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'Copyright Panic' Leads to Irrational Expansion of Rights

Drab trademark law spared similar legal tinkering, law review article points out

Release Date: February 23, 2007

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' technology.

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," they say.

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 appealing."

When these romantic notions are combined with fears of widespread digital theft you get "copyright panic," Bartholomew contends.

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," Bartholomew warns.

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