The USPTO recently announced a new awards competition called Patents for Humanity. The competition is a pilot program meant to encourage the development of technology to meet humanitarian rather than strictly business means. The prize? Accelerated processing of the winners’ patent applications, though the real value is that the winner may use the prize certificate toward any one patent application in his portfolio, not just the prize-winning technology.

This new program is just one of a series of  initiatives enacted in response to President Obama’s push to accelerate global development through use of technology. In theory, such initiatives will not only aid developing countries but lead to a stronger and more stable global economy, which will help the United States. The USPTO will assign prizes to up to  fifty winners in four different categories: medical technology, food and nutrition, clean technology, and information technology, and has expressed a desire to find solutions to problems such as drought and famine through new technologies. The contest entries will be judged regardless of the field of technology, the location of the targeted population, and the cost of implementing such technology.

This new program is especially intriguing because the White House has rarely used the USPTO to implement policy goals in the past. As a result, investors generally focus on developments in areas with great potential market value rather than those with great humanitarian efforts. While the value of awards certificate is small monetarily, it helps resolve a common complaint among inventors regarding the length of time it takes to process a patent application. With the certificate, winners can ensure a final decision on their applications within a twelve-month period as opposed to the typical two-year process. Since a patentee cannot enforce his patent rights against others until the application is granted, and patent applications are published eighteen months after filing, the accelerated application process could prove a powerful incentive to companies looking to stop infringement of their most potentially valuable products.

Everyone already knows that Tom Brady wields tremendous power in the sports world. Add to that a Brazilian super model wife and the guy has some serious social capital as well. But who knew the former Michigan quarterback’s casual comment to a group of reporters could trigger a federal investigation that resulted in the shutdown of sixteen illegal sports streaming websites and the indictment of nine of the sites’ operator? This is exactly what happened last Thursday when Tom Brady expressed his awe that he had in one year gone from “watching the game on an illegal Super Bowl website” as he rehabbed his foot in Costa Rica to playing in the big game. Within hours prosecutors had launched an investigation of similar websites. With that kind of political capital and a face that I’m pretty sure could single handedly accomplish world peace: Tom Brady for president?

The crackdown is perhaps not surprising considering that the commercials set to air during the Super Bowl generated $250 million in revenue for NBC. That all falls apart if fans are tuning into illegal live streams rather than the NBC broadcast. Yonjo Quiroa, the 28-year-old man arrested in Michigan on charges of copyright infringement for operating nine live streaming sports websites, earned more than $13,000 from merchants purchasing advertising space on his sites. While that revenue was made on other sporting events besides the Super Bowl, as one ad executive explained, the Super Bowl is “essentially our prom night.” The stakes are higher and those with deep pockets care more.

U.S. Attorney Preet Bharara said in a statement on Thursday that although using such illegal websites may be tempting to sports fans, “These websites and their operators deprive sports leagues and networks of legitimate revenue, forcing spectators and viewers to bear the cost of this piracy.” Thanks, Tom Brady for passing on the cost of your Costa-Rica-viewing of Super Bowl XLV to the people.

Although for most viewers the Super Bowl is arguably the one broadcast event of the year where they don’t mind seeing the ads, the debate surrounding web streaming of events or shows that others have paid to air or have invested money in developing is a hot-button issue as of late (see previous MTTLR blog post, for example, here). It hardly needs to be mentioned that there is a bit of a fight in Congress over how things should and shouldn’t be shared over the Internet. It bears remembering that as that battle is waged with the pen in the legislature, enforcement is carried out in a manner federal prosecutors feel fit on the ground. The consequences of that policy are very real to Mr. Quiroa who faces up to 5 years in federal prison for the operation of the sports streaming websites. As the debate continues in Congress and as we sit back and watch the game and commercials that we will all be talking about for the next week and beyond, it is worth thinking about what we want the Internet to look like and whose interests we think are most important to protect.

The America Invents Act (AIA) was passed in September 2011, bringing with it many changes to patent law.  The most noteworthy change was the shift from inventorship being granted on a first to invent system to a first to file system. However, there were many additional changes to the system including, perhaps, some which were inadvertent.

For example, there has been a change with respect to double patenting. Prior to the passing of the AIA bill, your own patents could be used as prior art against your new application to support a double patenting rejection under 35 U.S.C. 103.  This situation could be avoided by filing a terminal disclaimer.

After the passing of the AIA, however, the new law states “a disclosure shall not be prior art to a claimed invention under subsection (a)(2) if — (c) the subject matter disclosed and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person.” 35 U.S.C. 102(b)(2)(C).

