An Expanded Scope for the Copyright Misuse Defense?

We are often reminded that the basis for U.S. copyright law is the short provision of the Constitution giving Congress the “Power…To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [Art. 1, Section 8] 

This constitutional source says that the “monopoly” granted must be temporary, and that the restraints (under copyright and patent law) should serve a particular purpose, the promotion of knowledge and art. Still, over the years, the duration of those “temporary restraints” (exclusive rights) has been increasing. 

It is also not apparent that the constitutional purpose is a consistently observed guiding principle. Some argue there is too fierce a trend currently toward expanding copyright and its enforcement. At the same time, increased copyright vigilance has been regarded by others as a necessity given the ready distribution and easy duplication afforded by digital technology.

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[1] Other invocations of the copyright misuse defense served a similar purpose. In Alcatel U.S.A., Inc. v. DGI Technologies, Inc., 166 F.3d 772 (1999), the Fifth Circuit allowed a copyright misuse defense when the holder of a copyright in software licensed its use only on the condition that the licensee use the software only on the copyright holder's hardware. In DSC Communications Corp. v. DGI Technologies, 81 F.3d 597 (1996), another Fifth Circuit case, a license prohibiting the development of a competing microprocessor card was found to be copyright misuse.

Expanding the Internet: What do ICANN’s New gTLD Applications Mean for Trademark Owners?

One year ago, as part of a plan to expand the capacity of the Internet’s domain name system, the Internet Corporation for Assigned Names and Numbers (ICANN) began accepting applications for more generic top-level domain names (gTLDs). Currently, the well-known gTLDs include .com, .org, and .net, as well as some of the country indicators that have been repurposed, such as .tv and .es. Adding gTLDs will allow for exponentially more domain names. During the new gTLD application period, ICANN opened the door to any combination of three or more letters in most major alphabets: .blue, .school, .mcdonalds, .law or .商城. The possibilities might seem almost endless, but, on “Reveal Day,” ICANN disclosed a list of 1,930 applications for new gTLDs.  

What does this mean for trademark owners and businesses? Some procedures have been set up; some are still vague and in development. At this stage trademark owners can review the list of proposed gTLDs to determine whether their brands, products or industry names are impacted, and then decide the next step to take with ICANN or otherwise. 

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