Seven years have passed since Congress enacted the Digital Millennium Copyright Act (DMCA), the statute which makes circumventing technological barriers to copyrighted works illegal. [1] In the meantime, the DMCA has been widely criticized, and, within the last two years, undergone a major change in interpretation by the Federal Circuit in Chamberlain Group, Inc. v. Skylink Technologies, Inc. [2] In Chamberlain, concerned that the DMCA had created an entirely new property right, the Federal Circuit added a new limitation to the scope of the DMCA. Chamberlain held that a plaintiff must prove a “reasonable relation” between access to a copyrighted work and infringement. What this “reasonable relation” means however, has yet to be defined.

The nature of the “reasonable relation” test goes to the heart of the DMCA and its impact on innovation. If the “reasonable relation” between access and infringement is too broad, the DMCA will stifle many ideas which build on protected works, because the public will be prevented from accessing works for the purpose of creating improved versions and interoperable products. Innovation depends in large measure upon building on the works of others. As Sir Isaac Newton famously said, “If I have seen farther than others, it is because I have stood upon the shoulders of giants.” [3] On the other hand, if the “reasonable relation” is too narrow, then the DMCA would prohibit too little access. Creative works in digital formats would be subject to massive piracy. Creators would then lose the profit incentive to create any works at all.

In this paper, I suggest six possible “reasonable relations:” 1) ‘but for’ causality, 2) reasonable foreseeability, 3) Sony‘s [4] substantial non-infringing use, 4) defendant’s intent, 5) vicarious liability, and 6) Judge Posner’s balancing approach in In Re Aimster. [5] I evaluate these possible “reasonable relations” in light of the policies underlying copyright law and the DMCA using the facts of Davidson & Associates v. Jung [6] as a test case. I show how these different possible “reasonable relations” would play out in the facts of Davidson because these facts demonstrate the complexity of digital technology. Moreover, Davidson illustrates the pitfalls and promise of the internet revolution.  In Davidson, the plaintiffs worried about mass piracy of video games they had invested millions of dollars to create. [7] Meanwhile, the defendants created an improved network on which to play the games [8] — precisely the type of innovation and creativity that copyright law is intended to promote.

The second part of this paper discusses copyright law and the DMCA. In the third part, I examine the interpretation of the DMCA in Chamberlain. The fourth part introduces Davidson and discusses the correct outcome given copyright law policies. I apply Chamberlain‘s interpretation of the DMCA to the facts in Davidson in the fifth part and discuss which “reasonable relations” would produce the right result in light of copyright law policies. Finally, I give my conclusions….

Zoe Argento

A set of recent patent infringement cases are primed to have major impacts and, some argue, inequitable effects on the current patent scheme in the United States. A problem has arisen concerning what kind of patent protection, or lack thereof, method and process patents should receive when certain steps of those methods or processes are implemented outside the U.S. Read literally, as the courts have, current law requires a method to have taken place in the U.S. for protection. But what results when a method or process patent is infringed partially in the U.S. and partially abroad? Should the patent receive protection by U.S. patent laws or has it not been infringed because the entire method has not been carried through in the U.S. from start to finish?

To illustrate the problem in a simple analogy, imagine a mother standing over the kitchen sink preparing dinner in full concentration. Her son and his friend sit in the middle of the kitchen floor playing catch with a ball. The mother, becoming aware of the game of catch, reprimands her son, telling him, as she has before, that the rule of the house is that catch is not to be played in the kitchen. She points to a list of rules hanging from the refrigerator that specifically states, “No catch in the kitchen.” The son waves his friend off through the kitchen door, until the son is throwing the ball from the kitchen to his friend in the living room and vice versa. Is the son still playing catch in the kitchen? Technically, he is not. A traditional game of catch requires two people, and there is only one in the kitchen. Thus, the son is not technically disobeying the rules.

Nonetheless, most mothers would override the written rule here, explaining to the son that his activities are meant to be included in the rule because any throwing or catching of the ball creates the same hazard. But what if the mother was bound to the rule on the refrigerator, however technically it was being read, and she could not reprimand the son further? Is the resulting restraint on the mother fair even though the son’s actions constitute, at best, an honest attempt to obey the rules or, at worst, a creative attempt to flout the rules on a technicality?

