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ICANN
See Internet Corporation for Assigned Names and Numbers
IDENTITY THEFT
Identity theft is the assumption of another’s identity. The most common motive for identity theft is fraud; the criminal assumes the victim’s identity in order to use the victim’s credit cards, open new credit card accounts, make purchases, take out loans, or otherwise use the victim’s identity to obtain money, goods, or services. Identity theft may also be used by terrorists and ordinary criminals hoping to avoid the authorities, by persons wishing to circumvent immigration laws, and by spies for companies and governments. In most cases, the victim is targeted for identity theft for reasons of convenience: the victim may bear a physical resemblance to the thief or may be of the same age and gender, or the thief may choose a particular victim simply because that victim’s personal identifying information is available to the thief. Occasionally, identity theft is motivated by a wish to cause harm to a particular victim; the thief may use the victim’s identity to make it appear that the victim has committed a crime or other reprehensible act. In addition, identity thieves are criminals who may commit crimes other than the identity theft itself, and their crimes may sometimes be blamed on the victim whose identity was being used at the time the crime was committed.
In order to steal another person’s identity, the identity thief needs to assemble several pieces of information. The victim’s name, birth date, gender, race, place of birth, father’s name, and mother’s name can all be obtained from public birth certificate records. The mother’s maiden name, if different, can then be obtained from marriage records. If the victim is a homeowner, the victim’s home address can be obtained from county property records, as can the price paid for the property, the victim’s marital status, how much money has been borrowed against the property, and the names and addresses of the lenders.
This information alone is enough for a diligent identity thief to construct an entirely fictitious identity, which can then be used in fraudulent transactions. Most identity thieves are lazy, though, and prefer to take shortcuts. Identity theft is far easier if the thief has additional information about the victim, such as the victim’s social security number, employer and salary information, bank account numbers, and credit card numbers and expiration dates. There are several ways in which thieves may acquire this information. They may steal the victim’s wallet, purse, or checkbook; the theft may be temporary, so that the victim never notices that the item is missing. Thieves may steal employee records from a company in which they work, or may raid dumpsters looking for documents with the desired information. They may steal or divert the victim’s mail (FTC ID Theft 2012). A thief who can acquire a copy of a victim’s tax return will have all of the information he or she needs.
The Internet may serve as a means of identity theft as well. Hackers can obtain salary, credit card, and other information from the records of employers and retailers. Hacking of this sort, however, requires a high level of technical sophistication. Far simpler are phishing scams, in which the thief sends a message to the victim purporting to be from a bank or credit card company. Typically, the message claims that for security reasons it is necessary for the victim to confirm his or her account number and other identifying information, and warns that if this is not done within a certain time, the victim’s account will be suspended (FTC Phishing Scam 2006). Phishers make use of spam techniques to send millions or hundreds of millions of copies of the message; if only one person in a million is gullible enough to respond to the message, the scam will still have succeeded.
Identity theft can cause damage that can take years for the victim to correct. Even if the thief is apprehended and the misuse of the victim’s identity is halted, bills for purchases and loans initiated by the thief will continue to be reported to credit agencies. Victims may be refused jobs, loans, or rental housing based on the actions of the identity thief, as reported to credit agencies under the victim’s name. In extreme cases, victims of identity theft may even be arrested for crimes committed by the thief (FTC ID Theft 2012).
Through its Identity Theft Web site at http://www.ftc.gov/idtheft, the Federal Trade Commission (FTC) collects information on identity theft and offers advice both on preventing identity theft and on repairing the damage if one becomes a victim. A wide variety of federal and state laws also address identity theft. Many of these are preexisting laws regarding fraud, embezzlement, theft, wire fraud, and so forth. Others have been created specifically to deal with the problem of identity theft. Federal statutes in this latter category include the Identity Theft and Assumption Deterrence Act of 1998, the Internet False Identification Prevention Act of 2000, the Fair and Accurate Credit Transactions Act of 2003, the Identity Theft Penalty Enhancement Act of 2004, the SAFE ID Act of 2004, and the Identity Theft and Restitution Act of 2008.
