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References
See John Perry Barlow, Intellectual Property, Information Age, in Copy Fights: The Future of Intellectual Property in the Information Age 37, 39 (Adam Thierer & Wayne Crews eds., 2002) (remembering Jack Valenti’s attitude).
Some commentators describe this situation as a sort of “paracopyright.” See H.R. Rep. No. 105–551, pt. 2, at 24–25 (1998); Netanel, supra note 119, at 24; David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 686 (2000); Melville B. Nimmer & David Nimmer, 3 Nimmer on Copyright 12A.18[B] n.15 (2003); See also Severine Dusollier, Some Reflections on Copyright Management Information and Moral Rights, 25 Colum. J.L. & Arts 377, 382 (2001–2002).
See Marks & Turnbull, supra ch. 1, note 6, at 200.
It is useful to remember that there are at least two other main international treaties that are intended to harmonize copyright law among nations. The first one is the Berne Convention for the Protection of Literary and Artistic Works, adopted in 1886. The other one is the 1994 Agreement on Trade Related Aspects of Intellectual Property Rights (hereinafter TRIPs Agreement). For a positive comment on the WIPO treaties as “a measured and balanced response to the digital age,” see Thomas C. Vinje, The new WIPO Copyright Treaty: a happy result in Geneva, 5 Eur. Intell. Prop. Rev. 230, 230 (1997). For other commentators the treaties represented another step in the Americanization of world copyright law. For general discussion on the point, see Pamela Samuelson, Challenges for the World Intellectual Property Organization and the Trade-related Aspects of Intellectual Property Rights Council in Regulating Intellectual Property Rights in the Information Age, 21 Eur. Intell. Prop. Rev. 578 (1999); David Vaver, Internationalizing Copyright Law: Implementing the WIPO Treaties, OIPRC Elec. J. Intell. Prop. Rights (1998), http://www.oiprc.ox.ac.uk/EJWP0199.html. For a general comment, see also Howard P. Goldberg, Note, A Proposal for an International Licensing Body to Combat File Sharing and Digital Copyright Infringement, 8 B.U. J. Sci. & Tech. L. 272 (2002), and Silke von Lewinski, WIPO Diplomatic Conference Results in Two New Treaties, 28 Int’l Rev. of Indus. Prop. & Copyright L. 203 (1997).
For the compliance of U.S. law with the WIPO treaties, see Pamela Samuelson, The U.S. Digital Agenda at WIPO, 37 Va. J. Int’l L. 369 (1997).
For an article-by-article analysis of the two treaties see Mihaly Ficsor, The Law of Copyright and the Internet (2002). On the origins of globalization on intellectual property rights through the WTO agreement on Trade-Related Aspects of Intellectual Property Rights, see generally Duncan Metthews, Globalising Intellectual Property Rights: The TRIPs Agreement (2002).
World Intellectual Property Organization: Copyright Treaty, Dec. 20, 1996, 36 I.L.M. 65 (1997) [hereinafter WIPO Copyright Treaty]. The list of signatories of the WIPO Copyright Treaty is available at http://www.wipo.int/edocs/notdocs/en/wct/treaty_wct_2.html (last visited May 29, 2006).
WIPO Copyright Treaty, supra note 7, art. 11.
World Intellectual Property Organization: Performances and Phonograms Treaty, Dec. 20, 1996, 36 I.L.M. 76 (1997) [WIPO Performances and Phonograms Treaty]. The list of signatories of the WIPO Phonograms and Performances Treaty is available at http://www.wipo.int/edocs/notdocs/en/wppt/treaty_wppt_1.html (last visited May 29, 2006). WIPO Phonograms and Performances Treaty, supra note 9, art. 18, Obligations concerning Technological Measures: Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law. Id. at 86.
Many commentators have noticed that the adoption of both acts has been the result of the great content-provider lobbying activity. See, e.g., Rick Boucher, The Future of Intellectual Property in the Information Age, in Copy Fights, supra Wayne Crews eds., 2002) note 1, at 95, 97; MacQueen, supra Intro., note 33, at 213; Burk & Cohen, supra ch. 1, note 140.
Council Directive 2001/29, 2001 O.J. (L 167) 10 (EC).
Pub. L. No. 105–304, 112 Stat. 2860 (Oct. 28, 1998).
For this schematization, see U.S. Copyright Office, The Digital Millennium Copyright Act of 1998: U.S. Copyright Office Summary 1 (Dec. 1998), available at http://www.copyright.gov/legislation/dmca.pdf [hereinafter: DMCA Summary].
See Digital Dilemma, supra Intro., note 3, at 318.
For this outline, see the UCLA Online Institute for Cyberspace Law and Policy, The Digital Millennium Copyright Act (2001) available at http://www.gseis.ucla.edu/iclp/dmca 1.htm.
Section 405 of the DMCA amends the Digital Performance Right in Sound Recording Act of 1995 (DPRSA), expanding the statutory license for subscription transmissions to include webcasting as a new category of “eligible nonsubscription transmissions.” For DPSRA’s omission of webcasts, see Jane C. Ginsburg, Copyright Legislation for the “Digital Millennium”, 23 Colum.-VLA J.L. & Arts 137, 167 (1999).
