Site Navigation Page Content

Volume 3 | Number 1

Volume 3 | Number 1 (Winter 2003)

You may download and read the Full Edition, or click on a citation below for the individual articles.

FAIR IS FAIR, EVEN ON THE INTERNET: THE FEDERAL TRADE COMMISSION CRACKS DOWN ON CYBER-BULLIES WHO PAGEJACK AND MOUSETRAP FOR PROFIT
Joey Foxhall
3 Wake Forest Intell. Prop. L. J. 1

This paper addresses some of the latest legal challenges in protecting consumers and regulating the Internet. First, the author explains the manner in which unwary consumers may be misdirected to unauthorized copies of legitimate websites through processes known as “pagejacking” and “mousetrapping”. An examination of various technological and legal remedies follows, but the main focus of the paper is the Federal Trade Commission’s civil lawsuits for unfair and deceptive trade practices. Ultimately, the author concludes that while legal remedies are favorable to technological solutions, the Federal Trade Commission may not be the best entity to regulate these arguably illegitimate practices.

COPYRIGHT REMEDIES AND THE FIRST AMENDMENT: PREDICTABLE AS THE WIND?
Zaneta Moore Wood
3 Wake Forest Intell. Prop. L. J. 13

This paper discusses the conflicting objectives of protecting creative expression through copyright law and protecting free expression under the First Amendment. First, the author examines past cases in which the courts have analyzed the scope of copyright protection and the application of the First Amendment. Attention is then turned toward the recent case of SunTrust v. Houghton Mifflin Company in which the court permitted publication of The Wind Done Gone (a critical parody of Gone With the Wind) over the objections of Gone With the Wind’s copyright holders. Following analysis of the SunTrust decision, the paper “concludes that there is a need for clarification on the copyright-First Amendment tension and considers reasons why certain inconsistencies continue to arise.”

THE RECOGNITION OF LOST LICENSES AS AN ACTUAL DAMAGE AND MEANS OF RECOVERY IN COPYRIGHT LAW
Robert Travers
3 Wake Forest Intell. Prop. L. J. 33

The Copyright Act of 1976 limited the remedy for infringement of an unregistered copyright to actual damages to the copyright owner or any additional profits gained by the infringer. Therefore, copyright owners who could not prove personal damages or increased infringer’s profits were without legal recourse. Recognizing this disparity, the Second Circuit ruled that copyright holders can collect lost licensing fees as actual damages and satisfied the legal and moral obligation to “pay for what you take.” Also, the ruling strikes a balance between promotion of the arts and sciences and allowing copyright holders to be compensated for their work. Although the recovery fees will be modest at best, it provides the copyright holder with a legally recognizable claim that may encourage infringers to pay for overlooked licensing fees in lieu of legal proceedings.

THE CLAIM CONSTRUCTION QUAGMIRE: A CALL FOR MORE GUIDANCE AND THE FEDERAL CIRCUIT’S RESPONSE
J. Mark Wilson
3 Wake Forest Intell. Prop. L. J. 55