The Identity Theft and Assumption Deterrence Act of 1998 added a new paragraph to 18 U.S.C. § 1028(a), the statute forbidding the use or transfer of unauthorized or false identification documents. The new paragraph makes it unlawful for any person to “knowingly [transfer or use], without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law” (18 U.S.C. § 1028(a)(7)). This defines the crime that is at the heart of identity theft: the use of false identification, whether in the form of a physical document or an electronic password and account number, to commit some other crime. While the preceding six subsections of § 1028(a) refer to “identification documents,” § 1028(a)(7) refers to “means of identification,” an apparent acknowledgment that Internet and telephone transactions may rely on means of identification that do not involve physical documents. “Means of identification” is defined in the Act as:
any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any—
(A) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number;
(B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
(C) unique electronic identification number, address, or routing code; or
(D) telecommunication identifying information or access device . . . (18 U.S.C. § 1028(d)(7)).
These are the type of information that might be obtained from tax returns or employee records, or by phishing.
The Internet False Identification Prevention Act criminalized some types of distribution of counterfeit identification documents and credentials over the Internet that had been left uncovered by loopholes in prior laws; among other things, the Act made it a crime to transfer a false or unauthorized identification document by electronic means (Towle 2004, 268). The Fair and Accurate Credit Transactions Act (FACT) amends the Fair Credit Reporting Act in several ways; among its goals is the protection of consumers from the adverse credit consequences of identity theft and the protection of both consumers and credit card companies from the theft of identifying information that can be used in identity theft. There is potential for inconsistency or conflict between FACT and state law, and it may be some time before the complexities of the relationship between FACT and state laws are fully worked out (Towle 2004, 270–271).
The Secure Authentication Feature and Enhanced Identification Defense Act of 2003, or SAFE ID Act, was signed by President Bush on April 30, 2004. The SAFE ID Act adds yet another new paragraph to 18 U.S.C. § 1028, and further erases the distinction between “documents” and “means of identification” in the remaining paragraphs of § 1028(a) by adding the words “authentication feature” to the word “document” in sections 1028(a)(1) through 1028(a)(6). This change brings these six paragraphs up to date with § 1028(7), added by the 1998 Federal Identity Theft and Assumption Deterrence Act, and recognizes that physical documents are no longer required for identity theft. The new paragraph added by the SAFE ID Act makes it a crime to “knowingly [traffic] in false or actual authentication features for use in false identification documents, document-making implements, or means of identification” (18 U.S.C. § 1028(a)(8)). The “authentication features” addressed by the Act include “any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the issuing authority on an identification document, document-making implement, or means of identification to determine if the document is counterfeit, altered, or otherwise falsified” (18 U.S.C. § 1028(d)(1)).
The Identity Theft and Penalty Act of 2004 added increased penalties for “aggravated identity theft,” meaning the use of the identity of another for the commission of a felony (18 U.S.C. § 1028A). The Identity Theft and Restitution Act of 2008 allowed federal (rather than state) courts to prosecute identity thieves even if the thieves reside in the same state as their victims (18 U.S.C. § 3663(b)). The 2008 Act also provided that a victim may be reimbursed not only for direct losses from the theft, but also for time spent “remediat[ing] the intended or actual harm incurred by the victim from the offense” (18 U.S.C. § 3663(b)).
For consumers, avoiding identity theft remains a concern. While there is no way to avoid a skilled and determined identity thief, there are ways to avoid being an easy target. Consumers should shred tax returns, credit card receipts, paycheck stubs, and similar identifying documents, rather than merely throwing them away. Credit card numbers and other financial information should never be given to unknown persons. Internet phishing is easy to detect: legitimate banks, credit card companies, retailers, Internet service providers, and so forth will never have any reason to email customers asking for their account numbers. The same logic applies to phone phishing and mail phishing: legitimate businesses and financial institutions will never have a reason to call a customer and ask for his or her account number, nor will they have a reason to send a letter requesting it. Any uncertainty as to whether a request is legitimate can be resolved with a telephone call to the credit card company or other business involved; of course, the consumer should call the telephone number provided on the credit card itself or that obtained from the telephone directory, rather than a telephone number provided on the suspected phishing document. And any time a consumer sees charges on a credit card statement that she does not recognize, she should contact the credit card company.