For critical comments on the on the DMCA anti-circumvention provisions, see Julie E. Cohen, Copyright and the Jurisprudence of Self Help, 13 Berkeley Tech. L.J. 1089 (1998); Neil Netanel, Recent Developments in Copyright Law, 7 Tex. Intell. Prop. L.J. 331 (1999); Jonathan Band, The Digital Millennium Copyright Act: A Balanced Result, 21 Europ. Intell. Prop. Rev. 92 (1999); Jane C. Ginsburg, Copyright Legislation for the Digital Millennium, 23 Colum.-VLA J.L. & Arts 137 (1999); Ginsburg, supra note 25; June Besek, Anti-Circumvention Laws and Copyright: A Report From the Kernochan Center for Law, Media and the Arts, 27 Colum. J.L. & Arts 385 (2004); Jacques de Werra, The Legal System of Technological Protection Measures under the WIPO Treaties, the Digital Millennium Copyright Act, the European Directives and other National Laws (Japan, Australia), Adjuncts and Alternatives to Copyright, ALAI 2001 Congress 198 (2002). For a summary of facts and case decisions, see also Amy P. Bunk, Validity, Construction and Application of the Digital Millennium Copyright Act, 2001 A.L.R. Fed 2, 2002) (collecting those cases discussing the validity, construction, and application of the Digital Millennium Copyright Act); Jonathan Zittrain, Technological Complements to Copyright 56 (2005).
See Digital Millennium Copyright Act, Pub. L. No. 105–304, 112 Stat. 2860 (1998).
Id.
See Nimmer, supra note 2, at 684.
See Melville B. Nimmer & David Nimmer, 3 Nimmer on Copyright 12A.03[D][1] (2003) (quoting H. Rep. (DMCA), p.17).
See DMCA Summary, supra note 15, at 4.
See Pamela Samuelson and Suzanne Scotchmer, The Law and Economics of Reverse Engineering, 111 Yale L.J. 1575, 1636 (2002).
See Besek, supra note 26, at 398.
17 U.S.C. 1201(a)(1)(B)-(E). See Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354, 427–29 (1999) (arguing that the DMCA anticircumvention rules are unconstitutional, in part because the Librarian’s authority is too constricted).
See DMCA Summary, supra note 15, at 7.
See Digital Media Consumers Rights Act of 2005, HR 1201, 109th Cong. 1st Sess. (available at http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.1201:).
For a more comprehensive overview and commentaries on the European Directive 2001/29/EC on Copyright Law in the Information Society, see Michael Hart, The Proposed Directive for Copyright in the Information Society: Nice Rights, Shame about Exceptions, 5 Eur. Intell. Prop. Rev. 169 (1998); Adolf Dietz, The Protection of Intellectual Property in the Information Age: the Draft EU Copyright Directive of November 1997, 4 Intell. Prop. Q. 335 (1998); Severine Dusollier, Electrifying the Fence: The Legal Protection of Technological Measures for Protecting Copyright, 21 Eur. Intell. Prop. Rev. 285 (1999); P. Bernt Hugenholtz, Why the Copyright Directive is Unimportant, and Possibly Invalid, 22 Eur. Intell. Prop. Rev. 499 (2000); Ian Brown, Implementing the European Union Copyright Directive, available at http://www.fipr.org/copyright/guide/eucd-guide.pdf; Garrote Fernández-DÍez, El Derecho de Autor en Internet: La Directiva Sobre Derechos de Autor y Derechos Afines en la Sociedad de la Información, 2001; Michael Hart, The Copyright in the Information Society Directive: An Overview, 24 Eur. Intell. Prop. Rev. 58 (2002); Pierre Sirinelli, The Scope of the Prohibition on Circumvention of Technological Measures: Exceptions in Adjuncts and Alternatives to Copyright: Proceedings of the ALAI Congress June 13–17, 2001 384 (Jane C. Ginsburg & June M. Besek eds., 2002); Maria Martin-Prat, The Relationship Between Protection and Exceptions in the EU “Information Society” Directive, in Adjuncts and Alternatives to Copyright 466 (Jane C. Ginsburg & June M. Besek eds., 2002); Nora Braun, The Interface Between the Protection of Technological Measures and the Exercise of Exceptions to Copyright and Related Rights: Comparing the Situation in the United States and the European, 25 Eur. Intell. Prop. Rev. 496 (2003); Maria Teresa Scassellati Sforzolini, La Direttiva Comunitaria del 22 maggio 2001 n. 29 sull’Armonizzazione di Taluni Aspetti del Diritto d’Autore nella Società dell’Informazione, 74 Dir. Aut. 65 (2003); Alvise Maria Casellati, Protezione Legale delle Misure Tecnologiche ed Usi Legittimi. L’articolo 6.4 della Direttiva Europea e sua Attuazione in Italia, 74 Dir. Aut. 360 (2003); Kamiel J. Koelman, Copyright Law and Economics in the EU Copyright Directive: Is the Droit d’Auteur Passe?, 35 Int’l Rev. of Indus. Prop. & Copyright L. 603 (2004); Giuseppe Mazziotti, Monopoli Elettronici e Utilizzazioni Libere nel Diritto d’Autore Comunitario, 75 Dir. Aut. 150 (2004).
Council Directive 2001/29, Recital 15, 2001 O.J. (L 167) 11 (EC).
For this outline, see European Union SCADPLUS service, Copyright and Related Rights in the Information Society: The Harmonisation of Certain Aspects (2001), http://europa.eu.int/scadplus/leg/en/lvb/l26053.htm.
Council Directive 2001/29, art. 2, 3 and 4 2001 O.J. (L 167) 16 (EC).
Council Directive 2001/29, art. 5, 2001 O.J. (L 167) 16 (EC).
Council Directive 2001/29, art. 6, 7 2001 O.J. (L 167) 17, 18 (EC).
Council Directive 2001/29, art. 2, 2001 O.J. (L 167) 16 (EC).
Id.
Council Directive 2001/29, art. 3, 2001 O.J. (L 167) 16 (EC).
See European Union SCADPLUS service, supra note 59.
Council Directive 2001/29, art. 3(2), 2001 O.J. (L 167) 16 (EC). Under the European concept of “exhaustion” and its U.S. equivalent “first sale” doctrine, the exclusive right of distribution cease after a copyright holder authorizes the first disposal of a copy of the work. A good-faith possessor of the copy can then dispose of it without seeking authorization of the copyright holder. Under the doctrine of first sale, once the copyright owner transfers title to a copy of the copyrighted work to a third party, the third party is entitled to sell or dispose of it without acquiring the copyright owner’s consent. See Margreth Barrett, Intellectual Property — Patents, Trademarks & Copyrights 227 (2000).
