Tag Archives: 2005

November 5 / All Articles, Copyright

“For Limited Times”: The Supreme Court Finds The Copyright Term Extension Act Constitutional In Eldred v. Ashcroft, But When Does It End?

“The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries …” [1]




Before the enactment of the Copyright Term Extension Act, [2] (hereinafter “CTEA”) the United States had a copyright term of author’s life plus fifty years, [3] or when there is no identifiable author, a copyright term of the earlier of seventy-five years from publication or one-hundred years from creation, [4] under the 1976 Copyright Act. This copyright term of the author’s life plus fifty years put the U.S. in conformance with global standards under the Berne Convention [5] and the World Trade Organization (hereinafter “WTO”)’s Agreement on Trade Related Aspects of Intellectual Property Rights [6] (hereinafter “TRIPS”).


In 1993, however, a European Union directive extended the copyright term to the author’s life plus seventy years. [7] The United States followed suit in 1998 with the Sonny Bono Copyright Term Extension Act, which, like the E.U. directive, extended the copyright term for an individual’s works by twenty years, resulting in a term of the author’s life plus seventy years. [8] It also extended the term for anonymous, pseudonymous, or works made for hire by twenty years, resulting in a term of ninety-five years from publication or 120 years from creation, whichever comes first. [9] The CTEA also applied retroactively, extending the term of existing copyrights. [10]


This retroactive extension of the terms of existing copyrights was challenged in Eldred v. Ashcroft, but the United States Supreme Court on January 15, 2003 held (in a seven to two decision) that this did not transgress constitutional limitations. [11] This article will examine the constitutionality of the CTEA, and will consider the question of when a limited time for a copyright term does end, under the U.S. Constitution. [12]…


Sue Ann Mota*

November 3 / All Articles, Copyright

Google’s Literary Quest In Peril

Recently, Google, Inc. (hereinafter “Google”), owner of the eponymous search engine, partnered with several libraries, in an effort to make their collections available for search on the Internet. This project has come under attack by The Author’s Guild (hereinafter “The Guild”). The Guild complains that scanning and uploading copyrighted works without the authors’ consent violates their rights under the Copyright Act.1 Google counters that its use of sections from the copyrighted works falls under the “fair use” doctrine described in the Copyright Act.2 However, the Guild notes that in order to use these sections, Google first reproduced the entire work, violating the rights to reproduction that are protected by the Act.3

The question is whether Google’s actions do indeed violate the copyrights of the plaintiffs or whether these actions are protected by the Fair Use Doctrine. Part II of this note will review the facts of this case and its prior history. Part III will discuss the law relevant to the dispute. Finally, Part IV will approach potential arguments for either side, addressing strengths, faults, and previous interpretations of the law….


Dr. Michael Goldstein*


September 30 / All Articles, Patent

Repairing The Bayh-Dole Act: A Proposal For Restoring Non-Profit Access To University Science

The Wide Scope of Federal Research Spending

The United States government invests billions of dollars every year in scientific research. Government agencies such as the Department of Energy, NASA and the Pentagon directly employ legions of scientists and engineers. The National Institutes of Health (NIH) funds a tremendous amount of biomedical research. Besides running its own labs, the NIH gives generous grants to hundreds of universities and medical schools, and to the thousands of research professors who fill them. The federal government today provides about 60% of the total research funding for America’s many prestigious research universities.1 In addition, the government pays private, for-profit contractors vast amounts of money to complete science-intensive projects on its behalf.

Though some government-funded research is theoretical “science for science’s sake,” even this “basic research” often leads directly or indirectly to practical developments. Research at American universities has facilitated products ranging from Gatorade to synthetic insulin.2 The fact that 71.6% of citations to papers in U.S. biotechnology patents are to government-funded research3 demonstrates the practical value of government research to the private sector.


Aaron Miller*

March 19 / All Articles, Computing

P2P File-Sharing: What The Supreme Court Has An Opportunity To Consider

When the United States Supreme Court hears Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (04-480) on March 29th, it has an opportunity to consider for the first time, the rights, responsibilities and liabilities of p2p network creators and their users, the content industry, and ISPs. Over 25 of the world’s largest entertainment conglomerates joined together in petitioning the Supreme Court for a grant of certiorari.1 Petitioners characterize this case as “one of the most important copyright cases ever to reach this Court. Resolution of the question presented here will largely determine the value, indeed the very significance, of copyright in the digital era.”2 Respondents agree that the stakes are considerable, observing that this “case raises a question of critical importance at the border between copyright and innovation: when should distributors of p2p software—a multi-purpose tool—be held liable for infringements that may be committed by end-users of the tool?”3


This case will review the Ninth Circuit ruling that p2p software providers do not have secondary liability for those copyright infringements possibly committed by actual direct users of the p2p software.4 The Ninth Circuit followed the paradigm set forth in Sony Corp. of America v. Universal City Studios, Inc.,5 which drew on the staple article of commerce doctrine from patent law.6 Under this rule, it is “sufficient to defeat a claim of contributory copyright infringement if the defendants showed that the product was capable of substantial or commercially significant noninfringing uses [and thus was a fair use].”7 The Ninth Circuit first followed this rule in the Napster cases.8 The court reasserted the Sony/(Betamax) rule in Grokster, concluding that since the p2p software was capable of substantial or commercially significant noninfringing uses, the copyright owners must show the software distributors had reasonable knowledge of specific infringing files.9 Relying on this, it found that since Respondents merely offer for download distributed file-sharing software (p2p software) that is capable of a myriad of uses, including downloading infringing and noninfringing content, no liability could attach as they (1) lacked knowledge of the infringing activity; and (2) did not materially contribute to the infringing conduct.10 Respondents offered nothing more than executable distributed file-sharing software; they provided neither support, nor storage, nor directory services that would have created a basis for secondary liability.11


Margo E. K. Reder*