Statutes
• Fair and Accurate Credit Transactions Act, 117 Stat. 1952, amending and codified at 15 U.S.C. §§ 1681 et seq.
• Identity Theft and Assumption Deterrence Act of 1998, amending and codified at 18 U.S.C. § 1028
• Identity Theft Penalty Enhancement Act of 2004, amending and codified at 18 U.S.C. § 1028
• Identity Theft and Restitution Act of 2008, amending and codified at 18 U.S.C. § 3663(b)
• Internet False Identification Prevention Act, amending and codified at 18 U.S.C. § 1028
• Secure Authentication Feature and Enhanced Identification Defense (SAFE ID) Act, amending and codified at 18 U.S.C. § 1028
Cases
• In re Crawford, 194 F.3d 954 (9th Cir. 1999), certiorari denied sub nom Ferm v. U.S. Trustee, 528 U.S. 1189 (2000)
• In re Rolando S., 197 Cal. App. 4th. 936 (Cal. App. 5th Dist. 2011)
• Andrews v. TRW, Inc., 225 F.3d 1063 (9th Cir. 2000), reversed, 534 U.S. 19 (2001)
See also Federal Trade Commission; Phishing; Spam
Sources and Further Reading
Federal Trade Commission, “How Not to Get Hooked by a Phishing Scam,” FTC Consumer Alert (October 2006), available at http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt127.shtm (visited December 17, 2012)
Federal Trade Commission, “ID Theft” (n.d.), available at http://www.consumer.ftc.gov/features/feature-0014-identity-theft (visited December17, 2012)
Federal Trade Commission, “Phishing” (September 2011), available at http://www.onguardonline.gov/phishing (visited December 17, 2012)
“FTC Releases Consumer Fraud Survey: More than One in 10 Americans Fell Victim to Fraud,” Federal Trade Commission (August 5, 2004), available at http://www.ftc.gov/opa/2004/08/fraudsurvey.shtm (visited February 7, 2013)
“FTC Releases Survey of Identity Theft in U.S.: 27.3 Million Victims in Past 5 Years, Billions in Losses for Businesses and Consumers,” Federal Trade Commission (September 3, 2003), available at http://www.ftc.gov/opa/2003/09/idtheft.shtm (visited February 7, 2013)
Robert Sprague & Corey Ciocchetti, “Preserving Identities: Protecting Personal Identifying Information through Enhanced Privacy Policies and Laws,” 19 Albany Law Journal of Science & Technology 91 (2009)
Holly K. Towle, “Identity Theft: Myths, Methods and New Law,” 30 Rutgers Computer and Technology Law Journal 237 (2004)
INDECENCY
In a loosely defined area between expression entitled to the full protection of the First Amendment and obscenity, which is not protected, lies indecency. Indecent expression is expression that does not conform to “accepted standards of morality.” It may be “vulgar, offensive and shocking” (Pacifica, 438 U.S. 728, 740, 747). It may meet some, but not all, of the elements of the Supreme Court’s three-part test for obscenity. That is, it may be material that:
1. (a) “the ‘average person, applying contemporary community standards’ would find, taken as a whole, appeals to the prurient interest,” or
2. (b) “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law,” or
3. (c) “taken as a whole, lacks serious literary, artistic, political, or scientific value” (Miller, 413 U.S. at 39).
It need not meet all three of these, however; content that meets all three criteria is obscene, not merely indecent.
At the federal level, the most significant and pervasive regulation of indecency is that of the Federal Communications Commission (FCC). The FCC does not regulate the Internet, but does regulate broadcast media—at times with absurd results, as when the FCC’s response to Janet Jackson’s “wardrobe malfunction” at the 2004 Super Bowl invited worldwide mockery of perceived U.S. prudery. Because many providers of mainstream Internet content are also providers of broadcast media, content on these providers’ sites may conform to FCC guidelines regarding indecency.