WIPO Copyright Treaty, supra note 7, art. 6 and 8. According to Article 6: “Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.” According to Article 8: “... authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.”
See Gasser, supra ch. 1, note 35, at 59.
Council Directive 2001/29, art. 5, 2001 O.J. (L 167) 16 (EC).
Council Directive 2001/29, art. 5 (1), 2001 O.J. (L 167) 16 (EC). See also European Union SCADPLUS service, supra note 59.
Council Directive 2001/29, Art. 5(3), 2001 O.J. (L 167) 16 (EC).
Council Directive 2001/29, Art. 5(2)(a), (b), 2001 O.J. (L 167) 16 (EC).
The rules on copies for private use have been present for many years in the legislation of a number of countries. For example, such rules were introduced in Italy by Law 93 of 5 February 1992 (entitled: “Norme a favore delle imprese fonografiche e compensi per le riproduzioni private senza scopo di lucro”), as aligned with the standards generally in force in Europe with Legislative Decree 68/2003 transposing Directive 2001/29/EC. See Italian Minister of Innovation and Technologies: Department for Innovation and Technology, Report of the Interministerial Committee on Digital Content in the Internet Age, 22 (2005), http://www.mininnovazione.it/eng/intervento/allegati/rap_cont_dig.pdf. On the levies systems, see P. Bernt Hugenholtz et al., The Future of Levies in the Digital Environment, (2003), available at http://www.ivir.nl/publications/other/DRM&levies-report.pdf.
Council Directive 2001/29, Recital 6, 2001 O.J. (L 167) 10 (EC).
See, e.g. Casellati supra note 94, at 392.
See Severine Dusollier, Exceptions and Technological Measures in the European Copyright Directive of 2001-An Empty Promise, 34 Int’l Rev. Indus. Prop. & Copyright L. 62, 66 (2003). According to the author, the EC exceptions regime is, on the contrary, largely harmonized for specific works, i.e. software and databases.
Recitals 13 and 47 state that common development and use of technological protection measures and rights management information systems are fundamental, because both technologies give effect to copyright and related rights. See Council Directive 2001/29, Recital 13, 47, 2001 O.J. (L 167) 11, 14 (EC).
Council Directive 2001/29, art. 6(3), 2001 O.J. (L 167) 17 (EC).
Council Directive 2001/29, art. 6(2), 2001 O.J. (L 167) 17 (EC).
Council Directive 2001/29, art. 6(4), 2001 O.J. (L 167) 17-18 (EC).
The term was first used in Severine Dusollier, Exceptions and Technological Measures in the European Copyright Directive of 2001 — An Empty Promise, 34 Int’l Rev. Indus. Prop. & Copyright 62, 70 (2003).
Id.
Id.
Id. at 63.
Council Directive 2001/29, art. 6.4(4), 2001 O.J. (L 167) 18 (EC).
See Casellati, supra note 94, at 387.
Greece (entered into force on October 10, 2002), Denmark (enforceable since December 22, 2002), Italy (implemented April 9, 2003), Austria (entered into force on 1st July 2003), Germany (implemented September 13, 2003), Luxembourg (implemented April 29,2004), UK (implemented October 31, 2003), Ireland (implemented January 19, 2004), Netherlands (implemented September 1, 2004). Gasser & Girsberger, supra note 121, at 8. For a comment on the Italian implementation, see Mario Fabiani, L’attuazione della Direttiva CE sul Diritto di Autore nella Società dell’Informazione. Un Analisi Comparativa, 74 Dir. Aut., 331 (2003).
According to the official press release, thee Commission has decided, under Article 228 of the EC Treaty, to send France and Finland further “reasoned opinions” requesting them to comply immediately with the previous judgments of the European Court of Justice on their non-implementation of the Directive. In addition, the Commission has sent the Czech Republic a letter of formal notice — the first stage of infringement proceedings under Article 226 of the EC Treaty — asking it to provide full information on its implementation of Directive. Finally, it has also sent an informal letter to Spain to receive information about compliance with a previous judgment of the European Court on its nonimplementation of the Directive. See Press Release, Copyright: infringement proceedings against France, Finland, Spain and the Czech Republic for nonimplementation of 2001 Copyright Directive, available at http://europa.eu.int/r apid/pressReleasesAction.do?reference=IP/05/921&format=HTML&aged=0& language=EN&guiLanguage=en (last visited May 1, 2006) (discussing IP/05/92 1 Brussels, Jul. 13, 2005).
See Italian Minister of Innovation and Technologies: Department for Innovation and Technology, Report of the Interministerial Committee on Digital Content in the Internet Age, 32 (2005), at http://www.mininnovazione.it/eng/interv ento/allegati/rap_cont_dig.pdf.
See Gregory Hunt, In a Digital Age: The Musical Revolution Will Be Digitalized, 11 Alb. L.J. Sci. & Tech. 181, 193 (2000). President Clinton stated that the DMCA implemented “[firm] standards, carefully balancing the interests of both copyright owners and users.” President’s Statement on Signing the Digital Millennium Copyright Act, 2 Pub. Papers 1902 (Oct. 28, 1998). On the other hand, Frits Bolkestein, Internal Market Commissioner, stressed how “Europe’s creators, artists and copyright industries can now look forward for renewed confidence to the challenges posed by electronic commerce. At the same time, the Directive secures the legitimate interests of users, consumers and society at large.” Press Release, European Commission, Commission Welcomes Adoption of the Directive on Copyright in the Information Society by the Council (Apr. 9, 2001), available at http://europa.eu.int/rapid/pressReleases Action.do?reference=IP/01/528&format=PDF&aged=1&language=EN&guiLa nguage=fr.