This is the problem facing the current U.S. patent regime with respect to process or method patents that are implemented internationally. Under this regime, a patented method is not considered infringed so long as a single step of that method takes place on foreign soil. [1] Thus, like the son who cleverly relocates his friend to the living room to avoid further trouble from his mother, alleged infringers are not technically infringing if they implement one or more steps of someone else’s patented method in a different country. [2] And like the mother who must respect the written rule on the refrigerator, courts have shown much deference to the rules that claim to deal with the extraterritorial application of patent rights, enforcing the current rule which allows this avoidance of infringement. [3] This seemingly inequitable result is one that stares U.S. patent law in the face as geographical borders erode making transnational infringement easier with each passing day….

Alejandro Valencia

Current trends in trademark law have not met the issue of deep linking with open arms. To date, there is a dearth of cases that touch on deep linking and trademark infringement. Cases such as Ticketmaster Corp. v. Tickets.com dismissed claims of deep linking as trademark infringement with little explanation, simply stating that deep linking itself is not a trademark violation absent “confusion of source.” [1] Yet, there is no case to set the boundaries at the other end of when deep linking would be trademark infringement; it can be implied then that the traditional tests of likelihood of confusion would most likely be applied to find an act of deep linking as trademark infringement.

However, the perils do not end for the website owner that is being deep linked from another website and having little means to stop this from occurring. Website owners that are being deep linked can also potentially face liability under the agency theory of apparent authority. Consider the following hypothetical.

CELL-X is a popular manufacturer and seller of cellular phones. In addition to distributing and also selling their products through authorized locations and CELL-X company stores, they operate and maintain a website. The website consists of a homepage and interior pages which contain information on the details of the different cellular phone models. Transactions of sales of cellular phones can also occur in the interior web pages of Cell-X’s website; Cell-X states in its purchase web page (and not on any other webpage such as the webpage of each specific model) that purchases via the internet will have an additional 90 days of warranty on top of the standard one year warranty. At the bottom of all the web pages, Cell-X has disclosed the statement, “CELL-X and its logo are registered trademarks.”

InterABC is a cellular phone distributor and re-seller. This company sells various brands of cellular phones, including Cell-X, and cellular accessories to the public. However, InterABC is not endorsed, authorized, nor licensed by Cell-X to sell Cell-X brand products. InterABC also operates and maintains a website allowing the internet consumer to browse and purchase the cellular phones InterABC carries. Specifically, InterABC deep links to Cell-X’s interior pages on all Cell-X cellular phone models and products.

Consumer Z is in the market to buy fifteen cellular phones for all his family members. By scouring the internet, Z finds InterABC’s website advertising cellular phones for a reasonable price. Z clicks on InterABC’s website hoping to find more information about Cell-X phones and clicks on the link to read more about Cell-X phone model 100A. This page lists the features of model 100A such as a four hour battery life, tri-band mode, a one inch color screen, and an additional one year warranty on top of the original warranty of one year. [2] There is another link that the Z can click on to read even more about model 100A; Z clicks on the link and realizes that the web page he just clicked to open is deep linked to Cell-X’s interior web page for model 100A; this page offers even more technical details of the cell phone such as measurements and accessories. Z is under the belief that InterABC is an authorized reseller of Cell-X products. Z is now quite sure that he wants to purchase Cell-X 100A cellular phones; in addition to the reasonable price that InterABC is selling the phone at, Z notices that buying the phones online comes with an additional one year warranty. Through a secured server, Z inputs his credit card and shipping information, and the cellular phones are subsequently shipped to him.

After one and one half years of use, two of Z’s Cell-X 100A phones abruptly stop working. Recalling that since he bought the phones from the internet, he has an additional one-year warranty in order to get them repaired or replaced. However, when trying to contact InterABC, he learns that they have since gone out of business. For Consumer Z, his next reasonable approach would be to contact Cell-X. However, Cell-X cannot honor Z’s warranty claim since it claims that it only offers an additional 90 day warranty. The statement that InterABC made on its website was false, and InterABC is not authorized by Cell-X.

The issue then becomes whether Consumer Z can hold Cell-X responsible for warranty claims under apparent authority. Since case law has never considered whether deep linking would ever constitute apparent authority, the next question to ask is whether the traditional cases of case law can shed any light on the issue.

Tan Pham*