La tutela giuridica dei contenuti digitali

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Nonostante le perplessità riportate sull’idoneità delle attuali regole, ancora legate a principi consolidatisi in un contesto pre-tecnologico, i detentori dei diritti ed i fornitori di contenuti non sono pronti a rivedere, nel mondo virtuale, l’ordine che nel mondo reale è stato plasmato a loro immagine per lungo tempo.1 L’industria dei contenuti si è comportata come qualsiasi, operatore economico al quale è concesso un privilegio predisponendosi a mantenere ed estendere il proprio status attraverso tenaci ed incisive azioni di condizionamento nei confronti delle Corti e dei legislatori.2

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The proposed draft of Article 2B grants broad rights to enforce elec-tronically contract provisions governing access to and use of digital works. Purveyors of digital works may engage in electronic self-help following breach of contract, and may also elect to foreclose unauthor-ized uses ex ante, via electronic "regulation of performance." This Arti-cle examines these provisions in light of existing law authorizing self-help repossession of tangible chattels, leading academic justifications for self-help repossession, and federal copyright law and policy. It concludes that the provisions authorize an unprecedented degree of intrusion into private homes and offices, that they lack a sound theoretical basis, and that their adoption would threaten constitutionally-mandated limits on copyright protection. It concludes, further, that the law should afford us-ers of digital works rights of electronic self-help where necessary to pre-serve the copyright balance.
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In this paper, we consider whether rights management systems can be supported by legal and institutional infrastructures that enable appropriate public access to the works secured by these technologies. We focus primarily on the design challenges posed by the fair use doctrine, which historically has played a central role in preserving such access. Throughout the paper, however, we also use the term "fair use" to refer more generally to the variety of limiting doctrines within copyright law that serve this goal. We begin in Part II by reviewing the contours of the fair use doctrine and the legal and policy requirements that mandate appropriate public access to copyrighted works and other publicly available informational works. Part Ill discusses the nature and purpose of rights management systems, their legal status under the current anti-circumvention provisions of U.S. law, and their likely effects on fair use. In Part IV, we consider the foreseeable technical and institutional options that might enable proper public access to secured works and offer a proposal combining minimum system flexibility requirements in exchange for copyright enforcement and "key escrow" in exchange for anti-circumvention protection. Part V assesses the legal feasibility of such a system and concludes that the proposal comports with the United States' obligations under international copyright agreements. Finally, Part VI considers whether implementation of the proposal would represent good policy and concludes that it may be the best realistic alternative for preserving fair use in the digital age.
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When individuals infringe copyright, they often use tools, services, and venues provided by other parties. An enduring legal question asks to what extent those other parties should be held liable for the resulting infringement. For example, should a firm that produces photocopiers be required to compensate authors for any unauthorized copies made on that firm's machines? What about firms that manufacture personal computers or offer Internet access; should they be held liable, at least in part, for online music piracy? In this essay, we examine how modern copyright law addresses these questions and we evaluate the resulting system on economic grounds.
Over the past two decades, as the presence of digital technology has become more and more ubiquitous, its tremendous capabilities of reproduction and distribution have created difficult issues for copyright law. Recently, Congress has addressed some of these issues by taking the nontraditional approach of directly regulating the manufacture, development, and distribution of technology. In 1992, Congress enacted the Audio Home Recording Act, requiring that all digital audio recording devices possess a serial copy management system to limit the copying of digital music recordings. Six years later, Congress passed the Digital Millennium Copyright Act, making it a crime to manufacture or distribute technologies for the purpose of circumventing technological measures taken by copyright owners to protect their copyrights. This Comment examines copyright regulation of technology by analyzing the relative merits of these two statutes vis-à-vis the broader goals of copyright law. It concludes that copyright statutes can best regulate technology if they designate a specific copyright protection system, require technology manufacturers to incorporate the protection system into their products, and identify a rulemaking body to maintain the statutes' effectiveness.
This book is the first comprehensive exploration of the legal framework of EU digital copyright law from the perspective of the 'end-user'. This multi-faceted actor of the digital environment is a consumer of copyrighted works, a file-sharer of these works on the Internet, and a possible follow-on creator, who builds upon pre-existing digitised materials. All of these activities raise significant issues for national, European and international legal systems. The author critically evaluates the economic and legal consequences of the spectacular rise of user-generated content for existing copyright rules, with reference to human rights law, competition law and other important policies contained in the EC Treaty. He details policy options which would establish a balance between digital copyright law and the preservation of constitutionally-mandated end-user activities like personal use, private copying, educational and research activities and the unprecedented transformative uses enabled by digital technologies. This book is essential reading for lawyers, policymakers and academics interested in copyright law, competition law concerning digital media and information technology, consumer digital rights, Internet governance, freedom of expression and user data protection in digital settings. © 2008 Springer-Verlag Berlin Heidelberg. All rights are reserved.