See Alice Ritchie, Hanging in the Balance: Fair Use for Digital Works, 9 U. Balt. Intell. Prop. L.J. 29, 33 (2000). The EC Directive wants to “foster the development of the information society in Europe.” Eur. Parl. Directive pmbl. 2001/29, 2001 O.J. (L 167) 2 (EC).
On the failures of DMC, see generally Nimmer, supra note 2, at 739–40; Netanel, supra note 119, at 79.
See Severine Dusollier, Tipping the Scale in Favor of the Right Holders: The European Anti-Circumvention Provisions, in Digital Rights Management, supra note 117, at 462, 466. See also Francesca Calovi & Nicola Lucchi, Pirateria Musicale: Tecnologia e Diritto, 7/8 Stud. Iuris 1027, 1032 (2004). The DMCA provides that: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title”, nor shall any person “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that (A) is primarily designed or produced for the purpose of circumventing...; (B) has only limited commercially significant purpose or use other than to circumvent...” 17 U.S.C. § 1201(a)(1)-(2) (2000). Under the European Copyright Directive: (1) Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective. (2) Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which: (a) are promoted, advertised or marketed for the purpose of circumvention of, or; (b) have only a limited commercially significant purpose or use other than to circumvent, or; (c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures. Eur. Parl. Directive 2001/29, art. 6, 2001 O.J. (L 167) 1, 2 (EC).
See, e.g., International Federation of the Phonographic Industry, IFPI:05. Digital Music Report (2005) [hereinafter IFPI:05 Digital Music Report], http://www.ifpi.com/site-content/library/digital-music-report-2005.pdf.
See Ritchie, supra note 99, at 37.
See P. Bernt Hugenholtz, Why the Copyright Directive is Unimportant, and Possibly Invalid, 22 Eur. Intell. Prop. Rev. 499, 500 (2000); Michael Hart, The Copyright in the Information Society Directive: An Overview, 24 Eur. Intell. Prop. Rev. 58 (2002); Dusollier, supra note 77.
See Robin D. Gross, Copyright Zealotry in a Digital World: Can Freedom of Speech Survive?, in Copy Fights, supra Wayne Crews eds., 2002 note 1, at 189, 190.
See; Joanna Perrit, Protecting Technology over Copyright: A Step Too Far, 14 Ent. L.Rev. 1, 2 (2003).
The Electronic Frontier Foundation has documented numerous problems that anti-circumvention provisions in the DMCA have caused in the U.S. for legitimate users of copyrighted works. See Electronic Frontier Foundation, Unintended Consequences: Five Years under the DMCA, (Sept. 24, 2003), http://www.eff.org/IP/DMCA/unintended_consequences.php. See Calovi, supra note 104.
For this schematization, see Gasser, supra note 35.
See Digital Dilemma, supra Intro., note 3, at 153; Pamela Samuelson, DRM {and, or, vs.} the Law, 46 Comm. ACM 41, 42 (2003).
See Kamiel J. Koelman, Copyright Law and Economics in the EU Copyright Directive: Is the Droit d’Auteur Passé?, 35 Int’l Rev. of Indus. Prop. & Copyright L. 603, 606 (2004) (Affirming that Recital 2, 4, 9 and 10 of the Directive express the law and economics approach to copyright).
For this outline, see European Union SCADPLUS Service, Copyright and Related Rights in the Information Society: The Harmonisation of Certain Aspects (2001), http://europa.eu.int/scadplus/leg/en/lvb/l26053.htm.
“...to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned.” Council Directive 2001/29, art. 6, 2001 O.J. (L 167) 10, 17–18 (EC). The Article also allows for right-holders’ compliance through “agreements between rightholders and other parties concerned,” namely through contracts. For a critical overview of the Directive, see Séverine Dussollier, Fair Use by Design in the European Copyright Directive of 2001, 46 Comm. ACM 51 (2003).
For further discussion on the complex structure of Article 6.4 of the EC Copyright Directive, see Casellati, supra note 94, at 372–77.
See Dusollier, supra note 82, at 472.
See Dusollier, supra note 77, at 69.
For a state of the art as to implementation status at the date of September 22, 2004, see Urs Gasser & Michael Girsberger, Transposing the Copyright Directive: Legal Protection of Technological Measures in E.U.-Member States. A Genie Stuck in the Bottle? (Berkman Working Paper No. 2004-10) available at http://ssrn.com/abstract=628007; Silke von Lewinski, Rights Management Information and Technical Protection Measures as Implemented in EC Member States, 35 Int’l Rev. of Intell. Prop. & Competition L. 844 (2004).
Moreover, it has to be stressed how the Directive does not specifically identify any kind of measure to be taken by developers of technological protection measures, nor provides for guidelines in case of non-compliance both in terms of defining the extent of a possible action and the time deemed reasonable for voluntarily accomplishment. See MacQueen, supra Intro., note 33, at 219.
Orin S. Kerr, A Lukewarm Defense of the DMCA, in Copy Fights, supra Wayne Crews eds., 2002 note 1, at 163, 168. 2001/29 is part of a wider program started with Directive 2000/31 aimed at preserving the status quo of power of the music industry through progressively but steadily limiting users’ rights. The E-Commerce Directive 2001/31 obliges ISPs to remove illegal material or promptly inform authorities about such activities. This responsibility is only relieved when the ISP is not aware at all of the illegality of activities. Thus, ISPs are forced to intervene when illegality is proved, and also when it is only presumed. See Enzo Mazza, Più facile contrastare il fenomeno della pirateria musicale online, Interlex, May 15, 2003, http://www.interlex.it/c pyright/mazza3.htm.
Eleanor M. Lackman, Slowing Down the Speed of Sound: A Transatlantic Race to Head Off Digital Copyright Infringement, 13 Fordham Intell. Prop. Media & Ent. L.J. 1161, 1177 (2003).
See Dusollier, supra note 82, at 475 (remarking that Recital 48 of the directive states that protection “should not hinder research into cryptography”).
