Cyberlaw: Intellectual Property in the Digital Millennium

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Jay Dratler, Jr., Stephen McJohn

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For nearly three hundred years, copyright laws have targeted those who illegally copy protected works. Today the legal framework also takes aim at those who defeat protective technologies. Cyberlaw: Intellectual Property in the Digital Millennium is the definitive guide to the revolution in copyright law brought about by the need to protect against piracy and unauthorized copying on the Internet.

This newly updated law book explains the anti-circumvention and anti-trafficking rules of the Digital Millennium Copyright Act (DMCA), the Act's provisions for protecting copyright management information (CMI), and its attempts to reduce Internet service providers' exposure to primary and secondary liability for copyright infringement. It parses the anti-trafficking rules and discusses in detail how several courts have failed to apply the rules correctly to complex technologies. It also explains how these rules derived from the emerging “federal common law” of copyright and how the still-developing federal common law may make resort to these rules unnecessary.

Cyberlaw: Intellectual Property in the Digital Millennium analyzes how the common-law rules of secondary liability for copyright infringement, as affected by the Supreme Court's Grokster decision, work in the context of the Internet, and how statutory overlays have complicated their operation. Finally, the book discusses the background and origins of—and the treaties underlying—the Digital Millennium Copyright Act, and its substantive provisions, including the special subpoena power, the special cause of action for fraud relating to infringement notification, and their relationship to state and other federal law.

Cyberlaw: Intellectual Property in the Digital Millennium explores not only the rules, but also their intricate exceptions and the distinct civil causes of action and criminal sanctions for violating them. It clarifies the complex rules governing copy-control technologies, including the gray areas, and explores possible challenges to the law under the First Amendment, the Due Process Clause, and the Patent and Copyright Clause. Emerging case law in the field of copyright and Internet law is incorporated throughout.

Book #00652; looseleaf, one volume, 1,214 pages; published in 2000, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-089-0

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 1214
  • ISBN: 978-1-58852-089-0
  • Pub#/SKU#: 652
  • Volume(s): 1

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  • Jay Dratler, Jr.

Professor Jay Dratler, Jr. brings to this book the unique perspective of a scientist, engineer, lawyer and law professor. After receiving his doctorate degree in physics from the University of California in San Diego in 1971, he spent four years working as a scientist and engineer. His work included eighteen months managing the electronics laboratory of a start-up, high-technology company.

Professor Dratler completed his legal education at Harvard Law School, where he graduated magna cum laude in 1978 after serving as Articles Editor of the Harvard Law Review. He practiced law for more than eight years, first with Morrison & Foerster in San Francisco, then in Californias Silicon Valley with Fenwick, Davis & West (now Fenwick & West). In 2010, Dr. Dratler retired as the Goodyear Professor of Intellectual Property, Emeritus at the University of Akron School of Law, in Akron, Ohio. There he taught Computer Law, Copyright, Cyberlaw, Introduction to Intellectual Property, Licensing and Trade Secrets, and Patent Law and Policy.

He is the principal author (with Professor Stephen McJohn) of a four-volume treatise on intellectual property, a one-volume treatise on cyberlaw and a two-volume treatise on licensing. Professor Dratler still teaches special courses in the US and Australia, consults on IP licensing and strategy and is a member of the American Bar Association, the American Intellectual Property Law Association and the American Law Institute.

Also by Jay Dratler, Jr.:
Licensing of Intellectual Property
Intellectual Property Law: Commercial, Creative and Industrial Property

Author Image
  • Stephen McJohn
Professor Stephen McJohn is a professor at Suffolk University Law School in Boston, Massachusetts where he teaches in the areas of intellectual property and commercial law. His scholarly interests lie in areas touching on law and technology, such as intellectual property, computer law, artificial intelligence and legal reasoning, and economic analysis. Professor McJohn received his B.A. in Computer Studies and his J.D., magna cum laude, from Northwestern University. After studying law in Germany and completing a federal appellate clerkship, he practiced law in the Chicago office of Latham and Watkins and taught at the IIT Chicago-Kent School of Law.

Also by Stephen McJohn:
Licensing of Intellectual Property
Intellectual Property Law: Commercial, Creative and Industrial Property

Introduction: New Law for New Technology

§ 1.01 “Cyberspace Law:” A Premature Baby?
§ 1.02 The Digital Millennium Copyright Act: A New Departure
[1] The Deficiencies in Copyright Enforcement Addressed by the Millennium Act
[2] The Justification for Focusing on Protective Technologies
[3] The Dangers of Focusing on Protective Technologies

Legal Reinforcement of Technological Measures for Protecting Copyrighted Works: The Anti-Circumvention Rule and the Anti-Trafficking Rules

§ 2.01 Introduction
§ 2.02 Implementing the Two WIPO Treaties: Practical and Policy Risks
§ 2.03 The Millennium Act’s Rules: Classification and Terminology
§ 2.04 The Anti-Circumvention Rule
[1] Strength of the Rule
[2] Delayed Effective Date
[3] Regulatory Exemptions of the Librarian of Congress
§ 2.05 The Anti-Trafficking Rules
[1] The Seven Elements of a Civil Trafficking Offense
[2] The Distinction Between Access Controls Under Subsection (a)(2) and Use Controls Under Subsection (b)
[3] The Three Conditions, (A), (B) and (C), Relating to Trafficking
[4] The Practical Effect of the Anti-Trafficking Rules on Users of Copyrighted Works
§ 2.06 The Distinction Between Anti-Circumvention and Anti-Trafficking Rules
§ 2.07 Section 1201 and Fair Use
[1] Section 1201: Not Copyright Law
[2] Does Section 1201 Incorporate Principles of Fair Use?
§ 2.08 Limitations and Exceptions: An Overview
§ 2.09 Mandates for Specific Control Technologies
§ 2.10 Constitutional Analysis
[1] A Constitutional Overview
[2] The Effect of the Anti-Circumvention and Anti-Trafficking Rules on Balance in Copyright Law
[3] Section 1201 and the First Amendment

