue was raised but not finally resolved inMoghadam. That case concerned the constitutional validity of ananti-bootlegging statute115 criminalizing the unauthorizedrecording, transmission to the public, and sale or distribution of or112. See generally Brian F. Fitzgerald, Proportionality and AustralianConstitutionalism, 12 U. Tas. L. Rev. 263 (1993) (discussing the notion of sovereignty inAustralian constitutional law).113. See, e.g., Carl Shapiro & Hal R. Varian, Information Rules: A Strategic Guideto the Network Economy (1999); Benkler, supra note 10; Felix S. Cohen,Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 814-17(1935); Rochelle C. Dreyfuss, We Are Symbols and Inhabit Symbols, So Should We BePaying Rent? Deconstructing the Lanham Act and Rights of Publicity, 20 Colum.-VLAJ. L. & Arts 123 (1996); Rochelle C. Dreyfuss, Expressive Genericity: Trademarks asLanguage in the Pepsi Generation, 65 Notre Dame L. Rev. 397 (1989); Brian F.Fitzgerald, Conceptualising the Digital Environment, in Going Digital 2000: LegalIssues for E-Commerce Software and the Internet 1 (Anne Fitzgerald et al. eds., 2d ed.2000); Michael A. Heller, The Tragedy of the Anticommons: Property in the TransitionFrom Marx to Markets, 111 Harv. L. Rev. 621 (1998); David Lange, Recognising ThePublic Domain, 44 Law & Contemp. Probs. 147 (1981); Ejan Mackaay, The Economicsof Emergent Property Rights on the Internet, in The Future of Copyright in a DigitalEnvironment 13 (P. Bernt Hugenholtz ed. 1996).114. Copyright Law Review Committee, supra note 60, at paras. 5.48-.53.115. 18 U.S.C. § 2319A (1994 & Supp. V 1999).
traffic in unauthorized recordings of live musical performances.116Moghadam was convicted of violating the statute after he pleadedguilty to knowingly distributing, selling, and trafficking in bootleg(unauthorized) compacts discs featuring live musicalperformances by recording artists including Tori Amos and theBeastie Boys. Moghadam then sought to challenge theconstitutional validity of the statute arguing it did not fall withinany of the federal legislative powers enumerated in Article I,Section 8, Clause 8 of the Constitution.117 The governmentresponded that it was constitutional under either the CopyrightClause or the Commerce Clause.118 The anti-bootlegging statute,which was enacted as a consequence of and in implementation ofthe TRIPS agreement provides in 18 U.S.C. section 2319A that:(a) Whoever, without the consent of the performer orperformers involved, knowingly and for purposes ofcommercial advantage or private financial gain–(1)fixes the sound or sounds and images of a live musicalperformance in a copy or phonorecord, or reproducescopies or phonorecords of such a performance from anunauthorized fixation;(2)transmits or otherwise communicates to the public thesounds or sounds and images of a live musicalperformance; or(3)distributes or offers to distribute, sells or offers to sell,rents or offers to rent, or traffics in any copy orphonorecord fixed as described in paragraph (1),regardless of whether the fixations occurred in the UnitedStates;shall be imprisoned . . . or fined . . . or both . . . .119The Act also contains a similar provision establishing civil liabilityfor the same conduct but omitting the commercial advantage orprivate financial gain requirement.120 There is little legislative116. Moghadam,175 F.3d at 1271.117. Id.118. Id.119. Id. at 1272.120. See 17 U.S.C. § 1101 (1994).
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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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The compilation of a database requi
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management information, including c
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one congressional witness noted:
Page 40 and 41: that were made after the initial te
Page 42 and 43: preferred language of many business
Page 44 and 45: the sui generis right mainly serves
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
Page 62 and 63: patent law is the utilitarian ethic
Page 64 and 65: a work to be publicly identified as
Page 66 and 67: the United States, the power of the
Page 68 and 69: Theory one proposes to reward the a
Page 70 and 71: of intellectual property rights mus
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Page 74 and 75: emedies set forth in section 1406.T
Page 76 and 77: eproduced, though there be no ingen
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Page 80 and 81: with respect to “patents of inven
Page 82 and 83: Because, in part of the joint reaso
Page 84 and 85: even by the plaintiffs today.86The
Page 86 and 87: statute: the “Limited Times” re
Page 88 and 89: head of power. It is not clear whet
Page 92 and 93: history dealing with either provisi
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Page 110 and 111: that a monopolist should not seek t
Page 112 and 113: motivating force.While antitrust or
Page 114 and 115: unjustifiable anti-competitive cond
Page 116 and 117: his refusal to sell or license his
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Page 120 and 121: the information age there have been
Page 122 and 123: In response to Intel’s argument t
Page 124 and 125: Court of First Instance in concludi
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Page 128 and 129: as a digital property owner, which
Page 130 and 131: anti-competitive use of monopoly po
Page 132 and 133: certain circumstances, exempted fro
Page 134 and 135: for circumventing a technological p
Page 136 and 137: DMCA creates an exclusive right in
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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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