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VOLUME 4 NUMBER 1 NYU Journal of Intellectual Property JIPEL NYU Journal of Intellectual Property & Entertainment Law NOTES Song On Wire: A Technical Analysis of Redigi and the Pre-Owned Digital Media Marketplace James Huguenin-Love Association for Molecular Pathology v. Myriad Genetics, Inc. and Its Impact on the Patentability of “Designer” Genes Amanda Russo Media Law and Copyright Implications of Automated Journalism Lin Weeks ARTICLES Amicus Brief of the Electronic Frontier Foundation and the ACLU of Virginia in Radiance Foundation, Inc. v. NAACP Eugene Volokh Application of a Mechanism of Proportional Reward Towards Global Innovation Esteban Donoso Remixing Transformative Use: A Three-Part Proposal for Reform Liz Brown The Interview John Koegel & Barton Beebe VOLUME 4 NUMBER 1 NEW YORK UNIVERSITY JOURNAL OF INTELLECTUAL PROPERTY & ENTERTAINMENT LAW VOLUME 4 Winter 2014 NUMBER 1 CONTENTS Preface…………………………………………………………………….…v NOTES Song On Wire: A Technical Analysis of Redigi and the Pre-Owned Digital Media Marketplace James Huguenin-Love……………………….………………..………1 Association for Molecular Pathology v. Myriad Genetics, Inc. and Its Impact on the Patentability of “Designer” Genes Amanda Russo………………….……..……………………………37 Media Law and Copyright Implications of Automated Journalism Lin Weeks …………………………………………………………...67 ARTICLES Amicus Brief of the Electronic Frontier Foundation and the ACLU of Virginia in Radiance Foundation, Inc. v. NAACP Eugene Volokh & Mairead Dolan…………………………………..95 Application of a Mechanism of Proportional Reward Towards Global Innovation Esteban Donoso……………………………………………………105 Remixing Transformative Use: A Three-Part Proposal for Reform Liz Brown.……………………………………….…………………139 The Interview: John Koegel & Barton Beebe……………………….……182 i Statement of Purpose Consistent with its unique development, The New York University Journal of Intellectual Property & Entertainment Law (JIPEL) is a nonpartisan periodical specializing in the analysis of timely and cutting-edge topics in the world of intellectual property and entertainment law. As NYU’s first and only online journal, JIPEL also provides an opportunity for discourse through comments from all of its readers. There are no subscriptions, or subscription fees; in keeping with the open-access and free discourse goals of the students responsible for JIPEL’s existence, the content is available for free to anyone interested in intellectual property and entertainment law. ii Cite as N.Y.U. J. INTELL. PROP. & ENT. L. The New York University Journal of Intellectual Property & Entertainment Law is published two times per year at the New York University School of Law, 139 MacDougal Street, New York, New York, 10012. In keeping with the Journal’s open access and free discourse goals subscriptions are free of charge and can be accessed via www.jipel.law.nyu.edu. Inquiries may be made via telephone (212-998-6101) or electronic mail ([email protected]). The Journal invites authors to submit pieces for publication consideration. Footnotes and citations should follow the rules set forth in the latest edition of The Bluebook A Uniform System of Citation. All pieces submitted become the property of the Journal. We review submissions through ExpressO Bepress (http://law.bepress.com/ expresso/) and through electronic mail ([email protected]). All works copyright © 2014 by the author, except when otherwise expressly indicated. For permission to reprint a piece or any portion thereof, please contact the journal in writing. Except as otherwise provided, the author of each work in this issue has granted permission for copies of that article to be made for classroom use, provided that (1) copies are distributed to students free of cost, (2) the author and the Journal are identified on each copy, and (3) proper notice of copyright is affixed to each copy. A nonpartisan periodical, the Journal is committed to presenting diverse views on intellectual property and entertainment law. Accordingly, the opinions and affiliations of the authors presented herein do not necessarily reflect those of the Journal members. The Journal is also available on WESTLAW, LEXIS-NEXIS and HeinOnline. iii NEW YORK UNIVERSITY JOURNAL OF INTELLECTUAL PROPERTY & ENTERTAINMENT LAW EDITORIAL BOARD 2014- 2015 Editor-in-Chief Spencer C. Joffrion Senior Articles Editor Managing Editors Senior Notes Editor Philip Cernera Colleen Raspberry Lin Weeks Amanda Russo Articles Editors Senior Web Editors Eric Holmes Administrative Editor Chelsea Goulet Marguerite La Fiura Michael Crowley Patrick Holvey Michael Mietlicki Andrew Moore Symposium Editor Online Content Editor Liz Polido Christoffer Stromstedt Cort Welch Cydney Swofford Senior Editors Associate Editors Web Editors Michael Bill Megan Briskman Ty Callahan Adam Dale Melissa Goldstein Nicole Lieberman Zachary Klinger Max Kelly Karl