This book is a guide – as its title might suggest – to all things digital when it comes to music.  It serves as not so much an analysis on copyright in the music industry as a whole, but rather as a set of legal and technical guidelines so that one may participate in the consumption and production of such music without infringing on copyrights.  In other words, it describes for the reader all of the ins-and-outs of the digital music industry so that one may know where in the law his practices may reside. 

            Hill’s book has entire chapters devoted to the assessment of what is legal, what is not, and how to go about participating in said sanctioned musical practices.  He identifies a list of acceptable file-sharing websites, and offers his own commentary on why others are forbidden, as well as why these are acceptable.  The book begins with a basic introduction into the technologies and methods used in the digital realm and then goes deeper to list available services and to comment on the merits of various practices.  His advice is clear and he condones no illegal activity, yet he makes clear why certain people might be motivated to circumvent copyright laws in terms of digital music.  He further lists specific file types and programs that are used in these practices and he identifies useful software.  He finishes the book with another broad chapter about the “Conscience of Digital Music” as a whole as well as his prediction of the future of the industry.

Hill’s technological knowledge is a key aspect of this book that has allowed me to delve deeply into the details of digital music production and sharing.  He explains these issues in simple terms, while still conveying the complexity of their implications.  In writing this final paper, the technological terms and details from this book will provide much-needed expertise in a field that I am not necessarily well-versed in.  In my analysis of the acceptability of digital sampling, I must first know how the practice works and what techniques are involved; this book offers me this knowledge, which is key to reaching a conclusion in my final paper on what sampling is acceptable within copyright law.

Katz also examines the realm of digital sampling, but he does so with a keen detective’s eye, looking at the practice from the outside-in.  He uses three case studies to show the main uses and techniques employed with digital sampling.  First of which is a “song” created by Paul Lansky with recordings of human voices speaking random words entitled “Notjustmoreidlechatter.”  The complicated issue of speech and music is addressed through this first instance of sampling and Katz identifies the specifications and implications of either one.  Secondly, he compares two pop songs, Camille Yarbrough’s “Take Yo’ Praise” and Fatboy Slim’s “Praise You,” which uses bits of the former in its creation of the latter.  Finally, he breaks down the numerous sampled bits in Public Enemy’s “Fight the Power.”  Public Enemy’s strong political message coupled with the nature of his samplings creates one of the most powerful sample-ridden songs of contemporary music. 

Katz only does so after first clarifying with the reader what exactly sampling is.  This definition has been found in the majority of the sources, but none went on to detail the legal issues as well as Katz.  He also goes on to explore the question of originality and immorality in terms of remixing and sampling.  Nevertheless, his case studies have proven most useful in determining the full extensions of digital sampling in music and his insight into its effect on music today.  He also lightly touches on the various effects parodies have upon the original work, if any, and acknowledges the complexities within the industry when it comes to approval for such works.  This book could possibly be the best source found thus far, seeing as it is not overly specific in its subject matter, yet it explores enough topics in a reasonable level of detail to be reliable. 

Lee Marshall, co-editor of the very first source, "Music and Copyright – Second Edition," authors this work of similar form but on a slightly different subject.  The strictness of copyright law in terms of music is once again revisited but is no longer commented on as either fostering or inhibiting creativity in the industry.  Lee more explicitly lays out the fundamentals of copyright law, especially when it applies to bootlegging and piracy, and he broadens the discussion outside of the United States to international copyright law. 

            Prior to his outline of the bootlegging/piracy portion of the industry, Marshall itemizes the four main copyright issues in music.  The first two he identifies as the copyright of the original work itself: song and lyrics.  Beyond that, he clarifies the issue of copyright of the recording and who often owns the rights to a song produced in a studio.  Lastly, he outlines the details of copyright it terms of the performance and the differing stipulations both in the United States and abroad.  Marshall then asserts that the main concerns over performers’ rights stem from issues regarding bootlegging, and he goes on to explain the complicated laws concerning it. 

            Bootlegging and piracy are two of the main portions of copyright law that are most closely related to, if not directly cited in, cases involving digital sampling.  By referencing Marshall’s comprehensive look at copyright law as it pertains to bootlegging, I can not only ascertain for myself whether or not a particular usage is acceptable or not, but I can also refer to the various case studies employed by Marshall if unsure.  In writing this final essay, Marshall’s detailed work on bootlegging and piracy in terms of copyright law has certainly been a valuable source to cite.

Nintendo’s attacks against anything capable of copying a video game are not just a historical curiosity.  The company, along with the rest of the video game industry, continues to sue these copying devices to this day.  The most recent lawsuit is against the R4, a Nintendo DS cartridge that fills many of the same purposes as the old Game Boy Advance flash cartridges.  The device bypasses the protection on the system and uses a micro SD card to run pirated games, homebrewed games, or anything else capable of working on a Nintendo DS system (playing music, programming, etc.).  Despite being fully aware that the device skirted the edge of legality, Japanese retailers continued to stock and sell the device to high demand (while explicitly not explaining what the device does).  Of course, Nintendo was not happy about this state of affairs, and proceeded to sue the companies that make and distribute the device.  54 other software companies joined the lawsuit.

Under the precedent set by the Game Boy Advance flash cartridges these devices are probably illegal.  It is easy to see why the video game industry wants them off of the market.  However, the consumer base clearly loves these devices.  The R4 apparently sold very well in Japan, and with the lawsuit the price of the device skyrocketed (see another article linked from this one).  Consumers seem to believe that there exists plenty of legitimate uses for the R4, not just playing old, illegally obtained games.  Consumers write homebrew applications that allow the DS (and also the PSP, although this is not the subject of the lawsuit) to do an incredible number of things.  The author even notes that he has meet people who jumped into game design by learning on hacked DS’s and PSP’s.

Clearly, the consumer base enjoys using the R4.  And while Nintendo might be perfectly within their rights to stop them, it could create massive ill will.  Being told that all of the hard work you put into a homebrew application that you created without breaking copyright law is bound to make anyone angry.  With a huge portion of the video game industry getting behind this lawsuit, it makes an easy target for the ire of the community.  The video game industry, it seems, has not learned its lesson.  Despite already angering many consumers with their attacks against any form of copying or emulation, it continues to press lawsuits.  If this path continues, then the industry risks turning into the next RIAA.

Lik-Sang was an Internet mail order business based in Hong Kong. Note the word “was”; the company was forced out of business in 2006 by multiple lawsuits from Sony regarding the early selling of PSP's in the UK. However, in the early 2000’s Lik-Sang was embroiled in a legal battle with Nintendo over the selling of Game Boy Advance copy devices (similar to the GB Flash Advance Linker). These devices allowed a consumer to either copy a ROM from a PC onto a blank cartridge, or copy a legitimate game cartridge to a PC. The court ruled in Nintendo’s favor that the devices were illegal, making the analogy of going after drug traffickers instead of drug addicts to curb drug use.

But this article is primarily a statement from Alex Kampl, one of Lik-Sang’s founders, after the decision was handed down. First of all, he notes the errors in the official Nintendo press release (which can be found via link from this article), including the fact that he had filed an appeal to the case, and that it was a summary judgment, not a full trial. In addition, he notes that the Hong Kong judge in the case was not an IP specialist (apparently there is not IP specialist in the Hong Kong judicial system any longer) and seemed to misunderstand some basic concepts about video game emulation. Kampl goes on to claim that since there is not copy protection on the Game Boy Advance, this particular section of law does not apply. Kampl also describes his disappointment that Nintendo is going after hardware used extensively by hobbyists, even by certain video game companies (apparently companies purchase flash cartridges from Lik-Sang for development purposes). Kampl claims that what he is doing is perfectly legal, and that presumption of innocence seems to no longer apply to cases of video game copying (“Nintendo doesn’t need to prove you are a pirate anymore, it is assumed you all are if you have the technical means to copy”).

