D.J. Girl Talk is one of the budding artists in the music industry today, and his instrument is a laptop. D.J. Girl Talk (hereinafter also referred to as “Girl Talk”), whose real name is Gregg Gillis, “samples,” or uses short clips, from other artists’ songs to create popular dance music. Girl Talk’s songs combine old, contemporary, and downright odd genres of music. Within these different genres, he samples from artists such as Clipse, Kelly Clarkson, and Hot Chip. At his live concerts, D.J. Girl Talk leads massive crowds who dance non-stop to his songs. Girl Talk’s songs fill the concert with energy and sometimes end with Girl Talk shirtless, or even stripped down to his boxers. While Girl Talk has had musical success creating songs from samples of other songs, some artists and producers believe that D.J. Girl Talk is using these samples illegally. This has caused iTunes and a CD distributor to stop carrying Girl Talk’s album, “Night Ripper,” due to growing legal concerns.

United States copyright law generally requires that artists obtain permission from the copyright owner before using a work. Still, D.J. Girl Talk believes that his works are valid under the “fair use” exception of copyright law. Girl Talk believes that the Fair Use Doctrine applies because his samples are too brief and his music sounds so different from the songs he samples that it is unlikely to affect the sales of those songs. Due to little statutory guidance and inconsistent court rulings in the 1990s and 2000s sampling cases, there is still a great deal of confusion as to what constitutes valid or invalid “sampling” practices. This has led many commentators to suggest ways of solving this dilemma.

This article addresses whether digital sampling is copyright infringement and concludes that copyright law should be amended to fix the uncertainty surrounding copyright as it relates to digital sampling. Part I provides a background on digital sampling. Part II analyzes whether D.J. Girl Talk’s musical works fall under the current exceptions to copyright infringement. Part III proposes a change to copyright legislation that gives the music industry more guidance. Part IV concludes that D.J. Girl Talk’s compositions fall under the exceptions to copyright infringement, but that adoption of the proposed legislation will be more in line with the goals and fairness sought for copyright law.

*Christopher Collie & Eric Gorman

The dawn of peer-to-peer networks and the subsequent rise of file sharing over the Internet have proved to be a considerable threat to the revenues of the Recording Industry Association of America (“RIAA”) and the international music community.  While early music downloading across peer-to-peer networks on the Internet was largely limited “to college students with access to fast pipes and techno geeks sufficiently driven to search the Net for the latest Phish bootlegs,”[i] the market for illegally downloaded music taken from file sharing websites has expanded to astronomic proportions and continues to do so even at present.[ii]  The results of this expansion proved doubly costly to the RIAA, as the record industry has suffered reduced music sales and has simultaneously attempted to wage a multifaceted war against file sharers and their networks.[iii]  Yet, the RIAA’s strategies have ultimately damaged the association’s reputation and also the music industry generally.  Due to their choice of targets, “[t]he media and public have cast the RIAA as a villain that sues single mothers and even the deceased.”[iv]  Despite pursuing their cause even to the extent of suffering harms to their reputation, the RIAA’s efforts have proven largely fruitless as record sales have continued their downward trend.[v]

The failure of the RIAA to properly handle the issue of file sharing is evident from the record industry’s depressed financial statistics[vi] and the general public’s outcry against the association’s tactics.[vii]  This Note addresses some of the alternative (and potentially more popular) methods available to the RIAA in its efforts to overcome the rise of illegal file sharing…

Andrew Eichner

Cloud computing, a computer networking model that gives users on-demand access to shared software applications and data storage, [1] is becoming increasingly popular among businesses and individuals. For example, if you use Google’s Gmail [2] for your email and calendaring, or Snapfish [3] for your online photo sharing and storage; or if your business remotely stores data with a third-party server provider like Salesforce, [4] or uses Windows Azure [5] to create and host web applications and services, you are already “floating in a cloud.” To provide guidance to those companies working within a cloud – *2 or those considering utilizing cloud computing – this article surveys U.S. cases that have direct, substantive implications for cloud users. These cases implicate issues of personal jurisdiction, privacy rights, e-discovery, and copyright infringement. [6] We also take a brief look at the newest case on the cloud computing horizon, Google v. The United States. [7] …

Fernando M. Pinguelo** & Bradford W. Muller***

The Food and Drug Administration’s (“FDA”) regulation of drugs and medical devices impacts the everyday lives of Americans in both noticeable and inconspicuous ways. [1] For example, a recall of contaminated food or adulterated pharmaceuticals illustrates how the FDA noticeably affects impacts our everyday lives. [2] Additionally, unobservable consequences springing from the overlap between FDA regulations and patent law also affects the lives of Americans by stimulating market competition and providing incentives for medical research and development. [3]

