The Intellectual Property and Technology Forum Journal at Boston College Law School (IPTF Journal) is a legal publication dedicated to providing readers with rigorous, innovative scholarship, timely reporting, and ongoing discussion from the legal community concerning intellectual property and technology law. IPTF Journal is designed, edited, and published by students at Boston College Law School. Our articles are available freely on our website (<a href="https://sites.bc.edu/iptf/">https://sites.bc.edu/iptf/</a>). They are also available on Westlaw. 

Intellectual Property and Technology Forum

Recent trends in judicial enforcement of contributory copyright infringement claims against ISPs and judicial interpretation of the DMCA safe harbor provisions undermine the balance sought by Congress in the DMCA by imposing excessive liability upon ISPs. The danger of this trend is that such enforcement will have a significant chilling effect on ISP investment in the internet, which fosters both the growth of e-commerce and the ability of a larger segment of the population to participate in the internet community-- both of which ultimately benefit the holders of intellectual property rights. Shielding ISPs from liability for contributory copyright infringement in accord with the DMCA safe harbor provisions does not leave copyright holders without the means to prevent infringement in the digital realm. The DMCA offers numerous options for copyright holders in cyberspace that are not available in "real space," such as the technological self-help anti-circumvention provisions of 17 U.S.C. § 1201, the subpoena provisions of 17 U.S.C. § 512(h) that enable copyright holders to locate and bring suit against direct infringers, and the notice and takedown provisions of 17 U.S.C. § 512(b)-(d). Parts II and III of this note discuss the law of contributory copyright infringement and the safe harbor provisions of the DMCA, respectively. Part IV discusses recent judicial enforcement of contributory copyright infringement claims against ISPs and the interpretation and application of the DMCA safe harbor provisions in those cases. Part V discusses the policy implications of such decisions and argues for a more faithful judicial adherence to the congressional mandate.

Shooting the Messenger: ISP Liability for Contributory Copyright Infringement

The problems associated with the existence of bad patents and the need for an effective, inexpensive vehicle for challenging them are nothing new. Over the past twenty-five years, several laws were proposed and passed intending to remedy these ills. Most recently, Congress introduced a bill aimed at curbing the adverse effects of bad patents, and prominent policy organizations and commentators advocated for, inter alia, the adoption of a new post-grant opposition as an antidote to the poison of bad patents. While these recent developments are certainly promising, without due attention given to the "advancement or social benefit gained thereby," such measures may fall upon deaf ears or fail to reform the patent system in a manner that furthers the constitutional mandate of promoting the public welfare. Part II of this paper briefly explains the meaning of bad patents and then summarizes past legislative attempts to design an administrative review procedure for correcting them. Part III discusses the provisions of an administrative post-grant opposition procedure contained in a patent reform bill recently introduced in Congress. Part IV provides a public welfare rationale for adopting a new administrative post-grant opposition highlighting the adverse public effects of granting bad patents. Part V argues for the addition of specific provisions to the current bill that better serve the constitutional purpose of advancing the public's welfare.

Remembering the Public’s Interest in the Patent System – A Post-Grant Opposition Designed to Benefit the Public

In <i>KP Permanent Make-Up, Inc., v. Lasting Impression I, Inc.</i>, the U.S. Supreme Court held that a defendant asserting the affirmative defense of fair use in response to a claim of trademark infringement does not have to shoulder the burden of proving there was no likelihood of confusion as a result of their fair use. The Supreme Court granted KP Permanent's petition for certiorari in this matter to resolve a split among six of the federal courts of appeal. This article will first consider both the common law and statutory history underlying the fair use doctrine of trademark law. The article will then consider the KP Permanent case and its procedural history, taking into account the shortcomings of the Supreme Court's holding, not only with respect to the decision, but also to the possible ripple effects of that decision. Finally, a test will be suggested that would offer some protection for business owners of incontestable descriptive marks whose rights have been somewhat diminished after KP Permanent.

"Fair Use" Trumps Likelihood of Confusion in Trademark Law the Supreme Court Rules in KP Permanent v. Lasting Impression

Ever since 1954, when film critic Francois Truffaut "asserted that the worst of Jean Renoir's movies would always be more interesting than the best of Jean Delannoy's," the director has come to be seen as the auteur of the films she directs. This idea, while fine for film critics, has unnecessarily crept into the law. Directors currently enjoy a unique status under UK law due in part to the idea that they are the sole creative auteur of a film. This article questions this special status and suggests some changes within the framework of existing EU directives in order to bring the rights granted to those who work on a film more in line with those who work on other creative works.

Intellectual Property and Technology Forum (Vol. 2006)

Items in this collection

Shooting the Messenger: ISP Liability for Contributory Copyright Infringement

Remembering the Public’s Interest in the Patent System – A Post-Grant Opposition Designed to Benefit the Public

"Fair Use" Trumps Likelihood of Confusion in Trademark Law the Supreme Court Rules in KP Permanent v. Lasting Impression

Are Auteurs Really All That Special?

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Remembering the Public’s Interest in the Patent System – A Post-Grant Opposition Designed to Benefit the Public

"Fair Use" Trumps Likelihood of Confusion in Trademark Law the Supreme Court Rules in KP Permanent v. Lasting Impression

Are Auteurs Really All That Special?

Items in this collection