The Collective Yar: Fallacies and Failure of Digital Copyrights in an All-Access Culture

Posted By: Drew Weigel

The notion that copyright, in part or in whole, might be an inadequate theory of property for digital media is not new. Some have responsibly argued that the statutory distinction between performance and distribution falls apart when applied to digital media, creating a false and unnecessary distinction between interactive and non-interactive digital communications. Others have gone off the deep end and argued that copyright itself had developed into collective brain damage, fostering a permission culture where expression in a digital era is diminished or completely silenced by fear of infringement. We’re going to descend even further into madness and explore why the heuristics of copyright law—inherently based in property traditions from nobody remembers when—fail to protect that which is demonstrably too elusive to be protected under the same theory. Continue reading


Does Internet Fan Fiction Violate Copyright Law or is Fan Fiction Protected by Fair Use?

Posted By: Julia Ketchum


Have you ever read a book or watched a movie and thought maybe it should have ended differently? Or have you wanted to see a copyrighted character interact in a new situation outside the normal tale? For fan fiction writers, using copyrighted characters and copyrighted settings to make a new story is an exciting way to show their fan appreciation for their favorite story. Fan fiction is defined by Merriam-Webster is “stories involving popular fictional characters that are written by fans and often posted on the Internet” and has been around for ages, even before the internet. Fan fiction can be based on any media from video games, plays, books, to even fan fiction written about real celebrities. With the rise of the internet, fan fiction is now easy and free to distribute to others on the internet thought such sites as,, and However, is fan fiction legal? Firstly, we will look at the exclusive rights copyright holders have over their own copyrighted product and whether or not any copyright rights are infringed by fan fiction. Next, we will look at the exception to copyright liability: Fair use. Looking at the factors of fair use, we will try to argue a position on fan fiction and whether or not it is protected by fair use. Overall, the factor of ‘transformative’ will determine if fan fiction is subject to copyright liability or if it should be considered fair use. Continue reading

Computer Software: The Transfer of Licenses Sale of Back-up Copies in the European Economic Area

Posted By: Timothy T. Emmart

The European Court of Justice (ECJ) recently held that it is an infringement of copyright to sell or transfer a physical back-up copy of a software program, when the original physical copy has been damaged, lost or destroyed. This ruling came after another ruling by the same court that created criteria for the lawful transfer of software licenses to third parties. The later ruling is in the same vein as U.S. copyright law, which allows the owner of a copy of a computer program to make another copy of that program for archival purposes and to sell or transfer that copy, along with the copy from which such archival copies were prepared. Continue reading

Playing Whac-A-Mole with Internet Piracy: Where is it Headed, and Will it Ever Be Stopped?

Posted By: Rob Pollack

For years, the movie and music industries have been plagued by internet piracy through websites like The Pirate Bay, BitTorrent and Torrentz who have given users the ability to download and stream millions of their favorite songs and movies, right from their computer for free. Copyright protection has been evaded so well, that many companies are left scratching their heads about what to do next. The New York Times, in an article on the subject, described this process as like that of the game Whac-A-Mole, except in this game of Whac-A-Mole, the mallet is “heavy and slow,” and when it hits one mole, hundreds of others appear. Sadly, (or joyously, depending on which side you’re on), this has become the reality in the digital world we live in, and with the genesis of 3-D printing, you might want to buckle your seatbelt because it looks like internet piracy might not be going away for a very long time.

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Protecting Innovation

Posted by: Michael Avila

April 20, 2015

Page_37_Digest_of_United_States_automobile_patents_from_1789_to_July_1,_1899_closeupArticle I, Section 8 of the United States Constitution provides Congress with the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries”. Through this statement the legitimacy of copyright and patent law was born, and the rights of these innovators were protected and codified under Title 35 of the United States Code. Recently the rash of so called “Patent Trolls” has reached epidemic levels has threatened this system and put many such innovators on the defensive as evidenced by Apple’s claim that they had been the target of over one hundred Patent Trolls in the three years preceding 2014. Continue reading

Pixel Police: DRM and Securing Photos Online

Posted by: Lauren Stewart

April 20, 2015

pad-lockA disturbing trend has emerged, primarily on Instagram, called baby-role playing. This is where a person, often a teenage girl, steals images of a child from the Internet, gives them a new name, and creates a user profile claiming the child as her own. Some even portray themselves as adoption agencies and followers request photos of specific babies they would like to adopt. Also labeled “digital kidnappers” the general reaction to this apparent fantasy role-play is that it is bizarre and horrifying. Worst, parents fear that some of these people might resort to more abusive or sexual fetish behavior. Once reported, Instagram will remove stolen photos pursuant to their terms of use and community guidelines. But parents are likely wishing they could prevent the thefts altogether.