Kampl’s claim that the Game Boy Advance does not have copy protection is more or less false; the system does have a form of copy protection (as explained in the Customs and Border Patrol ruling on the GB Flash Advance Linker). In addition, the analogy to drug trafficking has some logic to it, since it would be impossible for Nintendo to find and prosecute all video game pirates. But Kampl’s statement that the whole case should be embarrassing for Nintendo certainly seems to have merit. The purchase by video game developers of hundreds of flash cartridges clearly shows that they have some legitimate use in game development (and could be used by consumers to produce homebrew games), and as such is does seem that Nintendo is assuming that anyone who uses this device must be guilty. In addition, these types of cases clearly build up ill will towards Nintendo within the video game community, something that the company wants to avoid. Overall, while the decision may have been correct, Nintendo’s decision to pursue this case may have been a mistake.

Jordan Hatcher describes the fansubbing community as sitting at an interesting boundary between creative production and file-trading.  He notes that fansubbers are guided by a cultural goal and attitudes that exist within the community itself, comparable more to the FOSS movement rather than typical pirates.  After recognizing these nuances between fansubbers and pirates, Hatcher asks, “Do our laws stifle creativity and sharing to the point where it harms society?”  While there are certainly cultural benefits created by the fansubbing community, there also exists the potential to replace market need for official licensed translations, thus causing an economic harm to the artists and creators of these works.  He argues that a fair use defense based on these benefits, such as market enhancement or interest-building, are undercut by the reality of fansubbers' actual practices of providing a substitute product.  While Hatcher concludes that it is still too early to come to any conclusion about the benefits of fansubs, he believes that the relationship between fansubbing communities and the anime industry will “reveal a great deal about copyright in a connected digital world.”

Hatcher challenges the model of fansubbing as an activity that creates growth and benefits for the anime industry by undercutting the traditional market enhancement argument that fans usually propose.  Copyright should not be frivolously violated because protection of creative products is a culturally beneficial instrument that provides creators with incentives to produce new works.  Therefore, in order to produce a culturally beneficial arrangement that incorporates the benefits of fansubbing communities while minimizing the harms to creators, both groups must respect the value each respectively generates and come to an agreement that meets their common goal of promoting anime.  Such an agreement is possible because, unlike typical pirates, fansubbing communities operate around a code of conduct and thus have demonstrated a level of compliance with industry requests not seen in other areas of the piracy debate.

Sean Leonard extensively documents the history of anime in the United States from 1976-1993 in order to demonstrate how fan communities acted as proselytziation commons that shaped the formation and initial operation of the anime market.  Leonard defines a proselytization commons as a free exchange of media in order to advance a directed cause, namely the promotion of anime to a wider audience.  While these fan activities infringed on the copyright of Japanese companies, the companies nevertheless responded with either strategic ignorance – that is, they sought benefits that result from unauthorized use – or plainly dismissive ignorance.  Leonard’s legal analysis classifies the fansubbers’ activities as producing a desirable outcome, but not being sanctioned by law.  Since current copyright law prohibits these culturally beneficial activities, Leonard proposes a revision that excuses unauthorized reproduction of foreign works until they are actually licensed and distributed in the domestic U.S. market.  He grounds this revision on the early American tradition surrounding copyright law based on an originalist interpretation of “limited Times” and “promote progress” in the Constitution.

Leonard’s analysis of the history of fansubbing presents one of the strongest rebuttals to the argument made by many media industries that the progress of culture requires “perfect control over copyright from fixation to expiration.”  Grass-roots distribution of anime through fan networks not only promoted cultural growth by acting as a proselytization commons, but also created a multi-million dollar market for these products as well.  Therefore, the example of fansubs demonstrates how culturally beneficial activities that in fact meet the goal of “promot[ing] progress” are nevertheless unjustly restricted by rigid copyright laws.  The fact that current copyright laws are in fact having the opposite of their intended effect should prompt citizens and lawmakers to consider exemptions, such as expanding Fair Use, that legalizes these activities.

The Internet is forcing the movie industry to adapt its current business model in order to keep up with the online trend. With the growing popularity of online movie download sites, Hollywood will have to figure out a way to compete. This article featured in The Economist argues that if the film industry embraces the Internet they will profit considerably more than if they were to fight it. One of the most advanced Internet distribution sites is ZML.com, which offers over a thousand films for download to various devices at low costs and good quality. Unfortunately for Hollywood, this website is a pirate site. Piracy and the increased accessibility pirates have to online material discourages the film industry from making titles accessible on the web. While film industry has always been slow to accept new technologies, failure to do so with the Internet could result in damaging effects. The article points out that studios such as Paramount and Disney were opposed to the DVD at its inception, primarily because they would rather keep their stringent business model than adapt to a new one. Still, some studios are embracing the Internet and its potential to spur new revenue.

While some studios have helped to create legal online rental services, they have reaped little success. The author suggests that download-to-buy options would be more profitable and could show the movie industry the capabilities of the Internet. In addition, the current sites are not particularly enticing for users because the movies offered are second-rate--with very few blockbusters or major hits available. The article goes on to explain the reasons for Hollywood's reluctance to go online. Most notably, the DVD industry is so popular that they fear risking such a large source of revenue. In reality, the industry could profit by increasing the amount of titles available through an infinite online database rather than through limited shelf space in DVD rental stores. Regardless, there exists technological obstacles that are difficult to combat. For example, download times can reach up to an hour and most people would rather watch movies on their televisions than on their computers. Lastly, the "lack of common standards" prevents a uniform system for online distributors. Despite these challenges, the article points out the potential remedies and the various ways the industry is currently taking steps towards overcoming these difficulties.

Although wary of what the Internet may bring, the industry recognizes its potential to reach the masses. Studios spend a significant percentage on online marketing because it is so successful and provides beneficial feedback. By targeting substantial groups interested in specific subjects, the industry can use this response to shape their films. The most promising invention described is the flash-memory enabled kiosk, which "overcomes many of the weaknesses of the present model and the current deficencies of the Internet," says Mr. Lieberfarb, who is on the board of MOD Systems.This article directly aids my paper through its summarization of the multitude of adaptations and inventions that film industry has had to make in such a digital world. It is apparent that the movie industry must adapt if it does not want to falter in this digitally advancing society.

This essay by Professor Randall C Picker is his comment to the essay “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design”. It is from the point of view of someone who didn’t know too much about fashion until he read Kal Raustinala and Chris Sprigman’s The Piracy Paradox: Innovation and Intellectual property in Fashion Design. Picker talks mainly about two points- the role of the Fashion Originators’ Guild of America and its demise and then he questions whether a piracy paradox even exists. On March 23, 1976 Time magazine carried a story called ‘Dress War’ which was a discussion of the legal issues happening between the Boston department store Filene and the then newly created Fashion Originators’ Guild of America. Picker states that this guild was set up to protect fashion and deal with ‘style piracy’. Picker says that the Time magazine article describes all the dirty tricks that people would use in the fashion industry. He then uses an excerpt from the piece to show this. The excerpt says that by the early Depression years style piracy was a huge thing, if an item came out in stores in the morning and was priced at $60, by the evening it would have been copied and would be in other stores priced at $25 and later in the week, at even lower prices. Picker explains that the way the Guild dealt with all this was by organizing a registration system and by boycotting stores that sold copies. He then uses the Time magazine story again to analyze whether the Guild’s efforts of protection actually did lead to more creativity and newer fashions. He says that Raustinala and Sprigman in their paper were dubious as to whether the Guild actually wanted more property rights but in his opinion what the Guild was doing was definitely wanted by high- end designers.

Picker’s next main point is about Fashion Durability. he talks of an article from the New York Times in 1947 which says that Maurice Retner, the former head of the Guild wanted legislation in America to be modeled on French legislation. Leon Bendel Schulmen of Henri Bendel on the other hand didn’t really care and was happy living without property rights. he said that by the time anyone could copy his designs, the design itself would be on its way out. Picker argues that famous designs get copied and sold to the masses. People who want ti be dressed in the best and are very fashion conscious would not want to be associated with the masses and what they wear. High-end fashion designers see this and produce something new for this elite market to wear, there by starting a cycle that keeps the fashion market alive. He argues that creating a fashion copyright would only ensure high-end designers the ability to raise their prices and differentiate themselves. The Piracy Paradox paper really questions whether creativity can be sustained without protection. Picker in this essay asks whether the price is worth it.