In the Internet context, there has been little or no effort to regulate indecency of the type exemplified by George Carlin’s notorious “Filthy Words” (aka “Seven Deadly Words”) monologue, the subject of the Supreme Court’s decision in Federal Communications Commission v. Pacifica. Carlin’s monologue is entirely speech, without pictures or other graphic content. It is satirical; it is not designed to appeal to an interest in sex, prurient or otherwise, but to make a point about censorship and, when played on the radio (as it was by the defendant in Pacifica) to challenge what the author and the defendant apparently believe to be unnecessarily heavy-handed censorship. It makes its points, however, by deliberate use of shocking and offensive language and examples.
The entire text of the “Seven Deadly Words” monologue is readily available on the Web; it may be found in, among other places, an appendix to the Supreme Court’s opinion in Pacifica. The widespread availability of this “indecent” content and content like it has aroused no perceptible public or governmental opposition. Rather, concern about indecency has focused on pornography: material that is sexually exciting to some, offensive to others, not obscene or otherwise illegal per se (as child pornography), but generally agreed to be inappropriate for minors. Because the Internet is not a broadcast medium, it is entitled to the highest level of First Amendment protection; the FCC may not regulate Internet content in the way it regulates broadcast television and radio content.
Congress has attempted to restrict the access of minors to pornography, although not necessarily to other forms of indecent content such as Carlin’s monologue, both by regulating the supply side (Web sites containing pornographic content) and the user side. To date, neither approach has proven notably effective, as is evident to even a casual Web surfer.
The first Congressional attempt to regulate Internet content was the Communications Decency Act of 1996 (CDA), which, among other things, imposed penalties for the knowing transmission or display of “indecent” material, including depictions or descriptions, “in terms patently offensive as measured by community standards, [of] sexual or excretory activities or organs” to known minors (47 U.S.C. § 223). The Supreme Court held the CDA to be unconstitutional for several reasons, including the difficulty of defining “indecent,” the difficulty of verifying the age of the recipient or viewer of the content, and the burden placed on noncommercial sites. These problems rendered it difficult or impossible for content providers to know whether they were violating the CDA, and placed a burden on the operators of some sites, especially noncommercial sites (Reno v. ACLU, 521 U.S. 844).
Congress’ second attempt was the Child Online Protection Act (COPA) (47 U.S.C. § 231). The federal Third Circuit Court of Appeals has declared COPA unconstitutional (ACLU v. Reno, 217 F.3d 162; ACLU v. Ashcroft, 322 F.3d 240). The Third Circuit’s opinion in American Civil Liberties Union v. Ashcroft suggested that user-side control, through blocking and filtering software, might be more effective than supply-side control (322 F.3d 240); the Supreme Court agreed that this was a significant factual question, and therefore remanded the case for trial (524 U.S. 656).
Congress has also enacted legislation (the Children’s Internet Protection Act, or CIPA) requiring the use of such software by schools and libraries receiving federally subsidized discounted Internet access (47 U.S.C. § 254(h)); CIPA’s constitutionality has been upheld by the Supreme Court (U.S. v. American Library Association, 539 U.S. 194). In a purely private context, of course, such as a parent’s installation of blocking and filtering software on a child’s computer, there is no First Amendment issue, because there is no state action.
The current problems with blocking and filtering software are not legal but technical. Blocking and filtering software may operate by allowing access only to an approved list (“whitelist”) of sites, or by prohibiting access to sites on a proscribed list (“blacklist”). It may look for digital certificates of sites that comply with certain standards, or search a site for proscribed keywords. The first approach is effective, but extremely restrictive and suitable only for very young children. Serious online research requires access to a large number of Web sites, many of which will not be whitelisted even though their content is utterly innocuous. The blacklist approach presents the flip side of this problem; for a variety of reasons, many sites containing indecent material will be omitted from the blacklist. The proscribed-keyword approach presents both of these problems: like the whitelist approach, it is over-inclusive; like the blacklist approach, it is under-inclusive. It is over-inclusive because keywords used to identify indecent content may appear on almost any Web site as part of otherwise innocuous content; the proscribed words may appear in academic journals, news stories, encyclopedias, dictionaries, judicial opinions, the text of novels or screenplays, and medical advice Web sites. And it is under-inclusive because Web sites may contain indecent images without containing any of the proscribed words; this is especially true of foreign-language sites.