Now, under the new 102(b)(2)(C), which becomes effective March 16, 2003, your own prior disclosures cannot be used as prior art against you under 102(a)(2) to support a rejection.

As a result, certain inventions could be re-patented to extend the life of the patent, provided that other 102(a)(1) prior art is not cited.

So is it worth trying to take advantage of this loophole?  Probably not.

First, the benefit received from taking advantage of this new law is minimal: patent-filers at most gain a one year extension on their patent due to the fact that your own admissions become prior art against you after a year under 102(b)(1). Though, a year-long extension may be lucrative in industries where patent rights are very important, such as the pharmaceutical industry.

Second, if the prosecution history of your patent was ever being scrutinized during litigation, the Federal Circuit would most likely not allow this type of patent term extension.  To reach this analysis, the Federal Circuit could determine that references which do not qualify as prior art under 102(b)(2)(C) could nevertheless be combined to support an obviousness rejection pursuant to 103.  But this could be troubling, because under current law and prior case law, references used in a 103 rejection must qualify for prior art under 102.

More likely the court would rely on precedent and the judicial doctrine of double patenting to reject such a term extension, explaining that Congress would not implicitly overturn prior case law.

However, the main deterrent to exploiting this loophole may be the fact that you run the risk that not only will your extension be redacted- but worse yet, you might run into counterclaims of patent fraud, patent misuse or inequitable conduct invalidating your patent and exposing you to damages.

The people have spoken—and the people want their digital freedom! As the 112^th Congress found out just last week, the prospect of the federal government infringing on the open and free Internet has been both politically tumultuous as well as philosophically unpopular in the eyes of the American Public.

Currently, the Digital Millennium Copyright Act governs copyright infringement activities which take place on the Internet. Yet, there was a growing sense among some in the entertainment industry–and in Congress–that this Act was not doing enough to protect IP rights. So, lawmakers responding to pressures from the entertainment industry devised a new bill to combat online piracy, developed two broadly worded anti-piracy bills–the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA). The move pitted Hollywood and its woes over unauthorized downloading, against Silicon Valley techies who claim that “the legislation would hand the government Orwellian powers over the Internet.” However, just recently certain lawmakers–including the bill’s co-sponsor Republican Sen. Marco Rubio of Florida–withdrew their support. Even the White House came out publicly against SOPA.

A key impetus to the sudden turn in popularity for the bills came from a staged anti-SOPA protest on January 18th from Internet sites such as Google, Wikipedia, and Craigslist.com. Wikipedia, for example, “went dark” and shut down completely. The site’s co-founder, Jimmy Wales explained his concern in a recent CNN interview over the broad language in the bill, citing apprehension over the unprecedented amount of power the bill would give the government to take over the Internet and its content–Wikipedia and similar sites would struggle to function under the effects of SOPA due to the sheer number of links they would be required to check when posting content. Wales also affirmed his belief that “when it comes to First Amendment concerns, censoring the Internet is never going to be the right answer.”

For now, Congress has put further debate on these bills on-hold, although it is clear that the fight is far from over. On January 21st the FBI shut down the file-sharing website Megaupload as part of what seems to be the federal government’s theme for 2012: taking a hard anti-piracy stance. The debate also touches upon the existential question of whether Internet access is a basic human right or whether it is simply a vital tool which our society has obligations to guard against potential abuse in the face of an increasingly interconnected world.

For now, we can just remain thankful that the government has backed down and we are still able to catch up on missed episodes of Glee on various Megaupload-like sites–even if they have Japanese subtitles.

On February 10, 2012, the U.S. Copyright Office will stop accepting public comment on proposed administrative exemptions to the Digital Millennium Copyright Act’s “access control” provisions. Fresh from their SOPA and PIPA victories, organizations such as the Electronic Frontier Foundation are pushing activists to flood the U.S. Copyright Office with comments supporting the renewal and expansion of current exemptions. Regardless of the outcome of this campaign, it is clear that the exemptions currently in place will change.

First, some background. According to Section 1201(a)(1)(A) of the Digital Millennium Copyright Act, individuals may not “circumvent a technological measure that effectively controls access to a work protected under [the Copyright Act].” This was one of the key provisions of the DMCA (along with the Safe Harbor provisions of 17 U.S.C. § 512) and essentially makes it a crime to hack software or hardware designed to protect copyrighted material. Concerned that the law would weaken the fair use doctrine by criminalizing circumvention even when the individual plans to engage in non-infringing uses, Congress required the Librarian of Congress to issue specific exemptions for certain classes of works every three years. Such exemption rules were issued in 2000, 2003, 2006, and 2010. Although the rules scheduled to be issued in 2009 were delayed for a year, the Copyright Office plans to get back on schedule by issuing new rules early — in October of this year.