This source would be useful for my paper as it is an insight into a very interesting paper. I questions the validity of what the authors have written regarding a magazine article that I crucial in this field. I will use this source to help me analyze the issue of sustaining creativity without protection. I will further explore what the paper says about the Guild and how Picker’s interpretation is different to that in the paper he is commenting on.

This article, by Chuck Cochems, is an interesting look into the mind of a video game consumer.  This particular consumer is annoyed at video game companies (“corporate fat cats”) for their unending bashing of video game emulation.  He feels that they are simply out to make as much profit as possible, and do not really care about what is right or legal.  However, what starts as just a long rant against the industry morphs into the author’s attempt to find a legitimate, legal defense for video game ROMs.  After discarding all of the traditional defenses, he turns to the Betamax case, and focuses on what he refers to as “the personal use defense.”  Through his reading of the decision, the author comes to the conclusion that ROMs made for personal use could not be infringing.  He also applies this personal use logic to the DMCA, claiming that since a personal use could not possibly be commercial, the DMCA does not apply to copies made by consumers (he also notes catch-22 inherent in the DMCA, that nobody can legally provide the equipment to make a legal backup copy of a video game).  So, there does exist a legal means for a consumer to make backup ROMs of a video game.

While the author makes some valid points, a lot of his logic seems to fall flat.  The Betamax case cannot be applied to space-shifting quite as easily as Cochems might think, even if it only applies to personal use.  And not every personal use is non-infringing; it is clearly possible to infringe on someone’s copyright without selling or trading the infringement.  Also, he simply waves the DMCA away with a wand and the magical words “personal use.”  This is an unlikely scenario at best, and downright wrong at worst.  However, the true power of this article is to demonstrate how important this issue is for a significant segment of consumers.  It is clear while reading this article that Cochems cares passionately about video game emulation, if only on an ethical level.  He is “sick and tired” of the attempts by the video game industry to stamp out emulation, and he is looking for any legitimate argument to ensure the legality of video game ROMs.  The video game industry wants to avoid creating a consumer base that predominantly resembles Cochems.  Otherwise, they could find themselves in the same position as the RIAA.

In this paper, Lisa J Hedrick, argues against a copyright for fashion designs. Before laying down her stance, she spells out all the facts and then goes onto to articulate her own opinion. She uses a brilliant quote from the blockbuster movie The Devil Wears Prada, to begin her paper.  

The fashion industry thrives on glitz, glamour, not to mention change. The shelf life of a product or a design in this lucrative industry is only a few months at the most, making the turnaround  time very fast. Hedrick argues against copyright saying that the cost of litigation would be so high it would be irrational to protect something with such a short shelf life.  

Hedrick begins her paper by explaining the current state of intellectual property law and its failure to protect fashion. The ambiguity of the definitions of the words ‘fashion design’, ‘design’ and ‘apparel’ in The Design Piracy Bills is a major concern and can be projected as being seen as a major reason why fashion won’t actually be copyrighted in a proper manner, if the bills are passed. The many restrictions that will indirectly be put in place by these  bills might eventually cripple the industry. Designers will have to think twice before creating something and to ensure that their goods will be protected by these bills. Hedrick brings up an interesting issue of “conceptual separability” that already exists within current copyright law. It is the only concept under which fashion designs are provided with a minimal amount of protection. But even so, there are numerous tests that the designs have to pass, as Hedrick points out, for them to be protected. For instance a certain item of design or piece of clothing needs to pass the test of whether the button is original or not even the most minor alterations to an item of clothing. 

Hedrick talks of the proposed Fashion design protection under the Bills and later compares current Fashion protection in different parts of the world. European fashion copyright protection with its concept of  the Community design system, would be the closest thing that could be compared with what American fashion protection is aiming for. However the differences in the legal processes between the two demographics make it hard to compare the situation.  

This paper is very essential as a source: not only does Hedrick argue the same point as I do, but she also goes to great lengths to fully explain the legal situation. Her meticulous and thorough method of approaching the issue fully inform the reader of the current scenario. She has also explained this well and even points to a direction where fashion copyright might work. Her sound argument makes for a crucial source.  

This is Nintendo’s legal page and list of frequently asked questions (FAQ).  Many things on this page are completely unsurprising.  For instance, Nintendo defines terms such as copyright, patent, and trademark, along with explaining what ROMs and emulators are.  Nintendo very clearly has a zero tolerance policy towards emulators and illegally distributed ROMs (it refers to emulators that play illegally copied software as “the greatest threat to date to the intellectual property rights of video game developers”) and refuses to legitimize any attempts at emulation.  Nintendo also makes it clear that the exception of the law allowing backups does not allow a consumer to download a ROM of a particular video game (as the company notes, it is not a “second copy” law).  This exception, it explains, only refers to an owner making a copy to ensure that, in the case of the destruction of the original, they have a usable alternative.  However, later in the FAQ, Nintendo explains that game copying devices are illegal, since they allow for the illegal uploading of ROMs to the Internet. 

Nintendo’s absolute refusal to legitimize any emulators, while completely expected, is unfortunate.  Emulators are completely legal, and, considering how widespread they are, are here to stay.  It would be nice if Nintendo accepted this fact, and tried to find some middle ground (the Virtual Console on the Wii system could be seen as a sort of middle ground).  The classification of emulators as “the greatest threat” is a little excessive; emulation tends to focus on previous generations of video games, which bring in little revenue for the companies.  And even if emulation was such a large threat, the fact that it is legal means that Nintendo needs to live with the existence of emulators.

Most interesting is Nintendo’s understanding of the backup copy exception.  As Nintendo explains, you cannot simply download a ROM of a video game that you already own, since that copy is illegal.  A legal backup, however, seems impossible to create, since Nintendo classifies all game copying devices as illegal.  Without a legal means to copy a video game, Nintendo has essentially made it impossible for a consumer to create a backup copy of a video game that they own.  Nintendo provides no solution to this dilemma, and in all likelihood does not want a solution to exist.

This article draws on theories of globalization, technology, and the struggles between trade agreements and copyright objectives to place international piracy into a global context. The author, Shujen Wang, examines the the role of Hollywood in shaping trade agreements and piracy policy as well as the interconnectedness of unilateral and multilateral solutions. Specifically, Wang documents the General Agreement on Tarrifs and Trade (GATT) which led to the creation of the WTO, the growth of U.S. trade policy from the WTO's agreement on trade-related aspects of intellectual property rights (TRIPS), and the Digital Millenium Copyright Act (DMCA). While analyzing the importance and role international piracy and copyright law play within the framework of these multinational trade agreements, Wang illustrates the necessity for copyright protection via the importance of the copyright industry in the U.S. economy. Moreover, Wang tracks the way techological developments like VCR's and DVD's have changed the moral landscape of the pirating industry and Hollywood's lobbying efforts to push for protect copyrights internationally.

This article incorporates many of the essential themes of my topic, including techology's ability to alter and push the boundaries of domestic and international copyright statutes, international piracy's role in shaping trade agreements, and the U.S.' ability to use these trade agreements to open up markets and ensure strict copyright protection for its goods. Furthermore, the article cites the specific legislation, trade organizations, and trade agreements that have been instrumental in shaping the two-pronged U.S. approach to copyright protection. Specifically with the passage of the Permanent Normal Trade Relations act with China in 1999. Overall, this article provides valuable insight into constrcting a fraework that encapsulates the complexity of Chinese piracy and how it has affected our bargaining and trade agreements and policies.

U.S. Congress. House. Design Piracy Prohibition Act. 110th Cong., 1st sess., H.R. 2033. (25 April 2007).

This is one piece of legislation proposed to protect fashion designs from piracy. This Design Piracy Prohibition Act would basically give fashion designs protection for three years after the application for registration is submitted. Within this act, the terms fashion design, design, and apparel are defined so as to create a definition of what can actually be protected under this bill. The reason these are defined within this bill is the ambiguous nature of these words. Without a clear definition, there would be way too many interpretations of the clauses of the Design Piracy Prohibition Act. The bill also states the terms for submitting a design for copyright protection. Basically, any rights to protection are lost if the design is not submitted within three months after the design is made public. The bill also briefly lists the monetary penalties for any pirates if found guilty of copyright infringement.

