European Publishers Council. "Hamburg Declaration Regarding Intellectual Property Rights." Berlin: European Publishers Council. June 25, 2009.

This brief statement from the European Publishers Council (EPC) argues for "urgent improvements in the protection of intellectual property on the Internet." Without providing an answer to the problem or even asserting a path toward improvement of the situation, the statement simply places the onus of blame on sites that index their content. Meanwhile, the statement applauds national and internation governments for their efforts to protect international property.

Practically speaking, this statement is fairly ineffectual. Google's response has been essentially, "Go ahead and stop us from indexing your content" – a response that clearly demonstrates how vital news aggregation is to online media. Without offering a solution that will help users find content online while also crediting the correct sources, the EPC doesn't have much weight to throw around. This statement, instead, serves as a thermometer of the rising tension between investigative journalists and news aggregation websites.

Klang, Mathias,"The Digital Commons: Using Licenses to Promote Creativity."

            The paper beings with the concept of property as "mine", which at an early age is always contrasted with the concept of sharing. The new digital age tests out currently property regulation, since things are now copied with ease. Importantly, "that which is owned is no longer simply the item itself but the privileges which it provides to the owner". How, then, do we reconcile property rights and the public domain (the commons)? Property law in Western civilization tends to bestow all rights onto a single person. He defines ownership as a "collection of rights which complement each other and grant to the owner the authority to legitimately enforce conditions". The focus on possesion complicates the property law when dealing with intagible objects.

             Klang offers the differing views people have of the commons, citing sources as far back as Aristotle and as recent as Lessig. The first, and considerably widespread, is the belief in the "tragedy of the commons". The second argues that the idea of the tragedy is false since it does not consider the environment in which the commons exists. The commons itself is a considerably vague term (consisting only of notions of property and sharing), and the public doman is defined only as what it is not (it is not legally protected intellectual property). According to Klang, what the public domain is "is our collective culture". He continues to explain the basics of the current copyright law and how owning the content of something limits the creativity of others. Creative Commons was developed to help ensure an ease of sharing and the creativity that the commons encourages. He explains, as most do, the basics to how Creative Commons licenses work, concluding that though copyright is a tricky game, "we can also be certain that we will always need a commons or a public domain from which we can create and recombine into new culture for us to enjoy".

             This article provides a great overview of the debate that currently surrounds copyright and Creative Commons, extending into the idea of the commons itself. As we saw, there are those who believe that the commons is nothing but a vast wasteland or an "overgrazed pasture", which my project hopes to discredit by emphasizes the good things that have come out of the commons. There are others who believe in the benefit of the commons, taking into consideration the situation in which they exist and the fact that the web allows for social cohesion and trust among those involved. It is this view that conforms to the models that I expand on, showing the many different ways that online communities have been affected by the commons and vice versa. Importantly, this article explain Creative Commons licenses as well and helps to illuminate the debate about property by offering definitions of terms that are really, less than clear in the law today. It really is the basis for this project.

 

James Boyle, an advocate for the public domain, writes in his first chapter, the importance of intellectual property and how it is supposed to not only create incentives for innovation but also to create feedback that, “dictates the contours of information and innovation production”. Boyle recognizes that copyright law is intended to allow an artist to make a living if their works are able to be protected by copyright, however, the extent of the copyright is what he critiques. He writes, “the rights that were supposed to be limited in time and scope to the minimum monopoly necessary to ensure production become instead a kind of perpetual corporate welfare- restraining the next generation of creators instead of encouraging them”. Boyle believes that the extension of copyright is in the favor of large corporations who wish to seek profit rather than seek creation, which is the basis for the copyright law. He continues to write that he believes that the goal of the system (protection laws as a whole) should be monopolized only as long enough to provide incentives and then should be released into the public domain so that the public can benefit as well. He also points out that for most owners make all the money they will receive within five or ten years and that the remaining years are of little use. Another point Boyle also makes is that there are many works that have unidentified copyright owners or owners that just cannot be found which can be difficult for libraries who need permission to reproduce that material and therefore cannot if they cannot find the owner. This he believes is harmful to the public and does not allow them access to something that one may have permission to use but simply cannot get that permission due to the lack of information about the owner. Boyle argues that the extension of copyright law was lengthened without any evidence that it would encourage innovation.
    James Boyle’s argument for the protection of the public domain is convincing and it is convincing as my opposing argument for my paper. He provides an argument unlike other arguments that I have found because he not only discusses the corporate perspective but also the length of time that an owner actually receives payment for his work under copyright law. His argument is important to my paper because it provides a counter-argument that is strong and concise.