A hybrid approach that holds promise is the creation of a new top-level domain to which pornographic content, although not other indecent content, could be restricted; children’s Web browsers could then be set to block this domain. After many years of debate, in 2011, the Internet Corporation for Assigned Names and Numbers (ICANN) approved the “.xxx” sponsored top-level domain (sTLD). The .xxx sTLD is sponsored by the International Foundation for Online Responsibility (IFFOR), an organization devoted to self-regulation of the pornography industry; according to its own Web site, the IFFOR’s goals are to:
• Promote user choice, parental control, and the development and adoption of responsible business practices designed to combat online child abuse images.
• Protect free expression rights as defined in the United Nations’ Universal Declaration of Human Rights, Article 19.
• Protect the privacy, security, and consumer rights of consenting adult consumers.
• Foster communication among Internet stakeholders (IFFOR 2013).
The actual operation of the .xxx sTLD registry is carried out by ICM Registry LLC, a company created by entrepreneur Stuart Lawley for that purpose. ICM has applied for additional TLDs for the pornography industry, including porn, although at present the .xxx sTLD is far from oversubscribed.
Nor has the existence of the .xxx domain reduced the presence of pornography in other TLDs. There are two reasons for this: first, the pornography industry grew and matured online before the .xxx domain came into existence; there is no incentive for pornographers to abandon profitable Web sites (even to the minimal extent of replacing the content at those sites with a redirect to a .xxx site) and move the content to the .xxx TLD. Second, there is no disincentive to keeping the content where it is now. The goal of keeping pornographic content quarantined in its own area of the Internet could best be accomplished by the legislative imposition of penalties for online pornographic content, combined with a safe harbor provision exempting content on the .xxx sTLD from those penalties. If crafted as a constitutionally acceptable time, place and manner restriction, rather than an unconstitutional outright ban, this would provide the necessary disincentive to leave pornographic content where it is, with a simultaneous incentive—the safe harbor—to move the content to the .xxx sTLD. At the moment, however, Congress seems to lack the political will to enact such legislation.
Some pornographic content would inevitably remain. Other forms of indecency, such as the transcript of Carlin’s monologue, would also continue to be available, but there has been little expression of public concern over such a possibility.
The problem of indecent spam (unsolicited bulk-mailed email advertising) is a more difficult one to address. Most providers of indecent content on the Web have no particular wish to make their content available to minors. Spammers, in contrast, are the outlaws of the Web; they know that no email recipient wants to receive their message, and they know that individuals and Internet service providers (ISPs) employ software designed to screen out their messages. They design their messages to be as difficult to screen out as possible, and have no incentive to assist recipients in blocking indecent content. The problem of blocking indecent spam is thus inseparable from the problem of blocking all spam, a problem that has thus far defied both legislative and technical solution.