Reverse engineering to extract knowledge about products has a long history as a lawful practice. A legal rule permitting reverse engineering is economically sound as long as this activity takes enough time or is costly enough that innovators can recoup their research and development costs. In recent years, several restrictions on reverse engineering have been proposed or adopted. This Article assesses the economic impact of those restrictions in four industrial contexts: traditional manufacturing industries, the semiconductor chip industry, the computer software industry, and the digital entertainment product industry. We view reverse engineering as one of the important policy levers of intellectual property law, along with rules governing term and scope of protection, and summarize our conclusions in this light. The most obvious settings for the reverse engineering lever are "on" and "off." This study, however, reveals five additional strategies for regulating reverse engineering: (1) regulating a particular means of reverse engineering; (2) adopting a "breadth" requirement for subsequent products; (3) permitting reverse engineering for some purposes but not others; (4) regulating tools for reverse engineering; and (5) restricting dissemination of the resulting information. We conclude that some restrictions on the act of reverse engineering, or on what a reverse engineer can do with the resulting information, may be necessary to ensure adequate incentives to invest in innovation. But in some cases, the restrictions have gone too far. The Article also considers policy responses when innovators seek to prevent the exercise of reverse engineering rights by contract or by technical obfuscation.
The Digital Millennium Copyright Act unconstitutionally limits the rights of users to make fair use of materials protected by technical protection systems (TPSs). By criminalizing the distribution of devices designed to circumvent digital fences, the DMCA prevents users who lack the technical facility to circumvent TPSs from accessing material protected by TPSs. As a result, it is impossible for users without the technical skill to circumvent TPSs to exercise their First Amendment right to make fair use of the material protected by TPSs. Courts, by giving a broad reading to the protections of the DMCA, have failed to militate against this restriction on fair use. Further, the fail-safe rulemaking provision provided for in the DMCA has failed to provide adequate protection for most fair use. Since the legislature has already spoken, it is up to the courts to interpret the DMCA in a manner that prevents content owners from using TPSs to erect digital fences throughout the public domain.
The Digital Millennium Copyright Act (DMCA) is a set of laws, which was en-acted in 1998. It implements two WIPO treaties signed in 1996. Its important fea-tures are the the prohibition of circumvention of measures used to protect copyrighted works and the limited liability of online service providers for the content stored and transferred by their users. In this paper we represent the contents of the DMCA and some of its implications.
Respondents argue that an abstract theoretician's view of the copyright monopoly allows them to control the way William Griffiths watches television. In the name of that abstract vision, they ask the federal courts to establish a bureaucracy more complex than anything Congress has established in the field of copyright to date, in order that they may levy an excise tax on a burgeoning new industry.  First draft of Justice John Paul Stevens's dissenting opinion in Sony v. Universal Studios 1 Sony v. Universal Studios may be the most famous of all copyright cases. People who know nothing about copyright know that the Sony-Betamax case held that home videotaping of television programs is fair use. Paradoxically, although the Supreme Court granted certiorari in the case to decide whether the copyright law permitted consumers to engage in private home copying of television programs, the majority ended up crafting its analysis to avoid answering that question definitively. Instead, it ruled that even if consumers sometimes violated the copyright law when they taped television programs off the air, that violation did not make the manufacturer and seller of the copying equipment they used liable for copyright infringement. That was so, the Court ruled, because some of the time, home videotaping was authorized by the programs' copyright owners, and some of the time, home videotaping qualified as fair use. Since videotape recorders could be used for legitimate as well as infringing copying, making and selling the devices did not subject the Sony Corporation to liability. When the Justices initially met to discuss the case, only one of them was persuaded that consumer home videotaping was permissible under the Copyright Act. Justice Stevens argued that Congress had never intended to regulate a consumer's making a single, noncommercial copy. What became the majority opinion in Sony evolved as an effort by Justice Stevens to recruit four additional votes to a decision in Sony's favor.
In this contribution, it is investigated what the apparent economic policy goals are of the EU Copyright Directive of 2001. Additionally, it is explored what, according to mainstream economic theory, will be the likely result of the new regulations on copyright law. The article concludes that the Directive appears to be based on a great belief in the beneficial effects of granting to information producers broad property rights in information products and in the ability of the market mechanism to achieve an optimal result in the information market. However, it may well be argued that the apparent faith in the 'invisible hand' of the market is unjustified where information products are concerned. There may be valid arguments for the legislator to intervene by limiting the freedom of contract and by curtailing the freedom to block any information usage technologically.