Mullen Scott Lipschitz Elizabeth Klein Latore Price Samantha Schnier Max Schwartz Diwaagar Sitaraman Luke Smith Michael Zoltan Staff Editors Ryan Brown Woo Joong Kim Amy Rosenthal Rachel Browndorf David Krone James Salem Vincent Cesare Rebecca Lasky Christian Scarlett David Cottrell Hyung Joon Lee Catherine Seibel Margaret Diamond Nathan Jinho Lee Amy Yang Song Trevor Dodge Logan Light Jason Sosnik Caroline Epstein Eliza Marshall Daryl Steiger Daniel Funt Anna Mascoli Matthew Sumner Jakarri Hamlin Kelsey Nussenfeld Wen Xue Alexa Ianazzi Sijin Park Sally Ye Shreyas Kale Sherrone Ricks Florina Yezril Faculty Advisors Amy M. Adler Barton Beebe iv PREFACE The relevance of law journals to the legal profession is something that has been openly criticized in the past few years. Indeed, when the real world application of contemporary academic ideas can be described as both outdated and intergalactic it might be time to start rethinking the status quo. In an attempt to address some of the concerns that law review articles have “left terra firma to soar into outer space”1 we began this term looking for new ways to provide our readers with relevant and timely information. Beneath this cover you will find the Fall 2014 issue tackling issues ranging from the boundaries of trademark dilution in the context of free speech to a globally conscious modification of patent regulation. We also take a closer look at the often-disorienting legal doctrine of fair use in the context of the recent Cariou v. Prince case and close this issue with an interview discussing the evolution of fair use with one of its most dynamic architects, John Koegel. While the topics discussed in this issue cover a broad range of information the discussions all have one thing in common- the promotion of change. While this hope for change may at times seem like an “unrealistic dream,” as described by Professor Donoso, it is this hope and desire that lead many of us to the legal profession to begin with- and more personally to the ever changing fields of Intellectual property and entertainment law. This Journal aims to provide an open discourse of ideas, be them grounded or abstract, which have the potential to shape the legal future. We present seemingly abstract ideas with the understanding that they could give rise to a profound outcome. It is with this hope that we provide a home for these ideas to take root and strive to serve as a source for robust change. If this is not the role of an academic journal, then what is? We sincerely hope you find this issue both enjoyable and enlightening. Sincerely, Spencer C. Joffrion Editor-in-Chief 1 David Segal, What They Don’t Teach Law Students: Lawyering, N. Y. Times, Nov. 19, 2011 (discussing Supreme Court Justice Stephen G. Breyer’s criticism of the pertinence of law review articles). v NEW YORK UNIVERSITY JOURNAL OF INTELLECTUAL PROPERTY AND ENTERTAINMENT LAW VOLUME 4 WINTER 2014 NUMBER 1 SONG ON WIRE: A TECHNICAL ANALYSIS OF REDIGI AND THE PRE-OWNED DIGITAL MEDIA MARKETPLACE JAMES HUGUENIN-LOVE* In October 2011, an online marketplace for reselling pre-owned digital music emerged. The founders of this online marketplace aptly named it ReDigi. In January 2012, ReDigi was promptly sued by Capitol Records for copyright infringement. Despite reassurances from ReDigi that its software required users to delete copies of the music before being allowed to sell it to another user, the court did not consider that safeguard relevant. The court found that the copyright holder’s reproduction right was being infringed regardless. This paper examines the intersection of the law and science in copyright law. Specifically, it presents a technical way of looking at the reproduction right by explaining how digital files are stored in data storage devices and transferred over the Internet by electromagnetic signals. Ultimately, this elucidation undermines the reasoning used by the court to reach its conclusion. While ReDigi modified its software implementation to skirt any further reproduction right problems, this paper suggests ReDigi should not have had to be so obedient. *James received his J.D. from New York University School of Law in 2014. He received a Ph.D. in Electrical Engineering from the University of Nebraska in 2010. He also received a B.S. in Electrical Engineering and a B.S. in Computer Engineering from the University of Nebraska in 2005. He would like to thank Professor Barton Beebe and the JIPEL members who helped edit and publish this article. 1 INTRODUCTION ................................................................................................. 2 I. REDIGI CASE .................................................................................................... 3 A. Facts ..........................................................................................................
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