The exception is considered too narrow, because it only applies if the sole purpose of the reverse engineering is to achieve program-to-program interoperability and if reverse engineering is necessary to do so. See e.g. Pamela Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14 Berkeley Tech. L. J. 519 (1999); 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 12A.04[B] (2000).
Directive 91/250/EEC on the Legal Protection of Software Programs 1991 O.J. (L. 122) 42, 45.
Article 6(1) allows a party entitled to use a program to decompile it “to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs” under three conditions. The decompilation must be done (a) by “the licensee or by another person having a right to use a copy of the program” or the agent of either. It is permissible (b) to obtain only “information necessary to achieve interoperability [that] has not previously been readily available” to these persons. And it must be (c) “confined to the parts of the original program which are necessary to achieve interoperability.” Id. at 45.
“Any contractual provisions contrary to Article 6 or to the exceptions provided for in Article 5 (2) and (3) shall be null and void.” Directive 91/250/EEC, Art. 9(1), 1991 O.J. (L. 122).
See Thomas Heide, Copyright, Contract and the Legal Protection of Technological Measures — Not “The Old Fashioned Way”: Providing a Rationale to the “Copyright Exceptions Interface” 50 J. Copyright Soc’y U.S.A 315, 334–335 (2003).
See Besek, supra note 26, at 393.
See Casellati, supra note 94, at 400.
See United States Copyright Office, Executive Summary Digital Millennium Copyright Act Section 104 Report, III(1)(a) at http://www.loc.gov/copyright/re ports/studies/dmca/dmca_executive.html (last visited May 15, 2006) [hereinafter Copyright Office, Report].
17 U.S.C. 109 (2005). “the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”. Id.
See Raquel Xalabarder, Copyright and Digital Distance Education: The Use of Pre-Existing Works in Distance Education Through the Internet, 26 Colum. J.L. & Arts 101, 117 (2003); R. Anthony Reese, The First Sale Doctrine in the Era of Digital Networks, 44 B.C. L. Rev. 577 (2003).
Council Directive 2001/29, Recital 28, 2001 O.J. (L 167) 12 (EC).
Council Directive 2001/29, Recital 29, 2001 O.J. (L 167) 12 (EC).
See Emery Simon, The DMCA: Providing Locks for Digital Doors, in Copy Fights, supra Wayne Crews eds., 2002 note 1, at 171. The theory articulated by Simon could be easily extended to the EC Directive in question, as their scope and implications are alike.
It is allowed under 17 U.S.C. § 117 (2000) and under Council Directive 91/250/CEE, art. 5(2), 1991 O.J. (L 122/42). Computer programs are always provided on some storage device (DVDs or CDs). Such storage media are relatively fragile and it is all too possible that their contents might be accidentally corrupted or erased. In these situations, it might not seem irrational for an end user to get a back-up copy of the work with the only purpose that this will be stored and used in the case that the original copy of the software is damaged or lost. See Lloyd, supra Intro., note 7, at 397. For a brief overview of anticircumvention systems in Europe, see Terese Foged, U.S. v. E.U. Anti-Circumvention Legislation: Preserving the Public’s Privileges in the Digital Age?, 24 Eur. Intell. Prop. Rev. 525 (2002) (with specific reference to Denmark); Hart, supra note 104.
See Dusollier, supra note 82, at 477.
John R. Therien, Exorcising the Specter of a “Pay-Per-Use” Society: Toward Preserving Fair Use and the Public Domain in the Digital Age, 16 Berkeley Tech. L.J. 979, 985–990 (2001).
See Nimmer, supra note 2, at 686.
See Perrit, supra note 107, at 4. See also Severine Dusollier, Exceptions and Technological Measures in the European Copyright Directive of 2001 — An Empty Promise, 34 Int’l Rev. Indus. Prop. & Copyright L. 62, 70 (2003) (noting how the Directive employs a “fair use by design” approach in the field of copyright exceptions).
See Gasser & Girsberger, supra note 121, at 12.
Id. European Union directives are legally binding on Member States, but they require the adoption of implementing legislation on the Member State level. See Consolidated Version of the Treaty Establishing the European Community, Dec. 24, 2002, O.J. (C 325) 65 (2002), article. 249, stating that directive “shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.” For a comprehensive overview of EU law, see e.g. Denys Simon, Le Systeme Juridique Communautaire (3d ed. 2001); Giorgio Gaja, Introduzione al Diritto Comunitario (2005).
See Burk & Cohen, supra ch. 1, note 140, at 60–61.
Id. at 50.
On the relationship between technological protection measures and peer-to-peer networks, see Peter Biddle et al., The Darknet and the Future of Content Protection, in Digital Rights Management, supra ch. 1, note 117, at 344.
In 1998 the Record Industry Association of America (RIAA) sued Diamond Multimedia, manufacturer of the first portable MP3 player, with the purpose to hinder the distribution of MP3 music format. In this case the judge, considering the fair use doctrine, recognized the right of consumers to copy, and therefore to transform the CD into musical files. At the same time he recognized the right to produce instruments that make it possible. Recording Indus. Ass’n, Inc. v. Diamond Multimedia Sys., Inc., 29 F. Supp. 2d 624, 631–32 (C.D.Cal. 1998), aff’d, 180 F.3d 1072 (9th Cir. 1999).
For a Napster case summary, see Lisa M. Zepeda, A&C Records, Inc. v. Napster, Inc., 17 Berkeley Tech. L.J. 71 (2002). For a full coverage of Napster’s history, see also Alderman, supra ch. 1, note 36; Trevor Merriden, Irresistible Forces: The Business Legacy of Napster & the Growth of the Underground Internet (2001).
On appeal, the Ninth Circuit upheld an injunction issued by the Federal District Court finding that the sharing of copyrighted files was not fair use and was not within other exemptions of copyright infringement created by the Audio Home Recording Act or the Digital Millennium Copyright Act. See A&M Records v. Napster, 191 F. Supp. 2d 1087, 284 F.3d 1091 (2002).