Statutes
• Child Online Protection Act, 47 U.S.C. § 231
• Children’s Internet Protection Act, 47 U.S.C. § 254(h)
• Communications Decency Act of 1996, Pub. L. No. 104–104, § 502, 1996 U.S.S.C.A.N. (110 Stat.) 56, 133 (later codified at 47 U.S.C. § 223)
Cases
Supreme Court
• Ashcroft v. American Civil Liberties Union, 524 U.S. 656 (2004)
• Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
• Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978)
• Federal Communications Commission v. Fox TV Stations, Inc., 132 S. Ct. 2307 (2012)
• Miller v. California, 413 U.S. 15 (1973)
• Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
• United States v. American Library Association, Inc., 539 U.S. 194 (2003)
Federal Appellate Courts
• CBS Corp. v. Federal Communications Commission, 663 F.3d 122 (3d Cir. 2011)
Federal Trial Courts
• Cyber Promotions v. America Online, 948 F. Supp. 456 (E.D. Pa. 1996)
• Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F. Supp. 2d 783 (E.D. Va. 1998)
See also Censorship; Child Online Protection Act; Children’s Internet Protection Act; Communications Decency Act; Constitutional Law; First Amendment; Obscenity; Pornography; Spam; .xxx
Sources and Further Reading
Jerome A. Barron & C. Thomas Dienes, Constitutional Law in a Nutshell (St. Paul, MN: West, 7th ed. 2009)
Tim Elfrink, “.XXX Sites Are Live Thanks to Stuart Lawley, A South Florida Brit Who Beat the Bush Admin,” Miami New Times (December 8, 2011), available at http://blogs.miaminewtimes.com/riptide/2011/12/xxx_sites_are_live_thanks_to_s
.php (visited February 7, 2013)
International Foundation for Online Responsibility (IFFOR), “Overview” (n.d.), http://www.linkedin.com/company/iffor?trk=tabs_biz_home (visited August 26, 2013)
Madeleine Schachter, Law of Internet Speech (Durham, NC: Carolina Academic Press, 3d ed. 2008)
Elizabeth H. Steele, “Examining the FCC’s Indecency Regulations in Light of Today’s Technology,” 63 Federal Communications Law Journal 289 (2010)
INDUSTRIAL DESIGNS
See TRIPS (Industrial Designs)
INTEGRATED CIRCUIT LAYOUTS
See Semiconductor Manufacturing Mask Work Registrations; TRIPS (Integrated Circuit Layouts)
INTELLECTUAL PROPERTY
The right of originators of intellectual creations to a monopoly on the use and reproduction of their ideas for a certain period of time has acquired the status of a property right under the laws of the United States and of most other countries. All of these property rights in ideas, rather than in tangible objects, are collectively referred to as intellectual property. Intellectual property includes the well-known areas of copyright, patent, and trademark, as well as less well-known areas such as trade secrets and know-how (McCarthy et al. 2004, 308). National governments may create new forms of intellectual property when a new category of ideas does not seem to fit in to any of the existing categories of intellectual property. Two such new categories created by the U.S. government are discussed elsewhere in this encyclopedia: copyright-like protection for semiconductor manufacturing mask work registrations, used in the making of computer chips, and copyright-like protection for vessel hull designs (17 U.S.C. §§ 1301–1332).
The advent of personal computing and the Internet has raised a wide variety of intellectual property issues, and threatened to undermine the existence of intellectual property in some areas. The first of these areas is copyright: the Internet has transformed the formerly staid world of copyright law into a battleground. File-sharing threatens to undermine copyright protection in certain types of works, especially recorded popular music, and to bring about the demise of the music content industry. The content industry in general, and the music content industry in particular, has responded to this threat with lawsuits and lobbying. Copyright protection has been strengthened and extended by statutes such as the Digital Millennium Copyright Act and the Sonny Bono Copyright Term Extension Act (17 U.S.C. §§ 301–304, 512, 1201–1204). Proposed legislation would strengthen copyright protection still further; for example, the controversial (and defeated) Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA) would have allowed the government to bring civil suits to enforce the rights of private property holders, as would the later Online Protection and Enforcement of Digital Trade Act (OPEN).
At the same time, the content industry is pursuing technological anti-copying solutions that could potentially tie copies of copyrighted material to a single playback device, and could continue to prevent copying even after the copyright has expired. Many consumers feel that these measures and legislative initiatives such as the SOPA, PIPA, and OPEN go too far; as a result, activists and advocacy groups have brought lawsuits to block enforcement of certain statutes or to challenge certain interpretations of those statutes, and have engaged in lobbying efforts on behalf of consumers (e.g., Eldred v. Ashcroft, 537 U.S. 186). Equipment manufacturers, including computer makers, are caught between the two: on the one hand they are the owners of valuable intellectual property in their own right, but on the other hand their business success depends on pleasing consumers, not on pleasing content owners. Enhanced technological protective measures increase the cost and complexity of playback equipment. Consumers prefer simpler and cheaper equipment, even more so if such equipment can also play back and copy a wider range of material.