This bill is an important source for any paper on fashion copyright since it provides an example of the types of legislation that would supply design protection. Even though this bill has not gone through, many of the Design Piracy Bills follow this basic structure for fashion copyright. Therefore, this source provides an example of how effective bills can be in providing protection. In addition, many sources reference this bill and its contents. So, it is useful to have the actual bill and its wording to look back upon and analyze as a primary source. The bill basically amends title 17 in the United States Code to provide for fashion design protection. By looking at how proponents of fashion copyright will protect fashion designs, I can decide, within my paper, whether these laws are beneficial or effective enough to even bother enacting. Thomas, the site where this bill is located, also provides a list of sponsors for this bill. There are only fourteen sponsors, which creates suspicion as to how effective or plausible this bill may actually be. Information like this surrounding pieces of legislation make bills useful sources.

Another landmark emulation case, although slightly different from the Connectix one.  Bleem was another emulator for the Sony Playstation, and Sony sued it for the use of copyrighted images on their packaging.  Basically, on its packaging Bleem compared what a video game looked like on a Playstation vs. what it looked like on the emulator.  To do this, they used screen shots of Sony video games, which Sony contested.  Bleem, of course, claimed fair use.  The court decided in agreement with Bleem, noting that the use of copyrighted images fell under fair use because it was comparative advertising.  Since Bleem is a direct competitor to the Playstation, it needs to be able to use copyrighted material in order to make a successful advertisement.  Sony even claimed that Bleem was hurting the market for screen shots by using them in advertising, but the court shot that argument down as well, stating that Sony could still use the screen shots in advertising if they wanted to.  Also, since a screen shot is an absurdly small portion of the total work, Bleem is not actually copying that much from Sony. 

Similar to the Connectix case, the Bleem case drove home to the video game industry that contesting emulators themselves would lead nowhere.  With emulators being fully allowed to advertise using copyrighted video games, there was no need to hide their real uses.  Emulators and their creators are free to proudly display the abilities of their systems, without fear of any legal reprisal.  This makes it much easier to distribute a particular emulator using advertising, and in turn makes emulators much more widespread.  If this decision had gone the other way then the difficulty in advertising an emulator (remember, you wouldn’t be able to use any copyrighted shots in the advertising) would have been a huge obstacle to distribution.  But, without any legal recourse to stop the distribution of emulators or make them harder to spread, the video game industry needs to focus on the people illegally distributing the actual games, not the programs that play the games.

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. http://ssrn.com/abstract=878401

This detailed article is an in depth view of both sides of the fashion copyright debate. Rather than simply looking at and supporting only one viewpoint on this controversial issue, the authors address both angles to the fashion copyright controversy. They then proceed to prove why support of low IP protection is the better choice despite arguments made in support of fashion copyright laws. This article describes the fashion industry as unique since it continually produces original content while its main creative element remains outside of copyright protection. This appears to condradict the theory of IP rights which claims that copying, which is rampant in the fashion industry, smothers the incentive for innovation. The article then presents the reader with the two overarching arguments. The argument for increased copyright protection within the fashion industry is more of a moral rights claim. This side claims the lack of current fashion design protection is an injustice to the immense creativity put into the creation of apparel. The other side looks at the unique nature of the fashion industry. They claim copying drives the cycle that makes fashion such a thriving, innovative industry. The article then proceeds to delve into past attempts at copyright protection for fashion. One failed attempt was made by the Fashion Originators' Guild of America: they made a deal between designers and retailers to refuse the sale of any copied apparel and boycotted any member of the guild who violated this rule. Since clothing and apparel are considered utilitarian objects, copyright should not apply to fashion design. Patents and trade dress also are not effective methods of protecting copyright. Although trademark is used by designers, it can only be used to protect names and logos, not entire designs. Therefore, bills like HR 5055 are suggested by groups like the CFDA. One of the main concepts of this paper is how induced obsolescene and the positional nature of apparel drive the fashion cycle, which would be incredibly slow and ineffective without copying. In addition, Raustiala and Sprigman explain how free appropriation helps to anchor trends in the industry. So, they conclude that due to induced obsolescene and anchoring of trends, the fashion industry has remained stable despite rampant copying. Finally, the authors address the copyright system in the European Union and how even with protection laws, very few design infringment cases come to court. Additionally, due to the litigious culture of the United States, copyright protection in the US would simply flood the courts with unnecessary cases and reduce innovation due to fear of suit.

This article is of extreme importance to any research regarding the issue of fashion copyright. The article is unique among other scholarly works on this issue in that rather than just delving into one side of the debate, the authors address the arguments on both sides of this fashion copyright war. This is an extremely useful method and structure since it provides the reader with insight into both arguments. However, the article is then strengthened by analyses of both arguments and subsequent counterarguments against those supporting fashion copyright. Since my topic revolves around whether fashion copyright should be enacted or not, having both argments laid out within one coherent paper is extremely beneficial. The paper also looks at previous attempts at fashion copyright. This is important in building the history and basis of design protection in my paper and why these laws should not be enacted in the present day. This article is very important in building the foundation of my argument.

The definitive video game emulation case. In the late 1990's, Connectix created the Virtual Game Station, a commercial emulator designed to replicate the Sony Playstation on a PC. In doing so, they necessarily had to copy elements of the Sony BIOS (built-in operating system (the software that runs the Playstation)), but they claimed fair use. The court agreed, noting that law stated that disassembly could be considered fair use when it is the "only way to gain access to the ideas and functional elements embodied in a copyrighted computer program." Since Sony had provided little information about their BIOS to the public, Connectix could only gain access to it by taking it apart. The court also found VGS to be "moderately transformative"; it transfers the Playstation to a new platform, and thereby expresses the product in a different fashion. And since the VGS is transformative, it is not really a replacement for the Playstation. The court also ruled on the claim that Connectix tarnished Sony's Playstation name. Although the VGS does not play games as well as an actual Playstation, the court did not find that this would result in the VGS hurting Playstation's good name

This case follows sound logic, and clearly sets out the argument that emulation itself is perfectly legitimate. It clearly outlines exactly how Connectix copied Sony's BIOS, and explains why that path resulted in VGS being fair use (and in doing so, more or less created guidelines as to how to ensure the legality of an emulator). More importantly, this case made it clear to video game companies that contesting emulation itself would not succeed; if video game companies were intent on stopping piracy, they would have to go after the actual copies of the games, not the emulators. Since ROM files are much more prevalent than emulators, this decision in essence made it much more difficult to stop video game piracy, and forced companies to allow the creation of dozens of free emulators.

First, some basic background. VNES (stands for Virtual NES) is an online NES emulator, written entirely in java. The site, based in the US, has a huge catalog of original NES games, which are completely free to play online (no downloading required). Now, obviously a whole bunch of legal questions come up here, most notably the claim that this is massive copyright infringement. The vNES legal page attempts to address these claims, and provide a justification for the legality of the site, through six main points.

One of the most notable arguments is the claim that the website constitutes fair use. It states that the website is noncommercial, only uses cartridges out of the market for 15 years, keeps copies of entire works, and that it holds works "vastly technologically inferior" to modern works (and then claims that these facts sufficiently satisfy the four factors). It also claims that, under Sony v. Universal, this emulation simply constitutes time-shifting, and therefore must be fair use. But by far the most interesting claim that they make is their classification of themselves as an archive (under 17 U.S.C. § 108). As an archive, the claim goes, they should be able to make their works available to the public. Also, they only provide games that they have physical copies of in their offices.