This article explains the problems of converging such laws as copyrights laws and trademark laws in terms of defining whether or not characters can be protected by these laws. These characters can be protected because they take on a life of their own, however the extent of the protection is in question. With regard to copyright, copyright doctrines of the idea/expression dichotomy and fair use are of importance. Helfand writes, “owners and creators seek to wrap their fictional characters in a net of invulnerability- a net created through an artful interweaving of copyright, trademark and unfair competition laws”, and it is this protection which allows large corporations to profit off of characters. Helfand’s main argument is that the courts have merged its tests, reasoning and language used in determining infringement, in order to arrive at a single approach to recognizing character infringement rather than separating each approach. This he believes, if it goes unchecked, will “dilute the significance of a limited copyright term and hence make fewer characters available for ‘unauthorized’ expressive uses”. He goes on to express that the goals of trademark and unfair competition law no longer become used the way they were intended to be used and that it focuses it solely on whether or not characters are similar, or if a character’s reputation is harmed by the unauthorized use rather than looking at the likelihood of consumer confusion. With regard to Mickey Mouse, Helfand touches on the Walt Disney Productions vs. Air Pirates case, noting that Mickey Mouse is the story being told which called for the mingling of the elements of copyright infringement with trademark infringement because Mickey Mouse has “achieved a high degree of ‘recognition’ and ‘identification’”.
    This article is important to my paper because it questions not the extension of the copyright act, which I have already touched on in other articles, but expresses the importance of keeping boundaries between different types of protection laws. If these laws continue to be merged and lack identifying main causes for such laws, then characters such as Mickey Mouse will continue to be protected in all ways which will continue to further it’s time spent under protection laws including copyright laws rather than entering the public domain. This argument is in opposition to my thesis and provides a different perspective.

     This article discusses the legal framework in which copyright cases are debated and decided. Geller begins by describing the basis of “territoriality” and how it is derived from the international system of nation-states and clear boundaries. The author admits that this definition is highly problematic when dealing with cyberspace and transfers of data that cut across borders. He then goes on to discuss the variations in each country’s laws regarding cyberspace copyright infringement and how this often leads to inconsistent judgments. For example, in a case that involves multiple countries, a court may award infringement compensation within the conservative limits of a particular country’s legal system. At the same time, it might use justification from another country’s legal code to grant a severe punishment. Geller concludes that the most effective way of combating international intellectual piracy is through a standardized legal code that eliminates such gross inconsistencies.
     This paper is very valuable for the question that I am trying to answer, because it shows the legal perspective and legal limitations of the prosecution of international copyright infringement cases. The Internet operates in a borderless context and if the international community wants to regulate online copyright infringement, multinational institutions needs to modify their framework. Similarly, if the ACTA is to be effective, it should not be based on a borders and territoriality. The paper also demonstrates that the ACTA will merely add another set of rules to the already complicated international legal network. Nevertheless, the paper fails to propose a way to iron out the inconsistencies in legal codes around the world. Perhaps the ACTA is a valuable multinational forum but its focus should be shifted to addressing the problems within the existing legal system and not creating new laws.

Sprigman, Christopher. "Fashion Copyright, 'Corruption,' and the Unheard Consumer." Public Knowledge Blog. http://www.publicknowledge.org/node/1404. February 20, 2008.

Christopher Sprigman, author of the article, "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, wrote this blog, which elaborates on the common corruption of the intellectual property lawmaking process. More specifically, he argues that fashion is fueled by the copying. Yet the CFDA, which is run by a select few elite designers, is advocating a stronger IP for fashion designs. The problem though, is that the CFDA is only run by a small number of high-end designers, and the majority of the other designers have no say in this. Furthermore, the CFDA pursues similar goals as famous industries in Hollywood becuase they give a large amount of money to them. This is why there are so many Congressman in favor of a stronger fashion IP - not becuase it is the right thing to do, but because they are given money for it. Therefore, this blog focuses on the Congress aspect of fashion copyright.

