Washington Journal of Law, Technology and the Arts
SEATTLE--University of Washington School of Law today published the Winter 2011 issue of the new Washington Journal of Law, Technology & Arts, the nation’s first student-run electronic law journal focusing on technology, commerce, and artistic innovation.
The Washington Journal of Law, Technology & Arts publishes concise legal analysis aimed at practicing attorneys. The Journal publishes on a quarterly basis. This quarter’s edition includes five articles on topics such as:
- The "Three Strikes" Policy in Korean Copyright Act 2009
- Antitrust Liability for Denying the Authenticity of Artwork
- Evaluating an Investor’s Secondary Copyright Infringement Liability
- Exportability’s Effect on Process Patent Enforcement
- Copyright Protection of Short Portions of Text in the United States and European Union
This issue's lead article, "The "Three Strikes" Policy in Korean Copyright Act 2009: Safe or Out?" is written by Sun-Young Moon, a Professor of Law at Sookmyung Women’s University in Seoul and Daeup Kim, an L.L.M. candidate at Sungkyun Kwan University in Seoul. The article describes how Korea revised its copyright laws to protect intellectual property from infringement. The new Korean Copyright Act allows the Minister of Culture, Sports and Tourism to issue orders to delete infringing content, suspend accounts, and allow the Korea Copyright Commission to issue correction recommendations. Under the "three strikes" policy, accounts are only suspended after three warnings. Online service providers can be fined up $9,000 USD for failing to respond to a correction recommendation.
Korea's new “three strikes” policy has raised several constitutional concerns including free speech violations, violation of separation of powers, and due process concerns. Moon and Kim argue, however, that the policy has sufficient protections to ensure constitutionality.
Nevertheless, the authors recommend several policy revisions to make the new law more effective. First, preventive education about the cost of copyright infringement and the lawful alternatives to infringement could be used before shutting down internet service with a correction orders. The goal would be to intervene early to prevent future repeat infringement. Second, the authors recommend no prosecuting youth or those who are infringing on copyright for personal use. Instead they recommend imposing training and education obligations on non-commercial infringers.
Gareth S. Lacy, the Editor-in-Chief of the Washington Journal of Law, Technology & Arts, wrote this issue's second article, "Standardizing
Warhol: Antitrust Liability for Denying the Authenticity of Artwork,"
which analyzes the legal battle between an art collector, Joe Simon-Whelan, and the Andy Warhol Art Authentication Board.
Simon-Whelan sued the Board after being told his painting was not an authenticate Andy Warhol painting, an opinion that rendered the work of art virtually worthless. Simon-Whelan alleged the Board refused to certify the painting to drive up the value of the Warhol Foundation's own art collection.
Lacy's article describes how art collectors have been suing experts for decades after receiving adverse opinions on the authenticity of artwork, but this is the first significant case to involves antitrust law. What makes this recent legal battle interesting is that Simon-Whelan claimed the Board was violating antitrust laws by colluding with the Foundation to drive up the value of the Foundation's art collection. No such legal claim had ever survived the preliminary stages of litigation. In short, Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, is important precisely because the case proceeded to discovery and allowed Simon-Whelan to probe the foundation's inner workings. Although the lawsuit was recently dismissed, the case raised important questions about how the art market operates and who decides whether a painting is real or fake.
Lacy also discusses how antitrust law outside the art world could apply to litigation over the authenticity of artwork.
James Proctor, author of LTA-Blog's first "Freshly Pressed" blog post, wrote this issue's third article, "Capital Punishment": Evaluating An Investor's Secondary Copyright Infringement Liability after Veoh. The article discusses whether investors might be liability for copyright infringement based on the activities of the company in which they invest. In UMG Recordings, Inc. v. Veoh Networks, Inc., the U.S.
District Court for the Central District of California considered claims that investors in a privately-held corporation were secondarily liable for copyright infringement.