Copyright law's first-sale doctrine allows the owner of any particular lawful copy of a copyrighted work to resell, rent, lend, or give away that copy without the copyright owner's permission. The article first considers the effects the first-sale doctrine has had as part of a copyright system in which many types of works are disseminated by the distribution to the public of tangible copies that can be retransferred by the copy owner to others who can just as easily use the copy to access the work. These effects have largely been to increase the affordability of copies of works (primarily by providing secondary sale, rental, and lending markets that can offer access at a lower price than that charged by the copyright owner for the purchase of a new copy) and the availability of works (by making it possible to obtain access to a work when it goes out of print or when a copyright owner withdraws or suppresses it and by increasing the likelihood that a copy or copies of the work will be preserved over time). Next, the article considers how a shift to digital dissemination - both via transmissions over digital networks and in the form of technologically protected digital copies - may well result in the existence of fewer freely transferable copies of copyrighted works that can be distributed without the copyright owner's consent under the first-sale doctrine. The article then considers how this shift might affect the affordability and availability of copyrighted works. As to affordability, the article concludes that the shift's effect may be positive in some respects but may pose particular problems for library lending, perhaps the most affordable form of access. As to availability, the article concludes that the shift to digital dissemination may give copyright owners more complete control over access to copyrighted works and in particular may eliminate the preservation benefits of widespread distribution of copies that are legally and practically transferable under the first-sale doctrine. The article ends by suggesting some steps that might be taken, particularly with respect to fostering availability of copyrighted works, should the predicted effects of a shift to digital dissemination begin to materialize.
The EU Copyright Directive (EUCD) entered into force on June 22, 2001. The directive is aimed at harmonizing the divergent European copyright regimes and at transposing the WIPO treaties. EU member states were granted 18 months to transpose the provisions of the EUCD into their national laws. However, several member states have not yet implemented the EUCD over one and a half years after the process should have been completed. This paper asks whether and why Genie is stuck in the bottle. It starts with an overview of the current state of implementation of the European Copyright Directive (EUCD) and then focuses on the ways in which EU member states have transposed the EUCD's provisions on the protection of technological measures into national law. First, the analysis reveals that uncertainty over provisions aimed at protecting technological measures as well as the definition of crucial terms (such as 'effective measures') persists - even at a basic level. The question, for instance, as to what extent access control mechanisms fall under the definition of technological protection measures has been contested in some member states. Second, the study explores different ways in which national implementations have addressed the problem of privately applied technological protection measures vis-a-vis the traditional exceptions to copyright. The authors argue that incumbent member states have not made broad use of private copying exceptions and have diverged as far as the implementation of the public policy exceptions are concerned. Third, a brief analysis of some approaches to sanctions and remedies taken by EU member states suggests that member states have interpreted the relevant provisions of the EUCD in different ways. Differences remain with regard to criminal sanctions in particular. The study concludes that the EU member states are leaving both the fine-tuning of new legislation and resolution of rather fundamental issues related to the EUCD to the national courts and, ultimately, to the European Court of Justice. The paper suggests that the EUCD has led to a certain level of harmonization of member states' laws, but also identifies and maps significant differences among member states in the field of anti-circumvention laws.
Even as a mere conceptual cloud, the term “user-generated content” is useful to discuss the societal shifts in content creation brought about by the participative Web and perhaps best epitomized by the remix phenomenon. This Essay considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation - the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work was used. One might also rely on another type of fair use defense - for example, that the second work was used in news reporting, or, although the case law on this point is still controversial, that the reproduction was fair use because it made the work more accessible. While it is clear that creating original content by reusing preexisting content is nothing new, the focus here is on amateur creation and reuse and the Essay discusses whether the amateur nature of the content constitutes a new normative vector. The Essay suggests that the first step to find adequate answers is a proper taxonomy of UGC.
In deliberating passage of the Digital Millennium Copyright Act, everyone on both floors of Congress decried something that they labeled "the specter of a 'pay per use' world." In other words, both Congressmen and Senators paid lip service to the need for a robust sector of fair use and free commentary, a realm over which copyright owners would be able to exert no control. This article tests Congress' stated goals against its handiwork. The article concludes that, pious rhetoric aside, there are profound concerns that Congress failed in its goal to create legal safeguards against a "pay per use" world.