Although this source is a blog, the author, who is also the author of another one of my very important sources, makes many good points about why certain individuals strive for a fashion copyright, even though it may not be the best decision. In particular, the author talks about the influence the CFDA receives from pursuing a stronger IP, although it does not represent most designers' views. Therefore, this blog will provide me with more reasons explaining why it is wrong to place a copyright on fashion. I will also be able to utilize many of Sprigman's statements in the blog to support my thesis.

Raustiala, Kal and Sprigman, Chris,The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. Virginia Law Review, Vol. 92, p. 1687, 2006; UCLA School of Law Research Paper No. 06-04.

This paper is extremely informative in that it addresses both sides of fashion copyright, whereas most other papers point out only one side of the argument. Moreover, it explores the question of why other major industries have obtained and used powerful IP protections for their products, while the fashion industry is for the most part still ineffective yet very economically successful. First, the paper argues that there should be an effective copyright on fashion because it protects the designers' creativity. However, it also argues that a weak IP actually helps the fashion industry in its innovation. Specifically, the terms "induced obsolescence" and "anchoring" are mentioned to explain that copying is actually beneficial for the fashion industry and in fact promotes fashion.

I will be able to refer to this article a great deal when writing my own paper because it explains how the fashion industry’s piracy paradox works and explores how copying plays an important role in the fashion industry’s innovation cycle. It also gives an ample of amount of history about fashion copyright, which is very important for my paper. Finally, it will help me to support my thesis because it talks about both sides of the argument. Therefore, in my paper, I will be able to address both sides of the fashion copyright problem and give reliable information to support either side, although ultimately, I will acknowledge that there should not be a fashion copyright.

Brighton, Sussex, England : Harvester Press Microform Publications, 1985.
GUIDE: Reference Folder #282, available from the Center for Research Libraries through Interlibrary Loan.
DESCRIPTION: The Center has received microfilm for the following parts: part 1: Arundel-Cotton Nero; part 2: Cotton Otho-Cotton Roll; part 3: Egerton-Lansdowne; part 4: Royal-Add. Roll.
Available from the Center for Research Libraries through Interlibrary Loan.

quoted in the Ecstasy of Influence

This commentary from Congress reveals that database protection and the pending Antipiracy Act should be carefully analyzed because there are numerous economic and societal issues at stake. The commentary depicts both the pros and cons of passing the Antipiracy Act in regards to collections of information, otherwise known as databases.

            One side of the argument points out that a large amount of time, money and effort is needed when an author constructs a database. Then it mentions, with today’s technologies, whole databases can be copied with one click of the mouse. Additionally, a negative outcome of this will be the creation of fewer databases by owners because of the risks of their works being stolen or copied.

            On the other hand, the commentary also notes the opposing side. Here, it states that over-protection is extremely dangerous because it may prevent the free-flow of information. This will put limitations on the availability of works and ideas. This, in turn, hinders the progress of culture, technology, and, most importantly, knowledge.

            The goal stated in the commentary from Congress is to restore the protection policy of databases without completely restricting the flow of information. This would require some application of the “sweat of the brow” theory, as well. Basically, their goal is to find the healthy medium between these two arguments. Additionally, at the conclusion of the note, it states that the Copyright Office believes that the Antipiracy Act is a positive piece of legislation, and that it will aid in promoting more information to the public.

            This is pertinent to the project because it accounts for both sides of the issue concerning copyright protection, as well as describing the Antipiracy Act, which would definitely have a huge impact on the fantasy baseball case if passed. It clearly points out the implications of, both over-protection, and no protection. This helps to establish the importance of database listings.

This journal article goes into detail over the issue of copyright protection for databases. With its review of the Feist Publications, Inc v. Rural Telephone Service Company, the author illustrates the requirements for a work to be protected. The article mentions that if pre-existing factual material does not originate from someone, then it is not able to be protected. It points out that in order for a work to be protected by copyright law, there must be some degree of originality. Therefore, databases, for the most part, are not protected under this. The only way a database can be protected is if the coordination or arrangement of the data is unique.

Furthermore, the author states that the Digital Millennium Copyright Act originally had a provision to protect databases, but subsequently, it was dropped at the last minute. Then he explains that this is because of the Feist decision in 1991, which limits database protection.