At present, some of the most popular sharing programs are: eDonkey, Kazaa, WinMX, LimeWire, Morpheus, BearShare, Gnutella, etc. For a detailed analysis of the current framework, see Gartner, G2 & The Berkman Center for Internet & Society at Harvard Law School, Copyright and Digital Media in a Post-Napster World, (2003) http://cyber.law.harvard.edu/home/uploads/254/2003-05.pdf.
Napster was found liable for vicarious copyright infringement because the court determined that it does have the ability to supervise and control its users. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022–23 (9th Cir. 2001). It also derived a direct financial benefit through the infringing activity. Napster, 239 F.3d at 1023. In fact, “Napster’s Achilles’ heel was that it retained a trace of the client-server model” by depending on a centralized file server. Kurt Kleiner, Free Speech, Liberty, Pornography: The Internet and Peer to Peer Networking, 169 New Scientist 32, 33 (2001).
For alternative solutions to the problem of the peer-to-peer, see William W. Fisher III, Promises to Keep: Technology, Law, and the Future of Entertainment 199–258 (2004) and Neil Weinstock Netanel, Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing, 17 Harv. J.L. & Tech. 1 (2003) (proposing to legalize peer-to-peer networks and replace the lost revenues with a tax on hardware and internet service). See also Lionel S. Sobel, DRM as an Enabler of Business Models: ISPs as Digital Retailers, 18 Berkeley Tech. L.J. 667, 667–68 (2003) (proposing another way to assure remuneration for right-holders: a model whereby ISPs act as digital retailers). See Charles Mann, The Year the Music Dies, Wired, Feb. 2003, at 90, available at http://www.wired.com/wired/archive/11.02/dirge.html.
See Congressional Budget Office, supra ch. 1, note 96, at 18.
See 17 U.S.C. § 512 (2000). For a discussion of this issue, see Douglas Lichtman & William Landes, Indirect Liability for Copyright Infringement: An Economic Perspective, 16 Harv. J.L. & Tech. 395, 401–02 (2003).
Council Directive 2001/29, 2001 O.J. (L 167) 10 (EC); Council Directive 2004/48, 2004 O.J. (L 195) 16 (EC). See infra Ch. 2 § 2.5.
A first wave of legal actions has already affected Germany, Italy, and Denmark in March 2004. In Italy, 30 people have already been charged with copyright infringement, while computers and files have been seized as evidence. In Denmark, 120 people have been sent civil demands asking them to stop illegal file-sharing and to pay compensation or face legal action. See Europe’s Song-Swappers Face Court, BBC News (World ed.), Mar. 30, 2004, http://news.bbc.co.uk/2/hi/entertainment/3581935.stm.
See Mark A. Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement without Restricting Innovation, 56 Stan. L. Rev. 1345 (2004). Lemley and Reese assert that lawsuits against final users could be a good solution: in fact, according to their opinion
See Biddle et. al., supra note 151. See generally Lemley & Reese, supra note 162.
Raymond Shih Ray Ku, The Creative destruction of Copyright: Napster and the New Economics of Digital Technology, 69 U. Chi. L. Rev. 263 (2002).
Id. at 294.
David W. Opderbeck, Peer-to-Peer Networks, Technological Evolution, and Intellectual Property Reverse Private Attorney General Litigation, 20 Berkeley Tech. L.J. 1685, 1688 (2005).
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Inc., 259 F. Supp. 2d 1029, 1041–43 (2003), aff’d, 380 F.3d 1154 (9th Cir. 2004), rev’d, 125 S. Ct. 2764 (2005). On June 27, 2005, the United States Supreme Court reversed the Ninth Circuit’s decision and held that Grokster and StreamCast could be liable for unlawfully inducing copyright infringement. For a brief overview of the case, see generally Lori Ploeger, Matthew D. Brown, and Orion Armon, An Overview of MGM Studios Inc. v. Grokster, Ltd., 34 The Col. Law. 89; Urs Gasser and John Palfrey, Catch-As-Catch-Can: A Case Note on Grokster, Berkman Center Research Publication Series 2005 available at http://papers.ssrn.com/so l3/papers.cfm?abstract_id=869030). For an European point of view, see Hilary Pearson and Graham Smith, Internet Filesharing. A European Perspective on Grokster, 10 Cyber. Law. 11 (2005).
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984). (applying the substantial non-infringing use doctrine for the first time in a copyright case).
The Supreme Court held that “one who distributes a device with the object of promoting its use to infringe copyrights, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting [third party] acts of [copyright] infringement.” See 125 S. Ct. 2764, 2780 (2005). Based on the theory of inducement and according to this evidence, the Supreme Court remanded the case to the lower courts for a determination of StreamCast’s and Grokster’s liability. See Gasser and Palfrey, supra note 167, at 6.
See IFPI:05 Digital Music Report, supra note 102.
Id.