Stealing photos is nothing new or surprising. Most people probably think that it is ok and that there is no harm in it. But baby role-play presents a chilling scenario where preventing digital photo theft seems more pressing. Without a doubt, stealing photos online is copyright infringement and if identified, a parent could file suit against a baby role-player. Ideally though, there should be a way, other than not sharing photos online, to prevent photo theft beforehand or to catch the thief when stealing occurs. Enter digital rights management. Continue reading

Does Unlocking On-Disc DLC Violate the Anti-Circumvention Provision of the DMCA?

Posted by: Kyle Sol Johnson

April 20, 2015

dmcaIncreasingly videogames are released alongside downloadable content (DLC) the adds some aspect or function to the underlying game. These may be packs of maps, new zones, new weapons and armors, or even entirely new missions. Often it is a combination of the above. Traditionally, DLC is offered some months, or even years when it comes to expansion packs, after the release of the original game. However, many games of late have been released alongside so-called Day One DLC that is immediately available for purchase when the underlying game is released. Some videogame developers have taken this a step further, including unlockable content on the original game disc itself and later selling consumers a key that will allow them to access the encrypted data.

This ‘disc-locked content’ has drawn copious amounts of ire and criticism from consumers and game journalists. Consumers feel that they have paid for the disc and should thus have access to everything on it as the owners thereof. These consumers claim that disabling the encryption to gain access to the locked content constitutes a fair use because it is a noncommercial use under §107 of the Copyright Act. Continue reading

They’re Shutting Down the Internet: The Responsibility of Internet Service Providers in Combating Piracy

Posted by: Macaulay Christian

April 20, 2015


The Pirate BayImagine that, for some time and on a fairly consistent basis, you download and listen to all of your favorite music through one or more torrent sites. Whatever your personal beliefs are, you do know that, legally speaking, what you are doing is wrong. Your Internet service provider has even sent you periodic letters informing you that your conduct is infringing on various copyrights and that you should cease your activities immediately. You’ve allowed these notices to pile up, not even bothering to open the latest ones. Then, something happens, something that hasn’t happened before—your Internet is shut off. After playing around with your router, you phone your provider, wanting to have your service reestablished. You are informed that you have been permanently disconnected from the Internet because of your repeated copyright infringement, at the request of the major record labels.

The thought is almost scary, if not only that your ISP could be compelled to permanently disconnect your service, going on in today’s highly interconnected world without regular access to the Internet is borderline unthinkable. It’s difficult enough for Millennials to try and conjure up conceptualizations of what life was like before the Internet, before computers. To have to navigate modern expectations of productivity, entertainment, and communication one must have access to the Internet.

The crux of the matter is what responsibility does or should ISPs have in policing copyright infringement committed by its subscribers on its network? In the United States, the answer to that question may rest in a lawsuit initiated against Cox, while in the case in Ireland may given big content a reason to hope. Continue reading

Does the Constitution Follow the Net?: The Digital Millennium Copyright Act, Free Speech, & Fair Use

 Posted by: Macaulay Christian

April 20, 2015

dmcaTake a moment to think about computers. There isn’t an aspect of daily life that hasn’t been at least touched, if not outright revolutionized, by the advent of the computer. They no longer mammoth machines existing within the confines of a single, massive space—they’re portable. You probably have a laptop or notebook, maybe that’s what you are using to read this right now but, in the modern era, you aren’t shackled to just the more traditional idea of a computer, you could just as easily be reading this from you smartphone. Others still could be making use of an iPad or other tablet computer. Common accessories are becoming embedded with computing capabilities from watches to wristbands. Even the home is becoming more and more connected: Refrigerators, thermostats, and home automation technology. Your pet might have a GPS chip implanted in case they get lost. Your car speaks to you and understands your oral commands. Computers are everywhere in the 21st Century.

To put this revolution in some perspective, once the computer became a consumer good, civilization set sail from the old, analog world for a new, digital one. But, just as the first colonists who came to the Americas learned, not everything that worked in the old world works with the rules of the new one. Principally, how to strike the appropriate balance between an 18th Century Constitution and the technological realities of 2015? Do some constitutional protections not exist when applied to the digital world? Continue reading

Is a Take Down a Taking?

Posted by: Chase Millea

April 20, 1015

dmcaUnder the Fifth Amendment to the Constitution, “private property [shall not] be taken for public use, without just compensation.” Traditionally we think of a government taking in the context of real property. If the government wants to knock your house down to build a highway, they are going to have to pay you (probably not as much as you wanted) for it.

Okay, so what about revenue-generating material on the Internet? For example, what about video gamers streaming their game play on websites like If the video game manufacturer files a takedown notice under the Digital Millennium Copyright Act (DMCA), and Twitch takes down the content in furtherance of obligations under the statute, does the video gamer get anything for having his or her product taken away? Continue reading