The article is very helpful in that it gives the details of the Feist case. Rural Telephone Service Company had originally copyrighted their white pages in their telephone books. Because the names were listed in alphabetical order, the court found that there was no degree of creativity. Therefore, despite their effort and expenses put into the work, the company failed to meet the requirements of copyright protection. After the case, the white pages were no longer protected.

Although this article does not have to do with the fantasy baseball conflict directly, the case clearly relates because both have to do with non-protected works. Databases and statistics are very similar, and both are in the public domain. The results of the case more than a decade ago still apply today, and are very transferable to the issue of ownership of baseball players’ stats.

Another key point from the article that helps oppose the MLB’s licensing and fees is the fact that the statistics do not owe its origin to Major League Baseball. They are like facts or events in history. The MLB is not the “author” of these statistics, rather they are part of the public domain free for anyone to include in databases like fantasy leagues.

This Supreme Court review talks about Feist Publications, Inc v. Rural Telephone Service, Inc and the issue of intellectual property. Mainly, while depicting the case, it focuses on Congress’ ability to permit copyright protection. It goes into detail about how the Feist case set the standard for the Intellectual Property Clause. Because the white pages of a telephone book were found to be uncopyrightable, this then forced revision of originality on all cases to follow. If authors want to protect their works, they have to, because of the Feist decision, pass all the requirements of creativity and originality.

            Also debated in the review was the definition of “original” works. This is thoroughly discussed in the composition. It proves, through description of the case, that a compilation of facts cannot be copyrighted. Additionally, this is very important because it states the opinions of the justices, including Justice O’Conner.

            To add to that, the review also points out that the decision of the case not only complicates the goals set out by the Intellectual Property Clause, but it also has a huge effect on how the courts should govern and control other forms of compilations, such as maps, computer programs, and the broadcasting of sporting events.          

            Also discussed is the “sweat of the brow” theory. This theory states that the amount of effort and money put into a work should be the reasons that govern protection under law. This is focused more on labor than originality. Another main point in the case that is brought out in this review is the use of the fair use doctrine. This proves that the only material taken from the white pages was raw facts.

            Evidently, the description of the Fesit v. Rural case and the issues brought pit in the courtroom transfer over to the issue of statistics ownership, as well. This is because the main reasons brought out in the case (intellectual property, fair use, originality, and the compilation of data) all can relate to the case between the MLB and fantasy baseball.

This journal article is centered around the issue of protection for databases in our technologically advanced society. Because it is so much easier to store and transfer information, data base owners are faced with the problem of a lack of protection. The article traces the process that the database status has gone through over the years. It talks about the original statutes from the Copyright Act of 1976 and what the law was like then. Then, it talks about the Feist case and then implications that followed.

            Additionally, it gives insight to what databases are and what exactly makes one qualify for protection. The article gives clear definitions of “original works of authorship,” and all the different reasons why or why not a database would be included in this. It says that databases are computerized “file cabinets” that contain pages of information. Then it states that they are protected if the work was created by arranging or coordinating the data in a unique, original way. Subsequently, this gives a clear picture as to what allows these compilations of data to be protected by copyright law.

            Furthermore, the journal article not only explains the Feist case, but also reports the outcome and the effects that ensue. It explicates how the court’s ruling has changed the way the U.S. deals with this kind of work and other types of work that are in the public domain. In addition, another effect mentioned is the Anti-Piracy Act. The article goes into great detail as to what The Act would permit. If passed, The Act would overturn the Feist decision and make big changes to the law today. Also mentioned are the possible penalties of not abiding to pending legislation, such as fines and imprisonment. Furthermore, the article states that the passage of The Act will be difficult because of how complex it is. The issue is so intricate that all previous efforts to change the law have failed.

            This composition is essential to the project because even though it doesn’t relate directly to the fantasy baseball case, it deals with the same type of work and the debate over copyright protection. Also, it shows a different side of the issue. It goes into detail about the pending legislation and how it would change the law. The most important aspect is the description of the databases and the qualifications of works of originality.