Of the six classes of works exempted in 2010, only four have been proposed for renewal this year. This virtually ensures that two prior exempted classes will expire. The first expiring class consists of “[c]omputer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.” This exemption has been in place since the first set of rules in 2000, which makes its absence from the current proposed list rather surprising. The reason for its absence is unclear, but it may simply be the case that there are so few individuals and companies using outdated dongle-reliant software that the exemption is no longer needed.

The other expiring class of works concerns “[v]ideo games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities.” According to Nimmer on Copyright § 12A.03, this exemption was first implemented in 2010 as a response to vulnerabilities caused by Macrovision’s SafeDisc technology. Since this exemption was probably unnecessary given the DMCA’s safe harbor exemption for encryption research (§ 1201(g)), it is unsurprising that it has not been proposed again.

Of the four classes proposed for renewal, only one will likely remain unchanged. This class covers literary works distributed in ebook format, where access control technology prevents the use of read-aloud functionality or the use of specialized screen readers. This exemption has been proposed by the American Council for the Blind and the American Foundation for the Blind, and will likely be renewed without much controversy.

For the other three classes, EFF and others are proposing that they be renewed, but with changes to reflect advances in technology and consumer use. For example, current rules exempt the use of DeCSS and other software to bypass the Content Scrambling System on DVDs. This exemption only applies when the circumvention is conducted for educational purposes, for documentary filmmaking, and for noncommercial videos. EFF and the University of Michigan Library would like to renew this exemption, but EFF has proposed expanding it by including audiovisual works acquired via online distribution systems (such as Netflix streaming or Amazon Instant Video). This expansion would likely be opposed by the film industry, which resisted the exemption for DVDs.

EFF has proposed expanding the remaining two classes to reflect the rise of tablet computers, but they will undoubtedly face some resistance. The exemptions for unlocking (whereby computer applications circumvent technology limiting a device to one particular wireless telecommunications network) and jailbreaking (which allows an individual to install third-party software on a device) currently apply only to mobile phones. Every proposed renewal of these rules would extend the exemption to other wireless devices such as tablets. It is hard to argue than an iPhone is really all that different from an iPad, so it will be interesting to see whether the Librarian of Congress agrees to widen the class of devices subject to the exemption.

Although there initially appear to be few practical arguments for distinguishing phones from tablets in this context, it would create problems for the Copyright Office if it treated them the same. If computer programs designed to jailbreak the iPad and other tablet computers are allowed, then why not allow–as EFF has proposed–the jailbreaking of video game consoles such as the Xbox 360 and the Playstation 3? They are all essentially limited-purpose computers that allow individuals to play games, watch movies and access the internet–albeit tablets have their screen built-in while gaming consoles attach to a television. Furthermore, if gaming consoles can be jailbroken, then why not DVRs such as the TiVo? There is no doubt that Sony, Microsoft, and cable companies would oppose subjecting their devices to such exemptions, just as Apple Computer opposed the current exemptions. Yet the same fair use rationale that justified the current exemptions relating to mobile phones would seem to apply to other devices. Ultimately the Librarian of Congress–with the input of the public–will have to decide where to draw the line.

Netflix may now be able to use Facebook to further alienate its consumers while pursuing a lucrative revenue stream. The House amended the Video Privacy Protection Act (VPPA) to relax written consent requirements for sharing information on movie rentals. This opens the door to Netflix having a Spotify-like presence on Facebook feeds and finally lets me see how many of my Facebook friends truly appreciate “The Room.”

The House’s vote, which was surprisingly more contentious than anticipated and attracted a bit of money, is an important step in changing our strict consent requirement (written consent required for every disclosure) for the sharing of video rental information. The amendment allows for continuous consent obtained on the Internet, while still asking for it to be “informed, written consent.” It requires such consent to be distinct and separate from other legal or financial obligations. This means consent need only be established once on the Internet, though it can be revoked. The full text is here, and will take longer to load than to read, and does not tell us how consent on the Internet is actually achieved.

