Volume 18, Issue 1 Articles

Is Aereo the 21st Century Version of “Rabbit Ears,” or Is It Just Tying Loopholes?

By Masha Litvinov

Currently, any person can go onto his or her roof, put up an antenna, and watch broadcast television for free, accessing channels such as ABC, NBC, CBS, and Fox. Most people, however, pay for these stations. In fact, about 100 million of the 114 million U.S. homes with TVs pay for cable and satellite television in order to watch the popular free broadcast channels as well hundreds of cable channels most never watch.

Enter Aereo, an Internet-based company that uses dime-sized antennas to pick up signals from network broadcasters and then, without the broadcasters’ permission, retransmits those signals to Internet-connected devices. Aereo sees itself as an innovator, providing a revolutionary service to modern consumers—synonymous with the “Rabbit Ears” used on old TVs. The networks, those providing the signals that Aereo broadcasts, disagree. They see these same “Rabbit Ears” as a giant loophole allowing infringement of their copyrights. Thus, the networks are asking the courts to require that the Rabbit Ears be taken down once and for all. Unfortunately, the Second Circuit has not been the hunting ground hoped for by the networks. Both the district and appellate courts have allowed Aereo to continue operating and, as rabbits have a tendency to do, reproduce in new markets.

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BitTorrent Sharing: The Case Against John Does

By Jeannie Roebuck

In recent years, there has been an increase in copyright infringement litigation against multiple John Does. Copyright holders allege that their copyrights have been infringed through the use of BitTorrent, a peer-to-peer (“P2P”) sharing protocol. In 2003, the first large-scale lawsuit was initiated by the Recording Industry Association of America (“RIAA”), a trade group representing record labels. A year later, the Motion Picture Association of America (“MPAA”) joined the mass enforcement campaign. The lawsuits were part of an industry-wide movement intended to increase awareness among Internet users that P2P sharing of copyrighted files is an illegal activity and a user’s participation in such sharing could result in heavy sanctions.

Prior to filing lawsuits against individual infringers, copyright owners attempted to enforce their copyrights by suing software platform distributors, like Internet Service Providers (“ISPs”), for contributory, vicarious, or inducement of copyright infringement. However, courts’ application of secondary liability in such cases was unpredictable. Generally, courts have not imposed liability on intermediaries for the actions of end users. Further, the Digital Millennium Copyright Act (“DMCA”) provides a potential safe harbor from secondary liability for ISPs that meet certain preliminary requirements. Therefore, suing consumers directly for copyright infringement became an alternative for copyright owners to enforce their rights.

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Compulsory Patent Licensing: The Next Step in Adapting Patents to the Technological Age

By Kristopher Lancial

At the core of intellectual property exists a desire to inspire innovation and creation in order to benefit the public interest. This lofty aspiration has motivated a complex, and often unruly, system of intellectual property protection. One of the most important subsections of intellectual property protection is the patent system. Under current patent law in the United States, the government grants an inventor a limited period of exclusive rights in exchange for the inventor’s disclosure of his or her invention. By permitting this limited monopoly, the government seeks to inspire innovation and creation whilst furthering society’s collective knowledge.

As technology continues to advance at an increasingly rapid pace, so too do the number of patents issued. The rights that accompany the granting of a patent cover most aspects of making, using, and selling inventions and have continuously been used to slow the pace of innovation. The use of patents to hamper growth is not a recent phenomenon. Patents have historically been used to prevent new inventors from building upon an already patented invention. This has been tolerated due to the belief that society must suffer certain costs in exchange for full disclosure of an invention. It is time, however, to consider whether this monopolistic system continues to serve the central goal of intellectual property: the inspiration of innovation.

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Drawing a Line Between Idea and Expression in Videogame Copyright: The Evolution of Substantial Similarity for Videogame Clones

By Christopher Lunsford

The videogame industry is booming. Much of this growth can be attributed to the reproduction and re-envisioning of successful game ideas. Many of today’s popular videogame genres developed as a result of the industry’s successful first-in structure. For example, Westwood Studios’ Dune II: The Building of a Dynasty was credited with the establishment of the Real-Time Strategy (“RTS”) genre. The success of Dune II led to the creation of Blizzard Entertainment’s Warcraft: Orcs & Humans and StarCraft, both of which rank among the industry’s most successful videogame franchises. The success of these two games stemmed from Blizzard’s ability to expand and adapt Dune II. If copyright law had prevented Blizzard from producing similar RTS games, StarCraft and many other popular RTS games may never have reached the market. There is a sense of acceptance for this sort of copying in the videogame industry. Developers appreciate the freedom to reproduce game ideas, so long as the borrowing is not excessive. However, not everyone in the industry feels the same, and disputes over ownership of game concepts often result in legal action.

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