Now, their fair use claim in tenuous at best. The fact that they use entire works actually hurts their case as opposed to helping it, and just because the works are "vastly technologically inferior" to modern games does not mean that companies cannot still profit off of them (as remakes clearly demonstrate). Also, this isn't time-shifting so much as space-shifting, and the legality of space-shifting is not well tested in the courts. However, the archive claim is interesting, and could provide a valid loophole for emulation sites to provide video games to consumers. It relies on the games only being playable online though (no downloading (other than normal, incidental downloading) is involved). And the site has been contacted by the ESA (after which they removed all games for which they did not own physical cartridges), so presumably the industry is aware of it. This could provide an interesting middle ground for video game companies and consumers.

Barnett, Jonathan, Grolleau, Gilles and Harbi, Sana El. "The Fashion Lottery: Cooperative Innovation in Stochastic Markets." USC CLEO Research Paper No. C08-17; USC Law Legal Studies Paper No. 08-21. http://ssrn.com/abstract=1241005

This article puts an economic spin or an economist's viewpoint on the fashion copyright debate. In other words, it applies economic principles to the fashion industry to show why an incomplete property regime, not complete copyright protection, is the most sensible situation for the fashion industry. To build this argument, the author first explains the concept of "fashion risk," the main economic problem in fashion. Due to demand uncertainty in the fashion industry, it is difficult to forsee if a new design will be successful. So, designers need a system of collective insurance to balance the losses from seasonal product failure and the risk of firm bankruptcy. This collective insurance comes from designers allowing limited imitation which maximizes earnings in the long run. Basically, how this economic idea works is that the designer that produces the "winning" design for that season earns a larger prize, keeping the incentive for innovation alive. However, the incomplete property regime also gives smaller profits to the "losing" designers as a kind of insurance against the "fashion risk." This method is termed the "winner take most" approach. The article then transitions into three different types of imitation: mark perfection, design perfection, and quality perfection. These are then related to three different methods of imitation: horizontal imitation, legitimate vertical imitation (knockoffs), and illegitimate vertical imitation (counterfeits). Basically, horizontal imitation is copying among high end designers while vertical imitation is copying of elite designs by lower end fashion designers in a trickle down effect. As stated previously, the fundamental economic problem for designers is demand uncertainty and the associated risk of bankruptcy. By allowing horizontal imitation and legitimate vertical imitation, this risk is greatly reduced. An obvious way to success for the majority of the market is to wait until the winning design is determined for the season by the consumers and then release imitation products as this eliminates risk and increases success. However, this would kill innovation. So, the best solution is incomplete protection-positive yet constrained imitation. The economics equations show that to maximize final wealth and minimize the variance of final wealth incomplete, not complete, property regimes are required. This can be explained by the idea that at one extreme the winner does not make enough and so incentive is low. At the other extreme, insurance is too low and risk is too high. Both of these cases lead to underinnovation. In short, some imitation supports design innovation while too much or too little undermines it. Therefore, only the very few elite firms can afford the complete copyright protection suggested by bills such as the Design Piracy Prohibition Act.

This article is a very unique way to approach this fashion copyright war. It is an invaluable asset to my argument against enacting fashion design protection laws. This article basically utilizes economical principles to build mathematical equations proving that incomplete copyright protection or rejection of recently proposed copyright laws is more beneficial to society than enacting complete protection for fashion designs. The organization of this paper with alternating pieces of mathematical equations and textual analysis creates an extremely convincing and almost indisputable argument due to the logical thought process this method of presentation creates. This article greatly enhances my argument in that it provides an alternative viewpoint, particularly an economist's angle, which still points towards the same conclusion: fashion copyright laws should not be enacted.

Hedrick, Lisa J. "Tearing Fashion Design Protection Apart at the Seams." Washington and Lee Law Review, Vol. 65, No. 1, pp. 215-273, 2008. http://ssrn.com/abstract=1127190

This article presents both side of the copyright debate more in terms of the pieces of legislation proposed for fashion copyright. It goes through the pros and cons of either side of the fashion copyright argument and then argues against the enactment of these laws. Fashion design falls within the negative space of copyright protection. Therefore, designers cannot prevent knockoffs of their original designs. This paper acknowledges that these knockoffs are harmful as they hurt the designer's profits and reputation due to the low quality of imitation products. Piracy causes almost $12 billion of loss in the fashion year annually. The paper is set up this way and the author then skillfully uses all these facts that seem to support fashion copyright to show why copyright laws are ineffective in stopping any of these problems. First of all, terms such as fashion design, apparel, and design are extremely ambiguous but are used within the Design Piracy Bills. This is simply because fashion is hard to define and consequently very difficult to protect. The author also explains that fashion also cannot effectively use patents, trademark, trade dress, or copyright (due to its utilitarian function) for protection purposes. In addition to the vagueness of fashion lingo, the Design Piracy Bills would simply cause congestion of the courts with senseless cases due to the extreme subjectivity that would be involved in fashion court cases. Even if the bills went through, there are so many loopholes that pirates can find within these bills to basically render any protection useless. Finally, Hedrick looks at the fashion laws in the European Union and shows that even with laws hardly any cases come to court regarding piracy. However, she points out the cultural differences in that America is much more litigious and these laws could force designers to pay large amounts of money for lawyers to protect clothing that has a short shelf life. In addition, there is no guarantee that courts will even be able to punish pirates. It is also very possible that the laws enacted in the US would be much stronger than those in the European Union, which could lead to monopolies that would stifle creativity. Although Hedrick is opposed to these laws, she does make some suggestions on how to improve fashion copyright dealings if these laws go through. Overall though, her basic argument is that effective protection by Congress for fashion design is impossible. So, no protection is better than minimal protection. Any benefits that might arise from design protection would diminish rapidly with the cost and time of court decisions on piracy.

This source is obviously beneficial to my argument since it supports my thesis. However, the importance of this source is due to the rational and legal method used by the author to argue against fashion copyright. The author basically looks at the problems with the fashion industry at present and then shows the correlating proposed laws. However, she then analyses these legal proposals to show that they are extremely ineffective at solving the issues surrounding the fashion industry. If anything, these "solutions" might actually make things worse. The argument basically concludes that the fashion industry is inherently incapable of useful intellectual property protection. Therefore, time and energy should not be wasted on implementing laws that will most likely not benefit the industry.

Picker, Randal C. "Of Pirates and Puffy Shirts: A Comment on the Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Forthcoming; University of Chicago Law & Economics, Olin Working Paper No. 328. http://ssrn.com/abstract=959727

This article takes the side of those individuals supporting the enactment of fashion copyright. This argument is made using past attempts at employing fashion copyright laws to protect designs and the results of these attempts. One major example used to support this claim of positive effects resulting from design protection is the Fashion Originators' Guild of America. This guild basically organized registration and monitoring for apparel with a threat of boycott of any retailer who sold knockoffs. The claim here is that this increased intellectual property protection resulted in greater innovation efforts. Although the Federal Trade Commission took down this organization, the article argues that the fact that it formed demonstrates that high end designers do want greater protection. This argument is made against other claims that the members of the industry do not even want increased protection. The argument then continues into the present time and the benefits these laws would endow on the fashion industry. With fashion design protection, high end designers can make credible promises to their consumers, which is impossible with the current amount of knockoffs in the market. With the ability to make credible commitments, high end designers could raise their prices and make more money off their original designs. Therefore, there is clearly a benefit to high end designers that accompanies increased protection. Also, the author argues that imitation in the industry is only one sided with the high end designers having to deal with the rapid imitation of their original designs. With copyright, these designers could promise their consumers that this rapid copying of the apparel they are buying would not occur. Basically, the author here argues that the rampant copying in the fashion industry is detrimental to the high end designers and their customers. Therefore, copyright protection is necessary to protect their rights and keep low end designers from exploiting the low protection regime of the fashion industry.

Although this source complicates my thesis by working against my claims that fashion copyright laws should not be enacted, sources like these are absolutely necessary to develop a strong paper. These claims will provide something for me to argue against and prove incorrect in my argument. Without addressing opposing opinions, the argument and paper would be weak. This article clearly utilizes an analysis of the high end or elite designers to support the claim for increased fashion design protection. However, it avoids looking at the effect of copyright laws on the rest of the fashion industry. However, it is still a useful source as it provides the perspective of a high end designer, the biggest victim of piracy or imitation.

