Intellectual Property Protection in the Digital Age: Misappropriation & Clickwraps, Slides of Law

Download Intellectual Property Protection in the Digital Age: Misappropriation & Clickwraps and more Slides Law in PDF only on Docsity! Misappropriation and Clickwraps Docsity.com Agenda • Overview: state protection, preemption • INS v. AP • Updating misappropriation doctrine • Intro to Clickwrap contracts Docsity.com History • Cast of characters • Supreme Court and the progressive era Docsity.com Justice Mahlon Pitney (1858-1924) Docsity.com Oliver Wendell Holmes, Jr. (1841- 1935) Docsity.com Brandeis’ career: Corporate law to reform • Warren and Brandeis, Boston: the high- powered boutique of its era • Progressive reform movement: “the People’s lawyer” Docsity.com • Nominated by President Wilson in 1916; four-month confirmation battle, in which conservative forces within American industry and the bar fought furiously to defeat the nomination. Wilson stood by Brandeis, and reform groups of all varieties also backed the nomination, which the Senate finally approved in June. Docsity.com Progressive reform and the loaded term “property” • Gilded age (roughly 1865-1901): “property” as unquestionable entitlement; suggested private ordering, resistance to regulation • Progressive era (roughly 1890s – 1920s): dawn of the modern “administrative state” Docsity.com Docsity.com Weies Beldwar Meson os likerte Fila nen SPENCER TRACY — KATHARINE HEPBURN VAN JOHNSON ANGELA LANSBURY ADOLPHE MENION- LEWIS STONE FRANK CAPRA'S STATE OF ION - Docsity.com Majority – IPNTA 5th p. 967 • [I]t seems to us the case must turn upon the question of unfair competition in business. And, in our opinion, this does not depend upon any general right of property analogous to the common-law right of the proprietor of an unpublished work to prevent its publication without his consent; nor is it foreclosed by showing that the benefits of the copyright act have been waived. Docsity.com Holmes, concurring If the plaintiff produces the news at the same time that the defendant does, the defendant's presentation impliedly denies to the plaintiff the credit of collecting the facts and assumes that credit to the defendant. If the plaintiff is later in Western cities it naturally will be supposed to have obtained its information from the defendant. The falsehood is a little more subtle, the injury, a little more indirect, than in ordinary cases of unfair trade, but I think that the principle that condemns the one condemns the other. Docsity.com Brandeis, dissenting “If the property is private, the right of exclusion may be absolute; if the property is affected with a public interest, the right of exclusion is qualified. But the fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property.” Docsity.com “The general rule of law is, that the noblest of human productions-knowledge, truths ascertained, conceptions, and ideas-become, after voluntary communication to others, free as the air to common use. Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it. These exceptions are confined . . .” Docsity.com • Fly posts the Recommendations by sixty-five investment firms' research analysts, including the three plaintiff Firms. A typical Fly headline from 2009 reflecting a Recommendation by one of the Firms is “EQIX: Equinox initiated with a Buy at BofA/Merrill. Target $110.” Docsity.com Associated Press v. All Headline News Corp., 89 USPQ2d 2020 (S.D.N.Y. 2009) 89 USPQ2d 2020 Associated Press v. All Headline News Corp. U.S. District Court Southern District of New York No. 08 Civ. 323 (PKC) Decided February 17, 2009 Docsity.com Cause of action for misappropriation of hot news is viable under New York law and is not preempted by federal law, and such claim arises if plaintiff generates or gathers information at cost, information is time- sensitive, defendant's use of information constitutes “free riding” on plaintiff's efforts, defendant is in direct competition with product or service offered by plaintiff, and ability of other parties to free-ride on efforts of plaintiff or others would so reduce incentive to produce product or service that its existence or quality would be threatened Docsity.com Ancillary Issues • Agreement to arbitrate • UCC vs. common law of contracts • Sale vs license – crucial distinction – UCC vs. IP licensing law – 1st sale/exhaustion doctrine Docsity.com Netscape: assent issues • Communicator (browser): required assent before downloading • “SmartDownload” (plug-in) did not Docsity.com Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir.2002). We rule against Netscape and in favor of the users of its software because the users would not have seen the terms Netscape exacted without scrolling down their computer screens, and there was no reason for them to do so. The evidence did not demonstrate that one who had downloaded Netscape's software had necessarily seen the terms of its offer. Docsity.com “ProCD is about the law of contract, not the law of software. Payment preceding the revelation of full terms is common for air transportation, insurance, and many other endeavors. Practical considerations support allowing vendors to enclose the full legal terms with their products.” Docsity.com The question in ProCD was not whether terms were added to a contract after its formation, but how and when the contract was formed—in particular, whether a vendor may propose that a contract of sale be formed, not in the store (or over the phone) with the payment of money or a general “send me the product,” but after the customer has had a chance to inspect both the item and the terms. ProCD answers “yes,” for merchants and consumers alike Docsity.com Notice of terms? Gateway’s ads state that their products come with limited warranties and lifetime support. How limited was the warranty—30 days, with service contingent on shipping the computer back, or five years, with free onsite service? What sort of support was offered? Shoppers have three principal ways to discover these things [ask, request K terms, or wait for the product to arrive].” Docsity.com Judge Frank Easterbrook Docsity.com SELECT PHONE is on 5 CDs, contains 90 million listings from both White and Yellow Pages of 77.8 million residential and 13.8 million businesses. You can search for listings on any field: name, address, city, state, ZIP, area code, business heading and SIC code. It offers reverse search capability, matches addresses or phone numbers with names and provides counts by business heading or SIC code. And its fast - just a second or two to search for the listing you want. In addition you have unlimited downloading of listings into a database, word processor, spreadsheet or contact management program. The value and utility of this should be apparent to any salespeople, fundraisers, research and market testing firms, . . . Docsity.com SMALL FRY GO ONLINE – 11/1995 Technology lets even tiny businesses outmarket the giants Pro CD Inc., Database America, Cole Publications (a unit of MetroMail), and Dun & Bradstreet all sell nationwide telephone listings on compact disks, including names and addresses, for as little as $175. The CDs let you search by name, zip code, and, in some, by income or business type Docsity.com What term is at issue in ProCD? Docsity.com What term is at issue in ProCD? • “No commercial use” Docsity.com 7th Circuit Holding • When is K formed? • Who is offeror? What is mode of acceptance? Docsity.com Price Quantity Demanded (000s) D $5 100 $3 170 Price Discrimination Hardcover Softcover Docsity.com Total Revenue Without Price Discrimination With Price Discrimination $510 $710 Docsity.com Price Quantity Demanded (000s) D $5 100 $3 170 Price Discrimination Commer- cial Users Non- commercial Users Docsity.com Freedom of Contract in ProCD • What happens if we prohibit “rolling K formation”? Docsity.com Freedom of Contract in ProCD • What happens if we prohibit “rolling K formation”?  All sorts of beneficial K’s will be prohibited; inconvenience for many buyers will result Docsity.com K Analysis • UCC 2-204 policy: K may be formed in any manner . . . • 2-606: acceptance of goods (shows that terms in form Ks may not be the final step in acceptance) • UCITA draft – not persuasive for Easterbrook Docsity.com