This is an article from the Wahab & Medenica law firm's media blog which deals with issues of intellectual property. This blog entry explains the significance of emerging laws in response to the growing trend of copying fashion designs. Designers have been trying even harder these days to protect their works and as a result Congress proposes a new method. The Design Piracy Prohibition Act proposes a limited three year term for fashion designs that commences upon whichever is earlier the date of publication of registration or the date the design is first made public.  Under this act the term fashion is defined broadly to include everything from handbags to footwear. The blog goes on to explain the current status of Copyright laws in regards to fashion design.  Two cases are presented in order to challenge the issue of the functionality hurdle which designers face when trying to protect their work.  The most important case is the Kieselstein v. Accessories by Pearl in which the court granted Kieselstein the right to copyright the design of the belt buckle. Even though this is a step in the right direction for fashion protection, there are no cases which deal with the protection of garments of clothing. The United States does not protect fashion designs but France and England do and this article suggest that the United States should follow their lead. The proposed Design Piracy Prohibition Act will follow in the steps of the E.U. regulation which currently protects fashion designs in the form of registered and unregistered community designs. This new act will address the copycat culture which has grown tremendously within the fashion industry. Even though the act will protect the original designer, it will severely restrict a designer's ability to emulate the styles of others.  The importance of this article to my thesis is the proposition of an alternate method of fashion protection, The Design Piracy Prohibition Act.  Even though this act has not been passed yet, the blog explains what might happen if it is passed as well as provides background information about the act itself.  

Baseball is a game of numbers, but whose numbers are they? This is the title of the article, and also, more importantly, the main question that provokes the discussion over the status of baseball players’ statistics. The article, published this past May in the New York Times, is important because it discusses why the MLB believes that they should have ownership over the statistics. The term ownership, in this case, refers to the licensing fees the League imposes on fantasy leagues. It mentions how Major League Baseball Advanced Media used to license out stats to dozen of fantasy operators, but now is only down to 7. They want to force these fees on companies such as Yahoo, ESPN, and CBS SportsLine, for not only control over statistics, but as another way to rake in money, as well.

            One of the key points in this article is that the MLB believes because these online leagues feature many baseball stars and information on their performances, this could have an effect on the reputation of players. They claim that players’ identities are being exploited. Additionally, they point out that stats are part of players’ images. This, in turn, poses the question: Who owns the connection between name and number when it is used for commercial purposes?

            Another aspect that stuck out was the point a lawyer representing one fantasy league made. He explicated that using baseball data for the public is no different than printing stats or results in a newspaper.

            This article is of great importance to the project because of the explanation of the MLB’s position. It gives the other side of the argument, and even uses examples of famous players to get the point across more strongly. Because it illustrates the other point of view, it helps in coming up with more reasons to counteract their argument.

This article describes the workings of fantasy baseball leagues, and gives the reader an idea of how the players’ statistics carry over to the internet. It is very helpful because it shows what exactly goes on in these leagues. It explains how the statistical measurements of a batter are computed to go up against the statistical measurements of a pitcher, and then, a calculation that weighs all of the two players’ factors determines whether the batter gets a hit or the pitcher strikes him out.

            Additionally, the article mentions how millions of Americans participate in fantasy leagues each year. Also, it describes how each member chooses from a list of players and they battle against other teams in the league.  Following that, some general information about fantasy leagues is given. Listed are other sports that have fantasy leagues, and how much baseball fantasy leagues are worth each year.

This general information gives great insight to what fantasy baseball leagues are like and how they are run. Clearly, this is very helpful to the project, because it provides a lot of general background information on these online leagues, which demonstrates how the statistics are used. To add to that, this helps to prove the point that the players’ statistics are part of the public domain and cannot be owned by the MLB or the Players Association.

Accordingly, the article also touches upon the case between CBC Distribution and Marketing and Major League Baseball. The case was settled in a St. Louis courtroom and the court ruled in favor of the fantasy leagues. It was decided that players’ names and numbers are part of the public domain mainly because of the First Amendment. This is very important to not only this project, but also to society in general because the court ruled that data is not subject to copyright. This will make big changes as our world becomes more and more digitalized and the workings of the internet need to be governed.

My project analyzes the dispute between Major League Baseball and fantasy baseball leagues this past spring, with the main focus on the statistics. Who owns baseball stats? Can they even be owned? The goal of this project is to illustrate that baseball statistics cannot be owned because they are just "facts." Just like events in history and phonebook listings, statistics cannot be someone's property. They are there for the public use. There is no degree of creativity or originality involved in the production of statistics, and therefore they cannot be protected by copyright law. This project discusses the case between the two organizations and show how the ownership of statistics should be dealt with.