Subcommittee on Courts, the Internet, and Intellectual Property, Committe on the Judiciary, U.S. House of Representatives. Design Law: Are Special Provisions Needed to Protect Unique Industries-Testimony of Fashion Designer Narciso Rodriguez.  14 February 2008.

This source is a testimony by Narciso Rodriguez, a fashion designer and board member of the Council of Fashion Designers of America. This testimony is in favor of HR 2033, the Design Piracy Prohibition Act. He first presents some astounding figures such as the annual loss of at least $12 billion in the fashion industry due to piracy. He then takes the audience or reader through an almost emotional trip by explaining all the training, hard work, and money that goes into becoming a designer. With all the time and money invested within the fashion industry, pirates are just making a risky business riskier. He then constructs an argument for fashion copyright using a sad, personal anecdote. In other words, he plays on emotions and moral rights to make his point. He basically recounts a story about an original design he made that was copied and sold by pirates millions of times. Without protection for fashion design, US companies arise with piracy as their business model. These companies can afford to make large quantities at low prices, causing more sales for the pirating companies than for the original designer. Rodriguez then suggests the positive results of enacting copyright. Pirate companies would be forced to hire real designers, increasing the job market for designers and creating a great choice of original designs for consumers. He admits that in the past clothing was a functional object and therefore did not require protection. However, he believes that fashion has now become an art that is no longer just utilitarian. He then addresses the other side's concerns by claiming that only truly unique designs will be copyrighted, not all designs. He also states that the three year protection period will simply allow designers to reach the market before the pirates. After these three years and with a large public domain still in existence, previous designs can still be used for inspiration. He also addresses the concern that this will increase apparel prices by claiming that accessibly priced clothing will still exist, but the creation of these derivative lines will be through the original designer. Through explanation like these, Rodriguez attempts to passify the concerns on the scope of the legislation of copyright opponents.

This testimony by Narciso Rodriguez is very beneficial since it is a primary source coming from an elite fashion designer. It provides the viewpoint of someone within the fashion industry. Rodriguez begins his argument with a very emotional approach regarding his personal experiences and losses due to piracy. After getting the audience's sympathy, he provides some positive benefits of enacting copyright. He concludes his argument by addressing the concerns of the skeptics of fashion copyright. Rodriguez is a biased source since he obviously can benefit if the copyright laws are enacted. However, his testimony provides some real insight into the minds of fashion designers and the actual issues they face due to piracy. Therefore, this article provides a better sense of the real problems plauging the industry and if these laws can actually address these issues. So, although this testimony may not support my thesis, it provides better issues to address and counterargue than secondary sources would.

Rangnath, Rashmi. "Design Protection for Fashion Design and Autoparts: A Bad Idea Times Two." Public Knowledge Blog. http://www.publicknowledge.org/node/1399. February 16, 2008.

This blog considers the design protection for fashion designs and autoparts in terms of markets and niches. In terms of fashion design, the author argues that knockoffs do not damage the market for original designs much at all. Obviously there is some effect on the original designer, but the author argues that this effect is negligible due to the different markets that original designs and knockoffs compete within. Customers who can afford to buy runway designs are going to buy these original designs regardless of how many imitation versions are circulating. This is because the people who are willing to pay so much for clothing want to be able to tell others they are wearing an original. For them, only the original can give them the status they desire. On the other hand, people who cannot afford these original designs do not care if their clothing gives them status. In actuality, these customers still would not purchase the original design if the knockoffs were not present in the industry. These consumers are fine with the lower quality imitation once the trend trickles down. For this reason, elite and original fashion designers have no need to lower their prices to compete with knockoffs and imitations. This is because these two versions are marketing and selling to two different groups of people. They are operating within two different markets. Finally, the blog ends with an attack on elite designers who claim pirates end up selling more imitation versions than the designers can even imagine to sell of their original. The author argues here that in the elite market, the designer can sell very few items at a incredibly high price while pirates may sell thousands of products, but at virtually nothing compared to the original's price. Therefore, the elite designers probably come out ahead in terms of profit. The author makes a correlating argument against autopart design protection, which does not apply to the topic of interest.

This blog was chosen as a source for my paper because it has a very unique approach in looking at fashion designs and their imitations. Rather than looking at the logistics of the fashion industry or as someone from within the fashion industry, this blog arrives at this issue from the viewpoint of a consumer. In other words, the blog looks at the various classes of consumers and their different markets in order to suggest that imitation is not really harming anyone to an extent where copyright laws need to be enacted. By looking at the fashion copyright debate from a consumer and market viewpoint, this blog provides incredible support for my thesis by showing that a lack of copyright laws in fashion actually helps the industry thrive in all consumer markets. With design protection, the market for low end customers may very well be knocked out since a majority of consumers do not shop around in both low and high end markets.

This article introduces another argument to support the one that states that pirates can actually be beneficial to the original producers of fashion products. The authors render that pirates are not merely copiers. On the contrary, they often inspire high-end fashion designers in new directions. Specifically, the article cites the example of Fred Nuovo, the designer of the Nokia luxury brand, recognizing his idea of creating Vertu came from pirates who were selling counterfeit Nokia phones with diamonds on them. In addition, the article describes an incident in which Coco Chanel, a high-end fashion designer, used raffia in her collection after her press secretary bought a counterfeit Coco Chanel knockoff outfit that had included raffia trim, a detail the original lacked. If this were to be true, the usually pirated firms are the ones who are pirating from the so-called "pirates." In the conclusion, the article admits that the overall impact on social welfare remains ambiguous and calls for further research into this topic as a whole.

This article adds another argument that is important for my topic: that often producers not only gain financial benefits from pirates, but that they also often take creative ideas and details from counterfeited products. In addition, I appreciate the way that the author notes that the beneficial gains from pirating are still, at this point, ambiguous and that further research is needed to be conducted in order to fully understand the implications piracy has on fashion designers and their revenue of sales.

This article's overall argument is that although counterfeiting is a criminal activity, the act of counterfeiting is not always damaging to brands and can actually work to a brand's advantage. The author lists numerous ways in which this is accomplished, such as that it can increase a brand's awareness and desirability in the public's eye. A new way of looking at how counterfeited products help the original is by analyzing who is purchasing the counterfeits. The article argues that the people who buy the fake products are not financially able to buy the original, and that if they were, they would be the first in line to purchase the original. In this way, the increased brand exposure only helps to entice those who are able to buy the original. The counterfeit proves as no competition for the original. Another new piece of argumentation is that it closes off competition. The author notes that high priced branded goods encourage competition at slightly lower prices. Then, the "fake" products are priced as significantly lower prices. Thus, the competition is squeezed out because it is prices out of the top market by the original brand and is unable to compete with the very low prices of counterfeited products.

            I chose this article to use for my final project because it clearly explains that way in which counterfeited products eliminate the real competition for the original higher priced products. This adds a new dimension to my argument because previous articles did not deal with the actual competition of the original producers of fashion goods in the way that this author does.

This article argues against the thinking enforced by the incentive thesis, which argues for strict enforcement of intellectual property rights against piracy, or imitation. According to this theory, if the original producers are not protected, they will lose the incentive to produce new items. The article states that counterfeiting in fact does not always diminish the original producers' innovation incentives. The author gives two reasons to back up his argument. First, the introduction of copies will increase the amount of money that the elite are willing to pay for the original fashion product. In addition, the fact that a product is being copied will increase the desirability of the product to the non-elite consumers. Because of this increase in perceived desirability, such consumers will believe that the status benefits acquired from owning the product make the product worthy of a purchase. Thus, not only will the elite increase their purchasing of the item, but the non-elite consumers will also more often buy the fashion good. Both increase the producer's revenues on sales of the original, despite the counterfeiting.

This article is important for my topic because it argues against the need for protection against counterfeit products. Here, the consumer is not only the one being aided by the pirates, but the producer, too, is gaining more benefits, in the form of an increase in the revenue of sales on a fashion good, with the appearance of counterfeited products. I think it is important to note that the author specifies the counterfeiting is "imperfect," which increases the desirability of the product, both for the elite and non-elite consumers.