Proctor explains that Veoh describes how investors might be liable for copyright infringement committed by the company in which they invested. He points out, however, that the decision is fact-specific and offers incomplete guidance for investors. For example, the court in Veoh found that the investor neither controlled the infringing activities nor reaped direct financial benefit from them. In addition, the court based secondary liability on subjective concepts such as "control," "ability to supervise," "encouragement to infringe,"and "direct financial interest." Proctor recommends obtaining representations and warranties from prospective investment targets as well as negotiating appropriate indemnification if the source of investment is later found to be committing copyright infringement.
The fourth article in this issue, Exportability's Effect on Process Patent Enforcement: Why § 271(f) Export Restrictions Do Not Apply to Intangible Process Claims, is written by Homer Hsu, the Editor-in-Chief of the Law, Technology & Arts Blog. Hsu describes a recent federal court decision that held process patents--patents protecting how something is created, rather than a tangible creation itself--are not protected by a federal statute that prohibits U.S.
manufacturers from shipping components overseas to avoid U.S.
Hsu explains that Congress enacted 35 U.S.C. § 271(f) to prohibit shipping patented devices in smaller components for assembly overseas.
But it has been unclear whether § 271(f)—which clearly applies to physical things—also applied to process claims. Hsu describes how the recent decision Cardiac Pacemakers, Inc. v. St. Jude Med Inc., held that § 271(f) does not apply to process claims because a component of a process claim is an intangible step that cannot be physically supplied. The article discusses the implications of the decision for those who hold process patents in the United States. Hsu concludes the although § 271(f) offers limited protection against those who might use process patent information overseas, patent attorneys might be able to respond by seeking out tangible combinations element that occurring during intangible processes.
This issue's third article, How Much is Too Much? Copyright Protection of Short Portions of Text in the United States and European Union After Infopaq International A/S v. Danske Daglades, is written by Connor Moran, the Journal's Associate Editor-in-Chief. The recent case Infopaq International A/S v. DanskeDagblades Forening, decided by the Court of Justice for the European Union, held that short excerpts of copyrighted material, which could be lawfully copied in the U.S., would be illegal copyright infringement in European Union member states. In the United States, copying short phrases only infringes on copyright if the phrase is particularly unique. But the European Union Information Society Directive grants exclusive right to even partial reproductions.
Moran's article examines the standards for copyright infringement of small sections of text in the United States and European Union after Infopaq. In the Infopaq case, the European Court of Justice read the Directive to apply to eleven-word sentence fragments so long as those fragments demonstrated the author’s intellectual creation. Moran concludes that E.U. copyright protections may be stronger than those in the United States. In the U.S. there is a defense known as the de minimis defense, which often permits copying short fragments of text so long as the phrase is not especially unique or key to the original work. By contrast, the European Court of Justice did not recognize such a defense, opening the door to national courts finding illegal reproduction when fragments of sentences are copied.
The Journal's five articles demonstrate the Editorial Board's commitment to publishing cutting-edge legal analysis on a broad range of issues. The Journal is the nation’s first technology and law journal that also publishes articles involving the arts. This new focus allows the Journal to play a key role in furthering the University of Washington School of Law’s reputation as a center of innovation and path-breaking legal research. The Journal replaced the Shidler Journal of Law, Commerce + Technology in 2009 as part of a merger with the Law, Technology & Arts Group (LTA), a research group at the law school. LTA was formed to take a comprehensive approach to legal issues involved in artistic and technological innovation. LTA consolidated the J.D. and LL.M. programs, the former Shidler Center for Law, Commerce + Technology, and the Center for Advanced Research in Intellectual Property (CASRIP) into a single research unit covering the full scope of these areas.
The Journal accepts outside submissions from students, law professors, and practicing attorneys. For more information about the Washington Journal of Law, Technology & Arts please visit their new website. A link to download the entire Winter 2011 issue of the Washington Journal of Law, Technology & Arts is available at www.law.washington.edu/wjlta.