While battles over copyright issues capture headlines, the Internet has also led to battles in other areas of intellectual property. In the early days of the Internet, cybersquatters registered domain names incorporating well-known trademarks and then tried to sell those domain names to the trademark owners. Congress responded with the Anticybersquatting Consumer Protection Act, restricting the practice and providing for the transfer of the domain names to the trademark holders when trademark holders were targeted by cybersquatters (15 U.S.C. § 1125(d)). In the mid- and late 1990s, metatag trademark infringement also became an issue: In order to improve their ranking on search engine result pages, Web site operators used trademarked terms as metatags, invisible to the person viewing the page but visible to the search engine. Lawsuits established the limits of trademark protection in such cases and prevented the use of infringing metatags (Playboy, 279 F.3d 796); changes in search engine technology have brought about a decline in the use of metatags as a search engine optimization tool, but questionable search engine optimization practices involving the use of trademarks persist.
Business methods patents, such as a patent for a one-click ordering system on a retail Web site, have also proved controversial. The Internet has also been used to disclose trade secrets—a secret, once published on the Internet, is secret no more.
Statutes
• Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d)
• Copyright Act of 1976, 17 U.S.C. §§ 101–1332
• Digital Millennium Copyright Act, Pub. L. No. 105–304, 17 U.S.C. §§ 512, 1201–1205
• Lanham Trademark Act, 15 U.S.C. §§ 1051 et seq.
• Patent Act, 35 U.S.C. §§ 1 et seq.
• Sonny Bono Copyright Term Extension Act, amending and codified at 17 U.S.C. §§ 101, 108, 110, 201, 301–304, 512
• Vessel Hull Design Protection Act, codified at 17 U.S.C. §§ 1301–1332
Proposed Legislation
• Intellectual Property Enforcement Act of 2007, S. 2317, 110th Cong. (1st Sess. 2007)
• Protecting Intellectual Rights against Theft and Expropriation (PIRATE) Act of 2004, S. 2237, 108th Cong. (2d Sess. 2004)
• Stop Online Piracy Act, H.R. 3261, 112th Cong. (1st Sess. 2011)
• Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT IP) Act of 2011, S. 968, 112th Cong. (1st Sess. 2011)
Cases
• Eldred v. Ashcroft, 537 U.S. 186 (2002)
• Playboy Enterprises, Inc. v. Welles, 279 F.3d 796 (9th Cir. 2002)
See also Activism and Advocacy Groups; Business Method Patent; Copyright; Cybersquatting; Digital Millennium Copyright Act; Digital Millennium Copyright Act, Title V; File-Sharing; Metatags; Online Protection and Enforcement of Digital Trade Act; Patent; Protect Intellectual Property Act; Search Engine; Semiconductor Manufacturing Mask Work Registrations; Sonny Bono Copyright Term Extension Act; Stop Online Piracy Act; Trademark; Trade Secret
Sources and Further Reading
Ross A. Dannenberg et al., eds., Computer Games and Virtual Worlds: A New Frontier in Intellectual Property Law (Chicago: American Bar Association Publishing, 2010)
Michael H. Davis & Arthur Raphael Miller, Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell (St. Paul, MN: West, 4th ed. 2007)
Jane C. Ginsburg, “Copyright in the Digital Environment: Restoring the Balance,” 35 Columbia Journal of Law & the Arts 1 (2011)
Amy L. Landers, Understanding Patent Law (New Providence, NJ: LexisNexis, 2d ed. 2012)
Marshall Leaffer, Understanding Copyright Law (New Providence, NJ: LexisNexis, 5th ed. 2010)
Courtney G. Lytle, Skills & Values: Intellectual Property (New Providence, NJ: LexisNexis, 2011)
J. Thomas McCarthy et al., McCarthy’s Desk Encyclopedia of Intellectual Property (Washington, D.C.: Bureau of National Affairs, 3d ed. 2004)
Robert P. Merges & Jane C. Ginsburg, Foundations of Intellectual Property (New Providence, NJ: LexisNexis, 2006)
Raymond T. Nimmer, Licensing of Intellectual Property and Other Information Assets (Newark, NJ: LexisNexis, 2004)
Aaron Schwabach, Intellectual Property: A Reference Handbook (Santa Barbara, CA: ABC-CLIO, 2007)
INTERNATIONAL COPYRIGHT PROTECTION
Copyrights are granted and enforced, if at all, by national governments. No international or global copyright exists. However, most of the countries of the world have entered into one or more treaties by which they undertake to protect, within their national boundaries, the copyrights of foreign authors. The principal multilateral copyright agreements to which the United States is a party are the Buenos Aires Convention, the Universal Copyright Convention (U.C.C.), the Berne Convention, the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performance and Phonograms Convention, the Brussels Satellite Convention, the Geneva Phonograms Convention, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
