Super-Grokster: Untangling Secondary Liability, Comic Book Heroes and the DMCA, and a Filtering Solution for Infringing Digital Creations
Britton Payne · FLASH - Fordham Law Archive of Scholarship & History (Fordham University) · 2006
It is important that the courts find a balance between the fostering of new technologies and the protection of intellectual property.12 Our legal system must address digital encroachments that threaten to overwhelm the ability of intellectual property companies to protect their billion-dollar investments.It must also prevent important new technological developments from being trampled in a rush to protect copyright owners.Without firm and clear guidance from the courts in cases like Marvel v. NCsoft, we will see an irreversible erosion of not only the business models of America's character companies, but our country's ability to protect our most valuable export: culture.This Note proposes the implementation of a clear and effective solution that acknowledges the responsibility of ISPs like NCsoft and Cryptic to prevent or reduce infringing uses of their products.Marvel's claims depend on an understanding of when one superhero infringes another, a matter discussed later in this Note.13 The "capable of substantial noninfringing use[]" standard for triggering safe harbor for non-induced third party infringements articulated in Sony 14 needs to be revisited in light of the digital revolution and the Digital Millennium Copyright Act of 1998 ("DMCA"), 15 and rearticulated or entirely reconstructed to provide more practical guidance for companies at odds with each other over the protection of intellectual property rights.This Note will explore claims of copyright and trademark infringement that arise when an internet company's users pay to create and play with characters that infringe on another characterbased company's intellectual property rights.The issues that were present in Marvel v. NCsoft provide ample opportunity to explore problems that have persisted as digital technology has threatened intellectual property interests-this Note offers a solution.This note proposes that courts should solve problems in online infringement through the congressionally considered mechanisms of the DMCA, and use its injunctive relief liberally to craft 12 See Grokster, 125 S. Ct. at 2775. 13 See infra Part V.14