This article questions why the fashion industry has failed to secure U.S. copyright protection for its designs, despite the rampant view that piracy is an extremely fatal and potentially destructive threat to the drive to engage in creative pursuits. It tracks the film, music, software, and publishing industries, illustrating that such industries have used this argument for demanding increased legal protection. On the other hand, fashion firms and designers have not. The author gives several reasons for his argument. First, the article states that even original producers are sometimes copiers themselves. Different designers at different times set the trends for a season, and all engage in copying at some point. Also, because of the fashion industry's quick design cycle, a firm's position as either copier or originator is constantly and very swiftly changing. Furthermore, the article notes that the fashion industry is dependent on whether or not the consumer is aware of the newest trends. Thus, widespread copying results in some coherence. There is always a range of new designs produced each season, and the counterfeited products make clear to the consumers was is "trendy" at the time.

            This article is important for my overall topic because it gives claim to the argument that lack of protection rights for top designers are actually increasing the sales for these designers' products. Without counterfeiting, the American public will not be aware of what is "trendy," which would result in greater distribution of sales, but less concentrated sales for a particular design. Also, it gives substance to the argument that all designers borrow from one another at some point, for the industry is constantly evolving.

This article relates the common belief that software piracy is harmful both to the firms and to the consumers. Because of lower profits, with more people buying the copied products, the firms are financially hurt. Because of higher prices employed since their revenue of sales is cut, the buying customers are hurt if they do not purchase the copied products. The model that this article shows, however, suggests that even with significant piracy, firm profits will raise and prices will be lowered for the consumers. In addition, the article calls piracy an efficient "gift-giving" method. In other words, the product is made available to the public to increase its circulation, but it is only given to those who desire the product. The software does not end up being discarded by someone who has no use for it. The author compares piracy to mailing free copies to all computer owners in an attempt by a firm to make his product more well-known. Not only would many of the copies be discarded by those who do not want them in the first place, but the firm also would have had to pay for the copies to be made then distributed. With piracy, the firm receives free advertisement.

            Although this article deals directly with software and piracy, I found that its argument was relevant to my own. Just as pirates serve as free advertisement for the software firms, the pirates in the fashion industry help to circulate news of which are the most current and popular trends. The top designers do not have to pay for copies of their designs to be made known to the public in this way, and they are sure that those concerned about fashion are buying the copies.

This is a publication by the Ifo Institute for Economic Research located in Munich. The authors are Martin Peitz and Patrick Waelbroeck. Essentially this is a detailed economic analysis of various models concerning the effects of digital copying and secifically pirated digital copies. The paper specifically looks at filesharing networks and analyzes the economic impact. The authors analyze the common claim by record industries and "affected" industries, that unauthorized copying leads to lost profits. The authors present various articles by other reputable sources, and provide analyses of them. In some situations firms do indeed lose profits either directly attributable to piracy or indirectly. However, the publication also cites situations under which digital copies actually increase firms' profits and social benefit all together. Among other things, the paper also provides specific examples of types of goods and state whether producers of these goods benefit from digital copies. 

This source is very important to my research in a number of ways. It provides a third party outlook on the impact of unauthorized digital copies. While some of the issues raised by this publication complicate my research paper, the publication does provide some analyses which provide support for my thesis that government should suspend sites that host/index unauthorized copies of copyrighted content. For example, it mentions that in a certain setup firms do suffer from the existence of copies. Also it talks about how copies limit the monopoly-power of the firm, which in the long run detracts both from the producer surplus and the social surplus as a whole. Careful consideration and analysis of this source will help address my thesis question more fully.

This piece is a brief written by Lawrence Lessig in his capacity as counsel for Creative Commons in support of Grokster in MGM v. Grokster (2005).  The argument presented in the brief essentially deals with the issue of free speech enabled by peer-to-peer software such as Grokster.  Essentially, it is argued that due to the high costs of traditional file distribution technologies such as FTP, the ability to host large files such as videos is limited to larger corporations that can afford to do such.  Peer-to-peer software, on the other hand, enables individuals and non-profit organizations, for example, to distribute larger files without incurring excessive fees.  Lessig argues that, should Grokster be held responsible for the copyright infringement of its users, it will limit the ability of non-infringing users to engage in this specific type of free speech.  Many examples are given, one such dealing with the aftermath of the Indian Ocean tsunami in 2004.  Many amateur videos were taken following the disaster, and only through peer-to-peer file sharing were these videos able to be made public, as the cost of traditional file distribution would have made distribution infeasible. and Creative Commons worry that such legitimate uses would be jeopardized if the Supreme Court ruled against Grokster.

This brief is of great importance to my topic.  There are currently very few cases dealing with peer-to-peer file sharing, and this gives another look at one of those.  While it seems that the Supreme Court disagreed with Lessig and Creative Commons, as they ruled against Grokster, it is nonetheless an important in insightful brief.  The issue of free speech is not what usually comes to mind in regards to peer-to-peer file sharing.  This brief provides a multitude of examples of the legal uses of peer-to-peer file sharing, including BitTorrent, and how ruling against Grokster could impede and severely limit such uses.

In the 1999 case Sony Computer Entertainment America, Inc. v. Gamemasters, Sony sought a preliminary injunction on Gamemasters’ distribution of accessories for the Sony Playstation game console. Sony alleged that Gamemasters violated anti-circumvention regulations of the Digital Millennium Copyright Act (DMCA) as well as state and federal unfair competition laws. Gamemasters, a retail store in California, was sued for selling a game enhancing device. The court granted the injunction and essentially eliminated all sales of such devices by Gamemasters.

This external device performed two primary functions when plugged into the Playstation game console. First, the game enhancer allowed users to temporarily modify aspects of the game, similar to the Game Genie, manufactured by Galoob Toys for use on the Nintendo. Nintendo v. Galoob Toys, as decided in 1992, declared that the Game Genie was not in violation of copyright laws as it was not a derivative work of the Nintendo console and the Game Genie was a fair use of the Nintendo game system. Second, and most importantly, this game enhancer permitted players to play Playstation games sold in Japan or Europe which were intended by Sony for exclusive use on Japanese or European consoles. The game discs contain electronic check codes which are checked by the console when inserted. Discs with codes that do not match the region in which the console operated were rejected. The game enhancer overrode this protection.

By invoking the DMCA, Sony stopped the use of potential copyright and trademark violating technologies. However, critics of the DMCA noted that this decision also allowed Sony to continue its controversial business practice. Sony divided its game distribution and operations into separate international regions. By disabling games from one region to be played in another, authentic Sony Playstation games played in one part of the world suddenly became illegal versions after crossing borders. With increasing video game products offering multiplayer and global competition, these restraints pose legitimate threats for the future of fair gaming, especially online games. Such restrictions enabled Sony to protect its anti-competitive business model and possibly promote price discrimination between different areas of the world.

            This essay describes what an MP3 blog is, and how record labels want to capitalize on the promotion that they provide while fighting file sharing at the same time. The essay discusses the types of copyright infringement and fair use and how they apply to MP3 blogs, as well as the factors that cause the court to view MP3 blogs more favorably than peer-to-peer networks. It discusses law suits against Napster and also by the RIAA against peer-to-peer users.  The article explains what establishes liability for infringing use, and the different expansions of the Copyright Act which have been brought by copyright owners in addressing new technologies. It then discusses some of these acts and gives some examples of violators. The next section explains the defense used when copyright owners bring suits, which is fair use, and it lists and describes the four factors in deciding fair use on a case by case basis.

            This essay incorporates basically every aspect of my research into why copyright holders are willing to waive certain copyright in cases such as MP3 blogs, while they continue to fight against much of new technology such as peer-to-peer services. It describes what MP3 blogs are and how they are used and different sites that can link to the unauthorized music.  It shows what the copyright holder needs to look for in order to bring a suit against infringing users, and also explains how the user of the work can try to use fair use as a defense.