In continental Europe, copyright law is traditionally viewed as a so-called 'natural' right - briefly put: it is simply right for the author to enjoy the fruits of his labor. However, socio-economic considerations are becoming more in important in European copyright doctrine. One reason for this tendency is that more and more copyright matters are regulated at the EU level and that the European regulator explicitly adheres to the economic rationale for copyright law. In this contribution, it is investigated what the apparent economic policy goals are of the EU Copyright Directive of 2001 - which is by far the most ambitious piece of EU legislation in the area of copyright to date. The purpose of this article is not to set-out new, cutting-edge economic theories on copyright law, but merely to analyze what the explicit and implicit aim of the Directive is and to explore what, according to standard, mainstream and widely known economic theory, will be the likely result of the new regulations on copyright law. Will the Copyright Directive succeed in achieving its apparent goals? What does economic theory predict about its impact? The emphasis is on the most important and controversial changes that the Copyright Directive brings about. These are the introduction of a right of temporary reproduction, the limiting of the exhaustion of copyright, the abolishing of remuneration rights and, last but certainly not least, the broad protection of technological measures - i.e. DRM systems. The article concludes that the Directive appears to be based on a great belief in the beneficial effects of granting property rights in information products and in the ability of the market mechanism to achieve an optimal result. However, it may well be argued that apparent faith in the 'invisible hand' of the market is unjustified. Particularly, the public good character of information products is not taken into account. Moreover, the provisions of the Directive may hinder competition to a further extent than copyright traditionally did, which could have an undesirable result as well. Additionally, the apparent reliance on market forces to match the demand for uses with the offered technological usage restrictions may be unsubstantiated. There may be valid arguments for limiting the freedom of contract and the freedom to block any information usage technologically.
The relationship between copyright, contract and the legal protection extended to technological measures is important and one due to increase in prominence as copyright owners increasingly rely on contracts and technology in the delivery of copyrighted material. The interrelationship between copyright on the one hand and contract and legal protection extended to technological measures used by rights-holders, on the other, is referred to in this article as the "copyright exceptions interface". This term is used to refer to how legislators envisage that users of copyright material can benefit from copyright exceptions despite attempts to restrain or prevent certain uses either through contract or technology. The copyright interface is thus of key relevance to both users and rights-holders. For users, the interface indicates what contractual restrictions they can consider to be null and void and in what instances they can circumvent rights-holders' technological measures. For rights-holders, the interface indicates what type of obligations they may be under in enabling users to benefit from exceptions under copyright law. In light of recent U.S. and EU legislative treatment of the copyright exceptions interface, this article urges re-consideration of the type of exception where such an interface is appropriate. As copyright law remains the body of law best suited to regulating productive use of materials, it argues that there is a strong case to be made why any copyright exceptions interface must include exceptions enabling productive use. This article bolsters the case for including exceptions enabling productive use in any copyright exceptions interface. It offers economic analysis to show how such exceptions promote innovation-driven competition and result in important economic benefits not only for the user public but also for new creators seeking to make productive use of existing copyright material. It identifies the EC Software Directive as a model precedent which establishes a complete exceptions interface addressing both contract and technological measures. It is suggested that this Directive, with minor adjustment, could provide the basis of a broader interface applicable to all types of copyright works for those exceptions enabling productive use.
This paper analyzes "reverse private attorney general" litigation by intellectual property owners against individuals, using the RIAA file sharing litigation as a model. In this article, I coin the phrase "reverse private attorney general litigation" to refer to aggregated claims by well-resourced plaintiffs against multiple individual defendants. There are numerous cultural, technological, and legal factors that suggest that reverse private attorney general litigation will become and increasingly important tool for enforcing intellectual property rights. In fact, in the recent Grokster decision, Justice Bryer noted that RIAA's litigation against end-users serves as a "teaching tool" concerning intellectual property rights. My reading of the Supreme Court's Grokster decision suggests that this statement is more prescient than Justice Breyer likely realized: Grokster's intent-based standard will not inhibit P2P technology over the long term, and RIAA and other content providers will continue to sue end users directly. My review of the RIAA litigation includes an empirical analysis of the litigation's effect on file sharing norms, including a regression analysis of P2P connectivity data. This analysis strongly suggests that the RIAA litigation has failed to change file sharing norms. Instead, file sharers have been steadily migrating to less centralized networks, resulting in a significant overall increase in file sharing activity. I argue that these data reflect how the norms of file sharing exist in symbiosis with the norms of open source file coding. This relationship results in a technology that evolves resistance to litigation threats. After describing the RIAA litigation, I discuss whether any of the traditional justifications for private attorney general actions support reverse private attorney general litigation in the intellectual property context. These justifications include the advocacy of important social causes, balancing the interests of minority groups against well-funded majorities, aggregating small claims that would not otherwise have been filed, and providing a fail-safe against regulatory capture. I conclude that none of these justifications support the RIAA litigation or other forms of reverse private attorney general intellectual property litigation. I then discuss several alternatives to such litigation, and conclude that a mixed market, levy, and private utility model would better reflect public norms about intellectual property.
