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Urs Gasser
Former Member
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PublicationType: journal articleVolume: forthcoming
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PublicationLegal Frameworks and Technological Protection of Digital Content: Moving Forward Towards a Best Practice ModelThe increased ability to copy and distribute information, knowledge, and entertainment in the digitally networked age has provoked a series of responses. In order to gain back control, copyright holders have made use of so-called technological protection measures (TPM) - including, for instance, Digital Rights Management (DRM) schemes - that are aimed at regulating the copying, distribution, and use of and access to digital works through code ("code is law"). Activists, in turn, have immediately taken counter-measures and designed tools that enable the hacking of technological protection measures such as copy and access controls. In response, law makers at both the international and national level have enacted legal provisions aimed at banning the act of circumvention of TPM on the one hand and the production and dissemination of circumvention tools on the other hand. Prominent examples of such legislation, among others, are the WIPO Internet Treaties (WCT art. 11 and WPPT art. 18), the Digital Millennium Copyright Act (DMCA sec. 1201), the European Copyright Directive (EUCD, art. 6 and art. 8), and the respective implementations of the EUCD into the laws of EU Member States. Against this backdrop, this paper takes it as its baseline that many countries have already enacted legislation or will soon legislate on TPM in order to comply either with international obligations under WIPO, or with international free trade agreements involving a party that has powerful content industries such as the U.S. Thus, the immediate question before us is no longer whether the second and third layer of protection of digital works is appropriate or viable. Rather, at this stage, attention should be drawn to the alternative design choices that remain with countries that face the challenge of drafting or revisiting a legal regime aimed at protecting TPM. Consequently, the purpose of this paper is to identify different legislative and regulatory approaches and to discuss them in the light of previous experiences with TPM legislation in the U.S. and in Europe. Ultimately, the paper seeks to formulate basic design (or best practice) principles and to sketch the contours of a model law that aims to foster innovation in the digitally networked environment and minimize frequently observed spillover effects of TPM legislation.Type: journal articleJournal: Fordham Intellectual Property, Media & Entertainment Law JournalVolume: 17Issue: -
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PublicationType: journal articleJournal: Yale Journal of Law & TechnologyVolume: 8Issue: -
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PublicationType: journal articleJournal: Aktuelle Juristische Praxis (AJP)Issue: 3
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PublicationCatch-As-Catch-Can: A case note on GroksterIn summer 2005, the United States Supreme Court issued a decision which is surely destined to play a significant role in the interrelation between law and technology in the coming years. The case, Metro-Goldwyn-Mayer Studios Inc., et al. v. Grokster, Ltd., et al., pitted copyright holders against the operators of certain peer-to-peer online file-sharing services and was awaited by many in both the legal and technology communities as a referendum on the landmark legal precedent set in the "Sony-Betamax" case. The Sony case came to represent the legal standard for determining when manufacturers of "dual-use technology" - technology capable of both legally noninfringing and infringing uses - should be given a safe harbor from liability for acts on the part of their consumers which violated copyright law. Surprisingly, the Supreme Court's decision did not center around an affirmation or rejection of the Sony ruling; rather the Court based their opinion on a common law principle which, they held, was not preempted by the holding in Sony. The "inducement" to infringe copyright, although not a completely novel cause of action, has been perceived by some commentators to introduce a change in the legal landscape of secondary liability for copyright infringement. In this article, we provide a brief exposition of the Court's decision and discuss the disposition of the decision including the implication of the two concurring opinions. We also speculate on the impact that the Court's decision will have on the technology sector and on technological innovation in particular. Ultimately, we grapple with new questions which the decision has presented for industry and the continued existence of peer-to-peer file-sharing.Type: journal articleJournal: Schweizerische Zeitschrift für Wirtschaftsrecht SZWVolume: 78Issue: 2
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PublicationType: journal articleJournal: ZZZ: Schweizerische Zeitschrift für Zivilprozess- und ZwangsvollstreckungsrechtIssue: 12
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PublicationType: journal articleJournal: JusletterIssue: 17.07.2006
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PublicationInformation Quality: Organizational, Technological, and Legal Perspectives( 2004)
;Eppler, MartinHelfert, MarkusType: journal articleJournal: Studies in Communication SciencesVolume: 4Issue: 2 -
PublicationType: journal articleJournal: Schweizerische Zeitschrift für Wirtschaftsrecht (SZW)Issue: 1
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PublicationType: journal articleJournal: Schweizerische Juristenzeitung (SJZ)Volume: 97Issue: 18