Exceptions to the Anti-Circumvention Rule and the Anti-Trafficking Rules

§ 3.01 Introduction
§ 3.02 Drafting of the Exceptions
§ 3.03 Exceptions Addressing Noncopyright Policy Goals
[1] Bona Fide Encryption Research
[2] Law Enforcement and Intelligence Activities
[3] Security Testing of Computers, Systems and Networks
[4] Countermeasures Solely to Protect Individuals’ Privacy
[5] Protection of Minors
§ 3.04 Exceptions to Preserve Copyright Exemptions
[1] Introduction
[2] Reverse Engineering for Computer-Program Inoperability
[3] Exemption for Nonprofit Libraries, Archives, and Educational Institutions

Chapter 4
Prohibitions Against Providing False Copyright Management Infomrationa and Removing or Altering Copyright Management Information

§ 4.01 Introduction
§ 4.02 What Copyright Management Information Is
[1] Exclusion of Personally Identifying Information
[2] Association of CMI with Copyrighted Works
[3] The Legal Effect of the Use of CMI and Its Association with Copyrighted Works
[4] Limits on the Scope of CMI
§ 4.03 The Copyright Management Information Offenses
[1] Disseminating False Copyright Management Information
[2] Removing or Altering Copyright Management Information
[3] The Dissemination Offenses
§ 4.04 State of Mind Requirements
[1] The “Providing False CMI” Offense
[2] The Removing-or-Altering Offense
[3] The Dissemination Offenses
[4] The Additional “It Will” Element
§ 4.05 Exceptions and Limitations
[1] Law Enforcement and Intelligence Exemption
[2] Technical Feasibility Exemption
[3] Accepted Standards Exceptions

Civil Liability for Violations of the Anti-Circumvention, Anti-Trafficking, and Copyright Management Information Rules

§ 5.01 Introduction
§ 5.02 Standing to Claim Relief
[1] Copyright Owners and Exclusive Licensees
[2] Beneficial Owners of Copyright
[3] Nonexclusive Licensees
[4] Practical Problems: Joinder of Parties and Multiple Recoveries
§ 5.03 Monetary Remedies
[1] Damages
[2] The Violator’s Profits
[3] Statutory Damages
[4] Reduction or Remission of Damages
[5] Discretionary Recovery of Attorneys’ Fees and Costs
[6] How Courts Should Exercise Their Discretion
§ 5.04 Nonmonetary Remedies
§ 5.05 Criminal Sanctions
[1] Overview
[2] The Requirement for Mens Rea
[3] Exceptions and Limitations

The Federal Common Law of Direct and Secondary Liability for Copyright Infringement

§ 5A.01 Introduction: How the Federal Common Law Lives, and Why It Is Important
§ 5A.02 Service Providers’ Direct Liability for Infringement on the Internet
[1] The “Volitional Conduct” Approach
[2] The “Server Test” Approach
[3] The “Implied License” or “Social Contract” Approach
§ 5A.03 Service Providers’ Secondary Liability for Infringement on the Internet
[1] The Importance of Secondary Liability in Cyberspace
[2] Theories of Secondary Liability
[3] The Causal Nexus Between Secondary Defendants’ Acts and Others’ Infringement

Limitations on Liability for Service Providers

§ 6.01 Introduction
[1] Internet Service Providers as “Conduits” for Others’ Content
[2] The Risk of Federal Common-Law Liability for Others’ Infringement
[3] The Section 512 “Solution”: A “Safe Harbor”
[4] An “End Run” Around Section 512
[5] The Policy Basis for the “End Run”
[6] What Section 512 Does
§ 6.02 Who and What Section 512 Covers
[1] “Service Provider”
[2] General Eligibility Conditions
§ 6.03 Activities and Operations Covered
[1] Automatic and Transparent Activities
[2] Volitional and Visible Activities
[3] Author’s Comment on “Safe Harbor” Under Section 512
§ 6.04 How Section 512 Limits Remedies
[1] Monetary Relief
[2] Injunctive Relief
§ 6.05 Subpoenas to Identify Alleged Infringers
[1] Constitutional Issues
[2] Statutory Interpretation
§ 6.06 Special Rule for Nonprofit Educational Institutions
§ 6.07 Other Aspects of Section 512
[1] Misrepresentation Claims
[2] Relationship with Other Laws
§ 6.08 Communications Decency Act: Protections for Internet Service Providers Against Liability Beyond Copyright
§ 6.09 Cybercrime: The Computer Fraud and Abuse Act
[1] Criminal Law for the New Millennium
[2] Historical Background
[3] Purpose of the CFAA
[4] Application of the CFAA
§ 6.10 Cybersquatting
[1] Elements of a Federal Anticybersquatting Claim
[2] Remedies Under the ACPA
[3] Jurisdictional Authority
[4] Applicable Defenses
[5] Contributory Liability
[6] The Anticybersquatting Consumer Protection Act and The Uniform Domain Name Dispute Resolution Policy