Examines the range of remedies provided by EC law for infringement of intellectual property rights. Reviews the categories of persons entitled to seek such remedies under Directive 2004/48, the evidential requirements, the provisional and precautionary measures available, the possible remedies following a decision on the merits and the factors to consider when setting the amount of damages. Details key features of the two phases of intervention by customs authorities under Regulation 1383/2003 and notes the proposed introduction of criminal sanctions for commercial infringements
During the past fifteen years, changes in technology have generated an extraordinary array of new ways in which music and movies can be produced and distributed. Both the creators and the consumers of entertainment products stand to benefit enormously from the new systems. Sadly, we have failed thus far to avail ourselves of these opportunities. Instead, much energy has been devoted to interpreting or changing legal rules in hopes of defending older business models against the threats posed by the new technologies. These efforts to plug the multiplying holes in the legal dikes are failing and the entertainment industry has fallen into crisis. This provocative book chronicles how we got into this mess and presents three alternative proposals—each involving a combination of legal reforms and new business models—for how we could get out of it.
Divulgação dos SUMÁRIOS das obras recentemente incorporadas ao acervo da Biblioteca Ministro Oscar Saraiva do STJ. Em respeito à lei de Direitos Autorais, não disponibilizamos a obra na íntegra. STJ00068438
Tatuaggi Elettronici e Responsabilità On-line: Il Diritto d’Autore Risponde alle Sfide di Internet, cit
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The Digital Millennium Copyright Act of
  • U S Per Questa Schematizzazione Si Veda
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Digital Media Consumers Rights Act of
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How Copyright, Cantract and Technology Shape the Business of Digital Media, cit. p. 59; Pamela Samuelson, Randall Davies, Il Dilemma Digitale
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Hanging in the Balance: Fair Use for the Digital Works, cit
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Dusollier, Tipping the Scale in Favor of the Right Holders, cit
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Protecting Technology over Copyright Vedi anche Severine Dusollier, Exceptions and Technological Measures in the European Copyright Directive of 2001 — An Empty Promise, 34 Int’l Rev
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Diversi commentatori hanno notato come l’adozione di entrambi provvedimenti sia stata il frutto dell’ attività di lobbying dei grandi fornitori di contenuti The Future of Intellectual Property in the Information Age
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of Am. v. Universal City Studios, Inc., 464 U
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The Scope of the Proposed IP Enforcement Directive: Torn between the Desire to Harmonise Remedies and the Need to Combat Piracy
  • Così Charles-Henry Massa
  • Alain Strowel
Napster: A Window Onto the Future of Copyright Law in the Internet Age
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Why the Copyright Directive is Unimportant, and Possibly Inva lid, 22 Eur The Copyright in the Information Society Directive: An Overview, 24 Eur
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Copyright Zealotry in a Digital World: Can Freedom of Speech Survive?, in Copy Fights, cit
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The DMCA: Providing Locks for Digital Doors, in Copy Fights, cit., p. 171. La teoria proposta da Simon potrebbe essere facilmente esteso alla direttiva CE in questione
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  • Simon
“a defendant incurs liability for vicarious copyright infringement if he has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities
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The Darknet and the Future of Content Protection, cit. Vedi anche Lemley e Reese, Reducing Digital Copyright Infringement without Restricting Innovation, cit. 56 Stant
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The EU’s IPR Enforcement Directive: origin, key provisions and future of the EU’s IPR Enforcement Directive, cit
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The EU’s IPR Enforcement Directive: origin, key provisions and future of the EU’s IPR Enforcement Directive, cit., p. 821. The final version of the Directive, in fact, includes only civil measures and remedies while the proposal to harmonize criminal proceedings and penalties was rejected
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Copyright and Digital Distance Education: The Use of Pre-Existing works in Distance Education Through the Internet, 26 Colum The First Sale Doctrine in the Era of Digital Networks
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Digital Distribution of Entertainment Content… The Battle Lines are Drawn
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Sul rapporto intercorrente tra misure tecnologiche di protezione e i peer-to-peer networks
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