Attempting to promote continued innovation in medical science, while at the same time provide the public with “more low cost generic drugs,” the U.S. Government amended both FDA regulations and patent laws through the Price-Competition and Patent Term Restoration Act (“the Act”). [4] The Act, commonly known as the Hatch-Waxman Act, consists of two sections, Title I and Title II, which function in tandem “affect[ing the] introduction procedures and patent requirements for certain kinds of generic new drugs.” [5] Title I of the Act provides for a new route of FDA regulatory approval for generic drugs (also known as “generics”), the Abbreviated New Drug Application (“ANDA”). [6] Congress’s intent behind the ANDA process was to allow generic drug manufacturers to get generics on the market sooner and at lower costs. [7] Title II of the Act made several amendments to the U.S. patent laws regarding how they apply to federally regulated products. [8]

The “safe harbor” provision of 35 U.S.C. § 271(e)(1) is a patent law amendment created by Title II of the Act. [9] Utilized in conjunction with the ANDA provision in Title I, Congress believed § 271(e)(1) would aid generics in obtaining market approval “between 18 months and 2 years earlier.” [10] Under § 271(e)(1), the otherwise infringing use of a “patented invention” is immunized from liability if the infringing use is “reasonably related” to the development of data for FDA approval. [11] Although § 271(e)(1) appears to lend itself to a fairly straightforward interpretation, its scope has been the source of much judicial and commentator debate over the last two decades. [12]       Since the enactment of § 27(e)(1), the Supreme Court has weighed in on its scope only twice. [13] In both cases the Court held the plain language and legislative intent behind the Act indicated that § 271(e)(1) was supposed to immunize a broad scope of inventions and actions, related to FDA approval, from patent infringement. [14] Despite the Court’s broad holdings in both cases, the United States Court of Appeals for the Federal Circuit (the “Federal Circuit”) recently narrowed the scope of § 271(e)(1) with its holding in Proveris Scientific Corp. v. Innovasystems, Incorporated. [15] The Federal Circuit employed a narrow test, termed the “perfect product fit” analysis, for determining what constitutes a “patented invention” under § 271(e)(1). [16] Under Proveris’ perfect product fit analysis, in order for infringement of a patented invention to be immunized by § 271(e)(1), the “patented invention” must be eligible for a 35 U.S.C. § 156(e)(1) patent term extension. [17]

While Proveris may appear to comport with sound patent policy, the reasoning of the Federal Circuit fails to properly consider Congress’s overall purpose for the Act. Additionally, Proveris’ new interpretation of “patented invention” flatly contradicts the meaning previously assigned to the statutory phrase by the Supreme Court in Eli Lilly & Company v. Medtronic, Incorporated. [18] Further, the Federal Circuit misinterprets Lilly’s discussion of statutory symmetry (between § 271(e)(1) and § 156), through which the Court intended to broaden the § 271(e)(1) term “drugs,” not narrow the phrase “patented invention.” [19]

By reducing the scope of “patented inventions” within § 271(e)(1) to only inventions comporting with the “perfect product fit” analysis, Proveris has drastically altered the function of § 271(e)(1) and potentially impairs the ability of generic manufactures to fully utilize the ANDA process created in Title I of the Act. [20] Adherence to Proveris’ “perfect product fit” rule risks establishing loopholes that potentially allows patent holders of pioneer drugs and medical devices to delay generic manufacturers from bringing less expensive generics to the market. [21]

This Note critiques the Federal Circuit’s recent narrowing of § 271(e)(1) in Proveris. Part I provides a historical overview of FDA regulations on drugs and medical devices, the promulgation of the Act, and judicial interpretations of § 271(e)(1). Part II furnishes an in-depth review of the Federal Circuit’s holding in Proveris, and discusses the reasons cited as supporting the court’s narrowing of § 271(e)(1). Part III analyzes the Federal Circuit’s “perfect product fit” test, found to control the scope of § 271(e)(1), and discusses how the “perfect product fit” test contradicts the judicial precedent cited by the court as supporting its holding. Part IV illustrates how Proveris operates contrary to Congress’s intention for the Act, and suggests a “sliding scale” analysis for Federal courts when faced with a § 271(e)(1) defense….

Duane C. Marks*