            This is a long essay about corporate power in the music industry. The argument is that cross-ownership in the media tends to reduce competition and increases profits, in turn, forcing music production to become increasingly uniform and profit driven, and harming artistic expression. It has descriptions of corporate sponsorship, and the loss of diversity. The next section is about Clear Channel Communications, and how the consolidation takes away jobs, excludes a large variety of music, and provides listeners with a biased source of information. Next, is the analysis of a recent hit, which examines the predetermined song structure which results in homogenized music and play lists, this is called the sound of corporate music. The conclusion suggests that a number of musicians would prefer to circumvent the bureaucratic systems of the industry, and that in order to preserve the artists ability to express sometimes controversial and diverse views, that musicians and the population at large would prefer legislation that moves away from monopolies.

            This article is relevant to my research in finding out why copyright holders are willing to waive some of their copyright in such cases as MP3 blogs, which often involve unauthorized downloading of copyrighted work. In the conclusion of the article, it suggests that a majority of musicians are not so upset about free downloads and many who are independently minded, support distribution systems that are not connected with the industry devotion to profit. Some artists who want to make more controversial material release it for free on the internet. It also suggests that this is a reaction to media consolidation, and provides some argument that more copyright control leads to the growth of monopolies, and the limiting of new technology and expression.

            This article is written by Cary Sherman, president of the RIAA as a response to a speech by Consumer Electronics CEO Gary Shapiro in which Shapiro stated that downloading off the Web is neither illegal nor immoral. Sherman says that statement is wrong and misleading. Shapiro says that legal downloading from record companies and legitimate online music companies is fine but there is a problem with unauthorized downloading of copyrighted material, and sites Title 17 of the United States Code. Sherman writes that the fair use argument employed by Shapiro makes falsely seem as if copyright owners are against fair use, and that the fair use claim is unsupported when it comes to unauthorized use. Sherman argues against Shapiro's claim that downloading is different from taking a tangible property by writing that both owners have been deprived of something of value. Sherman refutes Shapiro's use of the first amendment and also says that companies are in fact aggressively pursuing a more flexible business model that does take advantage of new technology. Shapiro writes that the industry using technology and the internet is beside the point and that the real issue in what Shapiro is saying is that "digital stealing isn't really stealing" and the last thing we need is more polarizing rhetoric.

            For my research on why copyright holders are willing to waive copyright in some instances such as MP3 blogs because the new technology has benefits in promotion, this article is a firm example of the view from the record labels about copyright law and internet uses. It is written by the president of the RIAA, Cary Sherman and gives an argument in favor of strong copyright law, and a rebuttal to a speech by the Consumer Electronics CEO Gary Shapiro in favor of weaker copyright law. It provides the viewpoint of the music industry about downloading, but it is interesting in that it does not mention anything about record companies such as Warner who at times chose to solicit certain independent blogs and will send the bloggers music with the hope that the blog will help promote the record label's artist for free.

            This is a speech given by Gary Shapiro, the President and CEO of the Consumer Electronics Association about growing tension between copyright owners and new technology. Shapiro speaks about how new reproduction technology and transmission technology has increased the fears of the music and motion picture industries. He draws parallels to new technology in the past such as the VCR, and CD and cassette recording. Today with mass availability of copies of music and movies, the content community has used congress, courts, and the media to challenge new technologies. Shapiro says that he believes that hardware and software companies have an interest in working together to see more products,  and that they can misuse source protection and DVD encryption to sell more products while limiting new technologies. Shapiro says that lawsuits have shut down file -sharing services, threaten peer-to-peer networks, challegenged as illegal devices which allow consumers to skip commercials, and has subpoenaed ISPs to identify downloading subscribers. Congress has introduced legislation that will require technology to be shaped by a government-mandated copy protection system. Shapiro comments on the language used by Hollywood and the music industry using words like "piracy" and "stealing" to describe downloading. Shapiro asserts that downloading is neither illegal nor immoral. He says that downloading is not taking away a copy of the product from someone, and in some cases helps promotion. His principles for policymakers to follow ask that a very high amount of evidence be found before restricting technology.

            For my research on MP3 blogs and why copyright holders are willing to waive some of their copyrights and allow the blogs to post their music this speech shows a view which is far to the fair-use and weak copyright law. It is clear support for allowing the new technologies and the internet to be created and exist, and for there to be significant evidence of a negative effect on the copyright holder before the technology is restricted. The key line by Shapiro for my project is when he submits that downloading off the Web is neither illegal nor immoral. He sites fair use as being given on a case by case basis and that in many cases of downloading the use has "been shown to be neutral or beneficial to the copyright owners, and have either been tolerated or accepted as fair use." He also discusses how downloading can even lead to further sales, when people buy the whole CD from the song he or she heard on the internet.

    In Chapter 5 of Free Culture, Lawrence Lessig lays out anecdotes and archetypes of all manner of piracy.  The duplication of copyrighted CDs and DVDs in foreign markets is touched upon, but one of the main salient points is his defense of Peer-to-Peer file sharing networks, the groundbreaking networks and servers which made Section 512 absolutely necessary and the rulings on which still protect YouTube from harm.

    One of Lessig’s major talking points is his attribution of the four archetypal uses of P2P networking: stealing music, sampling music before buying, access to abandonware or other copyrighted content that is no longer available by traditional means, and those who search for content that has no copyright or a Creative Commons license and is meant to be shared.

    This is a highly utopian view of both P2P networking and the internet, but at the very least interesting to consider.  Lessig goes on to discuss drops in CD sales and later Jack Valenti’s ridiculous claims about VCRs as “tapeworms,” just waiting to drive the industry down.  If anything, the VCR and file-sharing networks both paved the way for the kind of content generation and also server networks that my final project will use and draw attention to.

The Digital Media Consumers’ Rights Act of 2005 proposes greater care taken by the music industry in letting consumers know the types of digital rights management included on compact discs that they buy.  It mentions increasing consumer dissatisfaction with current DRM practices, as well as general confusion by the mass public about the majority of new innovations in DRM technology, many of which are implemented without consumer’s knowledge.

    It finds most discs to be inadequately labeled with copy-protection warnings, and assures that it is deemed deceptive and unlawful for compact discs to be sold with inaccurate advertising of their digital copyright restrictions.  In this case, certain discs with copy protection must be clearly labeled that they are not, in fact, regular audio compact discs and that they may not be able to be played in some devices capable of playing compact discs.

    This law can only serve as support for the anti-DRM movement, which would find it even easier to warn people about DRM if items such as this were clearly labeled.  This is legislation concerning a number of digital restrictions that already exist in other formats, but are being brought to light more because of a lack of implementation of these technologies at their outset.

"Piracy battle a global one, Shiner tells AFM attendees." Hollywood Reporter -- Internaional (2005) Vol. 391 Issue 37, p96-96, 1/3p

This article from the Hollywood Reporter describes the message given y Josette Sheeran Shiner on behalf of the US Secretary of State at the American Federation of Musicians.  Shiner states that international intellectual property protection is important for everyone, not just studios in Hollywood.  Shiner states that the problem of intellectual piracy is rampant in the world in nearly all sectors, not just entertainment.

            Shiner credits the MPA for its work protecting film products, but she states that the problem is much broader than the ‘audiovisual sector.’  The same problem that exists with intellectual piracy in film also exists with “manufactured good from baby foods to automobile parts,” Shiner states, highlighting the need for better protection.  In attempts to strengthen protection of US goods, the United States has joined APAC and the G8 with hopes of timely positive results.

            As countries develop protection against piracy, Shiner claims that they tend to strengthen their own investment and brand names as well.  Shiner refers to China as a region in which positive progress has been made to protect intellectual property with encouraging results.

            This article points to the fact that countries that better protect intellectual property, better protect their own property, and in turn help cultivate it.  Intellectual property theft is extremely common in China and as steps are taken to protect rights, brands and exports are cultivated and delivered to the rest of the world.  Piracy in China has greatly hurt the Chinese film industry however, as law enforcement of intellectual property improves, the cultivation of film improves.

            American cinema benefits from this through distribution and potential value for American remakes of movies.  Few mainland Chinese movies are released in America due to the lack of quality from extensive piracy.  However, once practices change, both China and the United State can greatly benefit from better product production, distribution, and authorized adaptation.