Council Directive 2004/48/EC, 2004 O.J. (L 157) 45 (EC). For detailed information on this Directive,, see Enforcement of Intellectual Property Rights, http://www.europa.eu.int/comm/internal_market/en/indprop/piracy/index.htm (last visited June 1, 2006). For critical comments, see Ryan Bates, Communication Breakdown: the Recording Industry’s Pursuit of the Individual Music User, a Comparison of US and EU Copyright Protections for Internet Music File Sharing, 25 Nw. J. Int’l L. & Bus. 229 (2004); Rico Calleja, The IP Enforcement Directive, 10 Comp. & Telecomm. L. Rev. 55 (2004); David Ellard, The EU’s IPR Enforcement Directive: origin, key provisions and future of the EU’s IPR Enforcement Directive, 3 Computer L. Rev. Int’l 64 (2004); Peter Groves, The proposed EC Directive on Enforcement of Intellectual Property Rights, 25 Bus. L. Rev. 149, 151 (2004); Annette Kur, The Enforcement Directive-Rough start, happy landing?, 35 Int’l Rev. of Indus. Prop. and Copyright L. 821 (2004); Charles-Henry Massa & Alain Strowel., The Scope of the Proposed IP Enforcement Directive: Torn between the Desire to Harmonise Remedies and the Need to Combat Piracy, 26 Eur. Intell. Prop. Rev., 244 (2004); Michael Veddern, The Enforcement Directive 2004/48/EC-A Further Step in the Harmonization of IP Laws in Europe, 16 IPR Helpdesk Bulletin 4–5 (2004), available at http://www.ipr-helpdesk.org/newsletter/16/pdf/EN/N16_16_EN.pdf; Roger Wezenbeek, Balancing Consumer and Rightholders’ Interests in-and outside European Union (Jun. 2004), available at http://www.i pacongress. com/prog/work/download/Wezenbeek.pdf; Luca Nivarra, L’Enforcement dei Diritti di Proprietà Intellettuale dopo la Direttiva 2004/48/CE, 54 Riv. Dir. Ind. 33 (2005).
See Italian Minister of Innovation and Technologies: Department for Innovation and Technology, Report of the Interministerial Committee on Digital Content in the Internet Age, 33 (2005), available at http://www.mininnovazione.it/eng/intervento/allegati/rap_cont_dig.pdf.
The Member States will have to implement the Directive by April 28, 2006. Council Directive 2004/48, art. 3., 2004 O.J. (L 157) 61 (EC).
“Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.” See Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, art. 41(1), Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 33 I.L.M. 1125 (1994) [hereinafter TRIPS].
Council Directive 2004/48, Recital 3, 2004 O.J. (L 157) 46 (EC).
Id.
This agreement is an attempt to narrow the gaps in the way intellectual property rights are protected around the world, and to bring them under common international rules. It establishes a minimum level of protection that each government has to give to the intellectual property of fellow WTO members. See TRIPS, supra note 176.
Council Directive 2004/48, recital 7., 2004 O.J. (L 157) 48 (EC).
Id.
According to Robin Gross, the director of civil liberties group IP Justice, the Directive “ [C]reates a broad new ‘Right of Information’ which requires Internet Service Providers (ISPs) to disclose personal information about their customers to recording industry executives for civil prosecution of Peer-to-Peer (P2P) file-sharing and other activities. Similar subpoena powers, created under the notorious US Digital Millennium Copyright Act” even if the power assigned by the directive could be much wider because it “applies to all types of intellectual property infringements, not just copyrights.” Robin Gross, EU Passes Dangerous IP Law, Despite MEP’s Conflict of Interest “Midnight Knocks” by Recording Industry Executives Get Go-Ahead (2004), http://www.ipjustice.org/CODE/release20040309_en.shtml [hereinafter IPjustice].
European Union SCADPlus Service, Enforcement of Intellectual Property Rights (2004), http://europa.eu.int/scadplus/leg/en/lvb/l26057a.htm.
Copyright, trademark and design industries are all affected by intellectual property theft, but practically no product is unaffected by these illegal practices. Contrary to what is thought, not only music, movies, software and other protected contents but also food and beverages, pharmaceuticals, watches, apparels, cigarettes and cosmetics are popular targets of counterfeiters. See Telecom Liberalization Can Benefit All Citizens, AGIP Bulletin June 2004, 5 available at http://www.agip.com/bulletin_sub.aspx?year=2004&month=6&l ang=en. The first Global Congress on Combating Counterfeiting has estimated that the value of counterfeited and pirated goods at over €. 500 billion annually. The First Global Congress on Combating Counterfeiting, World Customs Organization Headquarters, Brussels (May 25–26, 2004), http://www.akjassoci ates.com/wco2004/website.asp?page=declaration.
See European Union SCADPlus Service, supra note 183.
TRIPS art. 41–50 & 61.
Ellard, supra note 173, at 66.
The agreement states that governments have to ensure that intellectual property rights can be enforced under their laws, and that the penalties for infringement are tough enough to deter further violations. The measures must be fair and equitable, and not extremely complicated or costly. TRIPS art. 41.2. They should not require irrational time-limits or unwarranted delays. TRIPS art. 41.2. People involved should be able to ask a court to review an administrative decision or to appeal a lower court’s ruling. TRIPS art. 42. The agreement illustrates in some detail how enforcement should be handled, including rules for obtaining evidence, TRIPS art. 43, provisional measures, TRIPS art. 50, injunctions, TRIPS art. 44, damages, TRIPS art. 45, and other penalties, TRIPS art. 46. It also statues that courts should have the right, under certain conditions, to order the disposal or destruction of pirated or counterfeit goods. TRIPS art. 59. Wilful and malicious trademark counterfeiting or copyright piracy on a commercial scale should be criminal offences. TRIPS art. 61. For other details, see Intellectual Property: Protection and Enforcement, World Trade Organization, at http://www.wto.org/english/thewto_e/whatis_e/tif_e/a grm7_e.htm (last visited June 3, 2006).
Ellard, supra note 173, at 65. See also Veddern, supra note 173, at 4.
For this and other criticisms, see Italian Minister of Innovation and Technologies: Department for Innovation and Technology, Report on Digital Rights Management 42–43 (2004), http://www.innovazione.gov.it/ita/normativa/pubbl icazioni/digital_rights_management.shtml. See also Kur, supra note 173, at 823.
Is important to underline that, “[c]ounterfeiting and piracy are generally accompanied by deliberate cheating of the consumer as to the quality he is entitled to expect from a product bearing, for instance, a famous brand name, since counterfeit or pirated products are produced without the checks made by the competent authorities and do not comply with minimum quality standards. When he buys counterfeit or pirated products, the consumer does not in principle benefit from a guarantee, aftersales service or effective remedy in the event of damage.” See European Union SCADPlus Service, supra note 183.
