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Volume 10 | Number 3

You may download and read the Full Edition, or click on a citation below for the individual articles. Journal content dating from 2005 is available on the Lexis-Nexis database. Content dating from 2006 is available on the HeinOnline database. Journal content, starting with Volume 8, is now available on the Westlaw database. (subscriptions required).

COPYRIGHT BASICS: FROM THE EARLIEST TIMES TO THE DIGITAL AGE
Laura N. Gasaway
10 Wake Forest Intell. Prop. L.J. 241

This year marks a momentous time in the history of copyright law; 2010 is the 300th anniversary of the British Statute of Anne, the first modern copyright law that influenced our own Congress to enact the first U.S. copyright law just three years after ratification of the Constitution. It is also the 100th anniversary of the effective date of the Copyright Act of 1909, the statute that immediately preceded the current Act. This is also a time when there is tremendous strain on copyright law brought about by the digital environment. In my opinion, the strain also highlights the fact that the United States has moved away from a principled approach to copyright and has instead focused on solving particular problems for individual copyright industries. Thus, the statute itself lacks both coherence and a theoretical underpinning that makes sense to ordinary people. This has resulted in greater tensions between the users of copyrighted works and the owners of copyrights in unprecedented new ways, further complicated by the advent of the digital age and the Internet. This article explores the history of copyright law, explains the basic principles of copyright law and copyright infringement, and identifies the copyright concerns manifested by the internet and digital media.

THE MORAL OF THE STORY. . . MUSICAL ARTISTS MUST PROTECT THEIR OWN RIGHTS IN DIGITAL MUSIC
Kimberlianne Podlas
10 Wake Forest Intell. Prop. L.J. 265

The advent of digital music did more than provide a new means for distributing, listening to, and stealing music. It also paved the way for new players to enter the music business, ushered in new consumptive trends, and ended the reign of the CD. Notwithstanding the variety of rights and economic interests implicated, discourse about digital music tends to focus on one issue, piracy, and one set of interests, those of Business. This institutionalizes pro-business frames, while minimizing competing interests and facts that undermine them.

This article asserts that the piracy story privileges Business at the expense of the artist. Indeed, the story marginalizes their interests and may even impede the development of a sustainable digital music mart that would lead to increased revenues. Accordingly, this article identifies areas in which the interests of musical artists are distinct from or at odds with those of Business (such as free distribution of music, DRM, and pricing of digital tracks) and emphasizes neglected information that helps produce a fuller picture of the issues involved in digital music. From this foundation, the article argues that artists should neither surrender to Business’s desires nor believe that it will protect them: Simply, Business is not a white knight duty-bound to protect artists, but sometimes a wolf in sheep’s clothing.

NAVIGATING THE OPEN SOURCE MINEFIELD: WHAT’S A BUSINESS TO DO?
T. Robert Rehm, Jr.
10 Wake Forest Intell. Prop. L.J. 289

It goes without saying that computers and the software programs that run on them permeate virtually every aspect of our professional and personal lives. For many years, software developers licensed their software products pursuant to a regime designed to vigorously protect the developers’ proprietary intellectual property rights in those products. Licensing software in object code form only and contractually prohibiting access to and use of the source code of such products – i.e., a “closed” source licensing approach – have been and continue to be hallmarks of that regime.

In recent years some software developers have adopted a different approach to licensing software, which permits licensees to not only access the software source code but also reproduce, distribute, and even modify the source code with a view to providing more opportunities for enhancing the software’s capabilities and correcting its shortcomings. This new approach has caused a good bit of confusion, and resulting consternation, among organizations that rely in any way on software in conducting their businesses. The most often asked questions are: does (or should) the organization use any open source software in its business? If the organization does use (or plans to use) such software, what steps, if any, should be adopted and implemented to maximize the benefit, while managing the risk, associated with such software?

These rather open-ended questions hopefully will come into sharper focus by the time we reach Part III of this article, at which time we will address them head-on. With that objective in mind, this article sets out to (1) explain, from both legal and business perspectives, the traditional (i.e., “closed” source) model of licensing computer software and the “open” source licensing model, (2) identify the common ground and highlight some of the more important differences in the two models, (3) comment on the ongoing viability of the open source model as a licensing methodology, and (4) provide information that a business can use to assess whether open source software meshes well with the business’s goals and objectives.

INSTALLED BASE OPPORTUNISM AND THE SCOPE OF INTELLECTUAL PROPERTY RIGHTS IN SOFTWARE PRODUCTS
Andrew Chin
10 Wake Forest Intell. Prop. L.J. 323

The legal ambiguity over patent licensing poses obvious difficulties for antitrust enforcers tasked with prosecuting companies that monopolize markets in high-tech industries. Until recently, however, the Justice Department manifested little interest in pursuing cases that might clarify the law in this area. The agency under Bush brought no monopolization cases, as then-Sen. Barack Obama critically observed during his presidential run.

In the United States v. Microsoft decision almost nine years ago, the U.S. Court of Appeals for the District of Columbia made clear that the possession of a copyright does not confer immunity from monopolization liability on acts involving the restrictive licensing of the copyrighted work. In interpreting the anti-monopolization provisions (Section 2) of the Sherman Act, the courts have been less clear about the potential for liability that may arise from the refusal to license a patented product.

The Antitrust Division’s recently reported opening of an investigation into IBM’s conduct in the mainframe computer industry appears to confirm this shift in Section 2 enforcement, and raises the possibility that the agency will seek clarification from the courts as to whether and when the restrictive licensing of patented technology can give rise to monopolization liability. The investigation appears to arise from complaints that IBM has blocked competitors from building IBM-compatible mainframes by refusing to license patents needed to achieve compatibility, but may extend to a wider range of conduct.

Should the investigation lead to an enforcement action, the courts will have a further opportunity to clarify the antitrust obligations and intellectual property rights of a monopolist who relies primarily on patents, rather than copyrights, to protect its technology. Given IBM’s importance to the information technology industry as the owner of the world’s largest patent portfolio, such a case could be accurately described as the patent-oriented sequel to the Microsoft litigation, which itself had been cut short in 2001 by a regime change at the Justice Department.

In contrast to the D.C. Circuit’s dismissal of Microsoft’s copyright counterclaims, antitrust challenges to IBM’s current mainframe licensing practices thus far have encountered broad judicial deference to IBM’s patent rights. The purpose of this Article is to analyze and critique these contrasting approaches and to situate the current litigation and investigation involving IBM in the still-unsettled doctrinal context at the intersection of intellectual property and antitrust law.