From 1891 through 1955, the United States entered into a series of bilateral copyright agreements and one major multilateral agreement, the 1911 Buenos Aires Convention. (An earlier treaty, the Mexico City Convention of 1902, continued to govern U.S. copyright relations with one country, El Salvador, until 1979; other pan-American copyright conventions included the 1889 Montevideo Convention, the 1906 Rio de Janeiro Convention, the 1911 Caracas Agreement, the 1928 Havana Convention, and the 1946 Washington Convention.) The Buenos Aires Convention, to which the United States and 17 Latin American countries are parties, provides that once a work obtains copyright protection in any member nation, copyright protection will be extended by all of the other member nations without requiring further formalities other than a declaration on the work that intellectual property rights are reserved, typically by the word “all rights reserved.” These words probably have no legal significance today, but are included on most published copyrighted works through persistence of prior practice. The Buenos Aires Convention has been, in effect, replaced by the U.C.C. and the Berne Convention, as all states now parties to the Buenos Aires Convention are parties to one or both of the later treaties as well.
The U.C.C. came into existence partly because of the need of the United States for a multilateral copyright agreement at a time when the Copyright Act of 1909 was still in force, making it impossible for the United States to become a party to the Berne Convention. Its principal requirement is that countries accord national treatment to foreign copyrighted works; in other words, that they extend to foreign copyright holders and works published in foreign countries the same copyright protections that they extend to works of their own nationals first published in their own territory. In addition, registration requirements for foreign copyright holders for works published outside the contracting state’s territory are satisfied by the use of the symbol “©” upon the work together with the year of first publication and the name of the person claiming copyright.
The U.C.C. came into force for the United States in 1955 and went through a major revision in 1971 to take into account certain concerns of developing countries, many of which had not existed as independent nations in 1955. At the insistence of those countries who were already parties to the Berne Convention, the U.C.C. includes a Berne Safeguard Clause, which provides that no country that is a party to the Berne Convention may denounce that convention and choose instead to rely on the U.C.C. in copyright matters relating to other parties to the Berne Convention. Now that the United States and most other U.C.C. parties are also parties to the Berne Convention, the U.C.C. is of declining importance, although it continues to govern copyright matters between the United States and the one country that is a party to the U.C.C. but not to the Berne Convention: Cambodia. (Another U.C.C. party, Laos, finally became a party to the Berne Convention on March 14, 2012.)
The Berne Convention, administered by WIPO, is the most important international agreement dealing solely with copyright. Since its creation in 1886, it has been revised six times, most recently in 1971; the United States and most other parties are parties to the 1971 revision as amended in 1979.
Like the U.C.C., the Berne Convention requires national treatment. States parties must grant protection to works first published in the territory of other states parties or created by nationals of those states without formalities. This protection must be granted for a minimum of the lifetime of the author plus 50 years or, for anonymously or pseudonymously authored works, for a minimum of 50 years; for cinematographic works, 50 years from the date the work is released to the public; for photographic works or works of applied art, 25 years. The Berne Convention’s subject matter categories include “every production in the literary and artistic domain whatever shall be the mode or form of its expression.” Enumerated types of subject matter include:
books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science (Berne Convention art. 2(1)).