BUFFALO, N.Y. -- New digital technologies and broadband Internet
access have increased digital piracy of music, movies and other
creative products. But the threat of widespread digital piracy also
has produced "copyright panic," spawning an illogical expansion of
copyright protections in recent years, contends an intellectual
property expert at the University at Buffalo Law School.
"A lot of people in the legal community are concerned that
copyright protections have gone too far," says Mark Bartholomew,
visiting associate professor of law in the UB Law School.
This trend toward overzealous expansion of copyright law is
described in an article published in the current issue of Berkeley
Technology Law Journal. The article is co-authored by Bartholomew
and John Tehranian, associate professor of law at the University of
Utah S.J. Quinney College of Law.
Bartholomew and Tehranian describe the irrational expansion of
secondary liability standards in copyright law in the face of such
new digital technologies as MP3 players. This was illustrated
famously when the courts ruled that Grokster and Napster, creators
of peer-to-peer file sharing technologies, could be held liable for
illegal copying performed by users of the companies'
These rulings, Bartholomew and Tehranian say, have expanded what
once was a firm requirement of secondary liability: To be guilty of
secondary copyright infringement, companies must have received a
direct financial benefit as a result of the illegal use of a
technology by another party.
"In the past, money had to change hands to show secondary
liability, but with Napster and Grokster you had a hypothetical
future revenue stream," Bartholomew explains. "This represents a
dramatic expansion of the law."
In contrast, trademark law has not been subjected to a
broadening of secondary liability in recent years, even though
digital technologies pose just as much a threat to trademark
holders, Bartholomew and Tehranian point out. The divergent path of
copyright and trademark law has "created tremendous legal
uncertainty that threatens the investment in new technologies,"
In creating a double standard for copyright and trademark law
the courts appear to have been influenced by the "romantic nature"
of copyright law, Bartholomew says. "It's romantic to think about
someone writing the great American novel or producing a hit song,"
he explains, "and the people who appeal for protection of these
rights -- authors, movie stars, musicians -- are themselves very
When these romantic notions are combined with fears of
widespread digital theft you get "copyright panic," Bartholomew
Trademark law, on the other hand, rarely gets the Hollywood
treatment and has not succumbed to the same irrational behavior,
Bartholomew points out.
"Nobody feels so romantic about trademarks. These cases usually
involve big corporations, ad people and sales people who are not as
appealing of a plaintiff as a Carlos Santana or Don Henley. That's
why the court has been able to resist expanding trademark law."
Bartholomew and Tehranian worry that as new technologies emerge,
secondary liability laws will be further distorted. And that
trademark law eventually will be swept up in the panic.
Copyright law should be retrenched to match trademark law, they
argue. If not, a gap in intellectual property jurisprudence will
continue to grow.
"This leaves the law in an ambiguous state, and this uncertainty
threatens to stifle a wide range of legitimate business activity,"
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