Infringement Of Intellectual Property Rights Research Articles

The History and Economics of ISP Liability for Third Party Content

The question of whether Internet Service Providers (ISPs) should be liable for providing access to information that proves injurious to others has received enough attention in the preexisting literature that the normative arguments for various possible liability regimes have been substantially addressed. Indeed, courts can hardly pronounce upon the matter one way or another without being criticized as having taken yet another errant swing at Nietzsche's already severely abused nail. Revisiting these arguments is unlikely to provide new insights. Economic analysis, however, offers a unique perspective. Economic analysis has contributed to advances in several fields of legal thought, not the least of which is tort law. Nevertheless, the economic implications of ISP liability for third party content remain undeveloped despite being largely driven by tort considerations. This analysis will consider the economic implications of various liability regimes, and will conclude that relative to the available alternatives, the current regime, in which ISPs are almost completely immune from suit, is the most efficient. Therefore, the ultimate question is not whether an alternative regime would be more efficient, but how modifications to the present regime could maximize its efficiency. Part I of the discussion will present a survey of federal, state, and international case law on ISP liability for third party content, excluding cases addressing vicarious or contributory liability for third party infringement of intellectual property rights.6 This survey will explore how over the past decade, the U.S. standard for ISP liability began as a negligence rule and flirted briefly with a strict liability rule before Congress granted ISPs near-immunity in the Communications Decency Act. Later cases reinforced the noliability rule by expanding the scope of the Act. In contrast, European courts that initially employed a strict liability rule for ISP liability ultimately converged on a negligence rule, giving European ISPs little chance to receive the deference accorded their American counterparts. Part II will approach the issue from a law and economics perspective and consider the economics of various liability regimes, referring to the cases in Part I for illustrative purposes. These regimes are considered in the order in which they appeared in U.S. jurisprudence: negligence, strict liability, and no liability, or conditional immunity. The negligence rule first adopted in the United States and presently employed by European courts holds ISPs liable when they fail to exercise due care in the monitoring of third party content. The strict liability rule, adopted briefly in the United States and for some time in Continental courts, holds ISPs liable for all injuries resulting from third party content. The no liability, or conditional immunity, rule presently employed in the United States holds ISPs almost completely immune from liability for third party content, conditioned only on the minimal responsibilities implicit in Section 230 of the Communications Decency Act. Part II will conclude that as a result of the unique nature of the ISPs' costs in monitoring content and the externalities involved, the present conditional immunity regime is the most efficient of the three. Part III will then consider the present regime on the assumption that, as some have argued, it produces suboptimal levels of monitoring. On this assumption, Part III will analyze how subsidies could remedy the problem of shirking of monitoring duties, concluding that subsidization would be less costly than returning to a liability regime.

Economic Implications of State Sovereign Immunity from Infringement of Federal Intellectual Property Rights

In the aftermath of the Supreme Court's decisions constraining Congress' ability to abrogate state sovereign immunity, Professor Peter S. Menell examines the propensity of states and state actors to infringe federal intellectual property rights, the viability of alternative means of protecting federal intellectual property rights, and potential implications of the Supreme Court's decisions for international intellectual property diplomacy. He concludes that although state sovereign immunity for violations of federal intellectual property rights is unlikely to impair the rights of intellectual property owners because of a broad array of legal, market, social, and political restraints upon states and state actors, such immunity could violate international treaty obligations and complicate foreign diplomacy. These latter concerns potentially provide an alternative basis for congressional abrogation of state sovereign immunity for infringement of federal intellectual property rights.

Strategic trade policy, intellectual property rights protection, and North–South trade

In this paper, we analyze the issue of optimal tariffs when the Northern and Southern firms compete in quantities in an imperfectly competitive Northern market and there are potentially varying degrees of intellectual property rights (IPR) violation by the South. IPR violation is reflected through the leakage of technological knowledge (“spillovers”) from the Northern to the Southern firm creating unit cost reduction. It is shown that optimal tariffs in this framework are always higher than in the simple duopoly model since they serve here not only as profit shifting devices but also as instruments that influence domestic innovative activity, generate scale economies and countervail the IPR violation of the South. The other notable difference from the standard duopoly model is that positive tariffs may be desirable from the world welfare point of view.

Digital watermarking: from concepts to real-time video applications

Digital watermarking has been increasingly applied to hide information in digital multimedia data, thus enlisting the watermarking technology in the difficult fight against intellectual property rights infringement. The authors have developed a secure, robust watermarking algorithm and applied it in digital streaming MPEG-2 format video-the format of choice in the broadcast and video stock industry.

Intellectual property rights violations and spillovers in North–South trade

The article examines the role of technological spillovers when Northern and Southern firms compete in quantities on the common world market and when only the Northern firm is supposed to conduct innovative activity. The intensity of spillovers is interpreted as an indicator of the strength of intellectual property rights (IPR) protection. In this light, the paper reconsiders the questions raised in the recent economic analysis of IPR protection in North–South relations: when and whether the Southern countries benefit, in welfare terms, from protecting IPR; how the North fares in this story; how large is the conflict between the North and South; and what is the optimal level of IPR protection at the world level. The paper shows that the common belief that the South generally benefits from relaxing IPR protection while the North is worse off does not carry over in the applied duopoly model with spillovers. In this respect, the congruence of interests between North and South, with respect to Southern IPR protection regime, should not be an exceptional or even impossible state of affairs.