Id.
“I fear the Greeks, even when they bring gifts.” Vergil, Aeneid, Book II, line 49 (Oxford Univ. Press 1969).
See European Commission, IPR Enforcement Directive Gets Go-Ahead: Counterfeiting and Piracy, Single Market news, July 2004 at 10, available at http://europa.eu.int/comm/internal_market/smn/smn34/index_en.htm.
Council Directive 2004/48, art. 7(1), 2004 O.J. (L 157) 65 (EC).
Council Directive 2004/48, art. 8, 2004 O.J. (L 157) 67 (EC).
Council Directive 2004/48, art. 9, 2004 O.J. (L 157) 70 (EC).
See Ellard, supra note 173, at 68; Kur, supra note 173, at 825; Veddern, supra note 173, at 5.
Ellard, supra note 173, at 71.
For example, in Italy, the so-called Decree “Urbani” — “Interventions to oppose the illegal electronic circulation of audiovisual material, and to support film and entertainment activities” (Decreto 72/04), gave rise to a fervent controversy because, in its very first version, it distorted the distinction between violating copyrights for commercial and for non-commercial purposes, overturning the previous legal system. The Decree was converted into law, as amended by Law No. 128 of May 21, 2004 published in the Official Gazette of the Italian Republic No. 119 of May 22, 2004, and it went into effect on May 23, 2004. One of the goals of the provision is to fight electronic piracy. In this sense it was greatly opposed by the Internet Service Provider associations and telecommunications firms that, while agreeing with its ultimate objectives, felt that the system of safeguards the decree introduces for digital media copyrights is particularly repressive and disproportionate. Recently the law has been amended again by the law No. 43 of 31 March, 2005 published in the Official Gazette of the Italian Republic No. 75 of April 1, 2005. For some criticism of this law, see Calovi & Lucchi, supra Pirateria Musicale: Tecnologia e Diritto, 7/8 Stud. Iuris 1027, (2004) note 101. See also Italian Minister of Innovation and Technologies: Department for Innovation and Technology, Report of the Interministerial Committee on Digital Content in the Internet Age, 33 (2005), http://www.mininnovazione.it/eng/intervento/allegati/rap_cont_dig.pdf.
See Ellard, supra note 173, at 67; Veddern, supra note 173, at 4.
See Kur, supra note 173, at 821. The final version of the Directive, in fact, includes only civil measures and remedies while the proposal to harmonize criminal proceedings and penalties was rejected.
See Bates, supra note 173, at 248.
Congressional Budget Office, supra ch. 1, note 96, at 14.
See Lichtman & Landes, supra note 159, at 402.
See Kur, supra note 173, at 826. One of the most famous European cases in this direction was LICRA v. Yahoo!, Tribunal de Grande Instance de Paris [T.G.I.] [court of original jurisdiction] Paris, Nov. 20, 2001, available at http://eff.org/legal/Jurisdiction_and_sovereignty/LICRA_v_Yahoo/20001120_fr_int_ruling.en.pdf. U.S. court will not uphold French censorship ruling against U.S.-based company for speech that is legal in the United States: in fact this ruling contrasts with section 512 of the DMCAand was not enforced in the United States due to First Amendment concerns. See Marc H. Greenberg, A Return to Lilliput: The LICRA v. Yahoo! Case and the Regulation of Online Content in the World Market, 18 Berkeley Tech. L.J. 1191 (2003); Lackman, supra note 124, at 1177. The same approach could be found in a German case in which CompuServe was found liable under German criminal law for the distribution of child pornography over the internet. See Amtsgericht München Geschäftsnummer: 8340 Ds 465 Js. 173158/95 (1998), available at http://eff.org/legal/Jurisdiction_and_sovereignty/LICRA_v_Yahoo/20001120_fr_int_ruling.en.pdf. (unofficial English translation available at http://www.cyb-http://www.cyber-rights.org/isps/somm-dec.htm). Some similar approaches could also be found in previous decisions of Italian courts: Tribunale di Napoli, Ordinanza 8 August 1996 (comparing, in terms of liability, a service provider to a newspaper’s director), 1 Giustizia Civile, Vol. XLVIII, January 1998 at 259, and, more recently, Tribunale di Catania, Sentenza 29 June 2004 (distinguishing the liability for content providers and service providers), available at http://www.interlex.it/testi/giurisprudenza/ct040 629.htm (last visited May 1, 2006).
Council Directive 2000/31, On Certain Legal Aspects of Electronic Commerce in the Internal Market, 2000 O.J. (L 178) 1 (EC).
For a complete overview of the Directive, see Rosa Julià-Barceló & Kamiel J. Koelman, Intermediary Liability In The E-Commerce Directive: So Far So Good, But It’s Not Enough, 4 Computer L. & Sec. Rep. 231 (2000).
See Kur, supra note 173, at 826–27 (“As liability of ISPs seems to be confined in most of the crucial cases to what is set out in the e-commerce directive, the practical consequences may materialize primarily in the transport business.”).
By sheer coincidence, the European Parliament’s Rapporteur of the new intellectual property enforcement directive is Janelly Fourtou, wife of Jean-René Fourtou former top manager of Aventis and currently the CEO of Vivendi Universal, the media giant that is the biggest holder of intellectual property rights worldwide. See File Swappers Avoid Home Invasion, BBC News (UK ed.), Mar. 9, 2004, http://news.bbc.co.uk/1/hi/technology/3545839.stm.
John Perry Barlow, Why Artists Oppose the EU Intellectual Property Rights Enforcement Directive, at http://www.ipjustice.org/CODE/Barlow_stmnt.html (last visited May 1, 2006).
See IPjustice, supra note 182.
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(2006). Intellectual Property in the Digital Age: Regulation through Law. In: Digital Media & Intellectual Property. Springer, Berlin, Heidelberg . https://doi.org/10.1007/3-540-36543-5_3
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