Genetic Similarity Among Broccoli Inbreds “Essentially Derived” from Commercial Cultivars

DNA markers can assess close genetic relationships between individuals of a crop as when one variety is developed (i.e., “essentially derived”) from another. An acceptable threshold, based on empirical results, should be established for a crop to indicate what constitutes an “essentially derived” variety in the absence of clear pedigree information. Empirical data could help settle infringements of intellectual property rights, but appropriate data are not being generated for most crops. Thus, our objectives were to characterize genetic relationships among broccoli varieties “essentially derived” from known parents using random amplified polymorphic DNA (RAPD) markers as a measure of genotype and to provide an empirical basis for threshold levels in this crop. Six F1 broccoli hybrids and three inbred lines (doubled-haploids) developed from each of the hybrids (24 entries) were evaluated by RAPD analysis. RAPD assays were conducted using 23 different oligonucleotide 10-mers. Of 179 RAPD bands scored, 94 were polymorphic among the entries. Similarity indices were computed from RAPD data, and a multi-dimensional scaling (MDS) plot was constructed. Similarity indices for all pairwise comparisons ranged from 0.40 to 0.90. `High Sierra' and it's derived lines were the most closely related group with indices from 0.81 to 0.90. With `High Sierra', `Sultan', and `Marathon', the three derived lines were more closely related to their respective parental hybrids than were any other entries. The hybrids `Futura', `Everest', and `Viking' were more genetically similar to other entries than to their derived lines. A threshold level based on data from `High Sierra', `Marathon', `Sultan', and their derived lines would not identify “essentially derived” lines developed from other hybrids.

Can trade measures induce compliance with trips?

Protection of intellectual property on the Asia‐Pacific Rim is weak. Piracy, counterfeiting and other violations of intellectual property in Asian economies with rising technical capabilities were the primary motivation for developed countries’ insistence on protection for intellectual property being included in the Uruguay Round negotiations. One of the central elements of the new World Trade Organization (WTO) is the Agreement on Trade Related Aspects of Intellectual Property (TRIPs) whereby all WTO members have committed to strengthening intellectual property protection. Retaliation in the form of trade measures on goods for intellectual property rights violations is the fundamental enforcement mechanism included in the TRIPs agreement. The exact form retaliation will take was, however, left to further negotiations over a five‐year period. This paper examines the retaliation rules available to the WTO and their likely ability to induce compliance with TRIPs’ commitments. The conclusion is that the threat of retaliation on goods is unlikely to be a sufficient deterrent to prevent intellectual property violations. As a result, intellectual property is likely to remain a contentious issue in Asia‐Pacific economic relations.

Actions for Infringement of a Foreign Intellectual Property Right in an English Court

Recent English decisions have paved the way for English courts to apply foreign intellectual property law to the infringement of foreign intellectual property (‘IP’) rights in cases in which the court is seised of jurisdiction pursuant to the 1968 Brussels and 1989 Lugano Conventions. If one defendant can be sued pursuant to the Conventions' rules, the potential exists to consolidate in one English action claims against different defendants for the infringement of intellectual property rights from different jurisdictions. This ability to consolidate infringement actions is subject to Article 16(4) of the Conventions, the requirements of Article 6(1) and RSC Order 11, rule 1(1)(c), and the doctrine of forum non conveniens. However, it appears that in cases in which the court is seised of jurisdiction pursuant to the non-Convention rules, English courts will not be entitled to apply foreign intellectual property laws.

Syntactic clustering of the Web

We have developed an efficient way to determine the syntactic similarity of files and have applied it to every document on the World Wide Web. Using this mechanism, we built a clustering of all the documents that are syntactically similar. Possible applications include a “Lost and Found” service, filtering the results of Web searches, updating widely distributed web-pages, and identifying violations of intellectual property rights.

Optimal Tariff, Spillovers and North-South Trade

This paper investigates the issue of the optimal tariff policy of the domestic country (North) in an environment in which its trade with the foreign country (South) is accompanied by a leakage of technological information (spillovers). Three duopoly games were considered. The first one views spillovers as a parameter. In this setting the Northern government sets the tariff anticipating the subsequent competition between the firms. The second game assumes that the spillovers are a strategic variable under the control of the Southern government. The tariff and the optimal level of spillovers (interpreted as the degree of the intellectual property right protection), are determined now through the interaction between the Northern and Southern governments whose decisions precede the decisions of the firms. In the third game, the Northern government erects a tariff only if it observes the violation of intellectual property rights by the Southern government. Such a tariff is called a punitive tariff.

Violations of Intellectual Property Rights: An Examination of Pacific Region Abuses and Responses

The systematic stealing of patents, copyright ownership and industrial secrets remain a complex and costly dilemma for corporate interests worldwide. Analyses the role which organizations in the Pacific Region have played, both in the cause and control of these abuses. Western manufacturers, artists and writers have charged that interests in Japan, Korea, Singapore and other nations have repeatedly copied software, musical compositions, patents and other intellectual products and that government punishment against perpetrators of these acts has been virtually non‐existent. Further, industrial spying remains a serious threat to the viability of numerous emerging companies lacking sophisticated preventive measures. These companies are vulnerable to legal manoeuvres which have effectively negated any attempt to protect one′s own creations. Concludes with the identification of typologies of these violations so that readers can implement strategic, preventive measures.