The amendment has a startling lack of the words “opt-in” or “opt-out” along with any requirement of notification due to change in company policy. The bill looks like an opt-in regime (it still asks for “informed written consent”) that will require notification of change of significant policy, but it does not address the political divide around these words. Of course, given our propensity for opt-out schemes, I could be reading this completely reasonably but incorrectly. One representative (Hanna, R-NY) explains his reasoning that the amendment “clarifies” current consent law, requiring an “opt-in” but allowing an “opt-out” at any time.

Privacy advocates are skeptical of this change, bringing serious concerns over the loss of meaningful information privacy control. Mark Rotenberg of EPIC (the main opposition to this amendment) claims this destroys the right to meaningful consent. He reads the amendment as diminishing user’s control over their own personal information. The Center for Democracy and Technology was less condemning in its responses, suggesting this to be considerably less important than other privacy issues Congress should be tackling. The CDT also points out that the original VPPA is a high-water mark for privacy legislation, and any degradation of it will be taken as a general attack on privacy. Members of Congress were more concerned about their own personal problems rather than their constituents’ problems.

One concern that lurks in the background is that the amendment allows “consent” to be defined as “check/uncheck this box to continue on to your normal Netflix experience, and by the way we are sharing your information with all your Facebook friends and/or anyone that asks.” The actual concern might not be that ridiculous, but there is definitely a knee-jerk reaction here to the thought that this purportedly “opt-in” amendment will still allow an automatic enrollment in the service until you opt-out. Without thinking about the history of opt-in/opt-out, the statutory language potentially precludes that by requiring consent to be given in a context free of other legal and financial obligations. Still, it’s easy to remember Spotify’s rather unchallenged entrance into Facebook as feeling like this, considering how we were all mystified when people started asking about our seemingly endless love for Kate Bush (YouTube). This is not a minor concern, but it is also not something we give companies complete freedom to do.

The FTC sent clear signals to social media sites and advertisers that dramatic changes to privacy policies concerning personal information will not be acceptable without some sort of new consent. Facebook just got in a whole heap of trouble for this sort of thing, and is subject to privacy audits and requirements of privacy “opt-ins” from users for substantial changes to policy. It also just closed comments on another privacy enforcement action with a behavioral advertising company, ScanScout, that used “flash cookies” in a rather deceptive way. The proposed ScanScout consent order requires strict notification and meaningful opt-out requirements, resembling to some degree the FTC’s proposal for Do Not Track legislation or regulation. Netflix, Hulu, Amazon Instant, iTunes, and other “rental” services should be well aware of the problems they can run into and the broad power of enforcement the FTC is exercising, which will surprise no one if they start investigating abuses in an area of newly reduced privacy.

The FTC involvement in major industry problems is forcing the industry to take more accountability in hopes of avoiding run-ins with the FTC and reducing the need for regulatory action. Much of the principles centers on either notice before a practice starts (looking more like an opt-in) or a pervasive reminder of a service (looking like the elusive “meaningful opt-out”). While the FTC might only be able to go after the big fish, industry standards reflective of the FTC’s position seem to be taking hold.

In the end, I think this bill is “ok” and will not have the negative and destructive effects that Rotenberg implies. An individual’s consent can still be revoked, and it’s difficult to see this practice taking everyone by surprise. If it did, the FTC might have some further words with Mr. Zuckerberg about their prior agreement. While I’d like to see our politicians more directly confront what we expect from our privacy regime, I’m more comfortable letting the FTC experts, industry players, and privacy advocates come to a consensus on what “works” before Congress tells us what aspect of privacy is most important or opens the floodgates of private litigation.

The first, and often only, financial concern of research participants is how much they are getting paid for participation.  In studies that do nothing more than measure reaction time to identify a number in a serial string of letters, there is little reason to be concerned about other financial issues.  However, for more involved research, such as clinical trials of new drugs, the possibility exists that something may go wrong.  If and when it does, how should the research participant be compensated?

The Presidential Commission for the Study of Bioethical Issues recently had a meeting in Boston, at which the commission addressed the need for compensation of human research subjects who are harmed outside the scope of the research study.  As noted by Mr. Kenneth Feinberg, it is not the current policy of federal sponsors of research to compensate for injuries caused by clinical studies.  Conversely, most private sponsors of research cover any medical costs that may fall to the participant, either by covering what private insurance does not, or by paying for all treatment before insurance.  For example, the research policy posted by Pfizer states that it “arranges for medical care for any physical injury or illness that occurs as a direct result of taking part in a Pfizer-sponsored clinical study. Pfizer reimburses this medical care at no expense to the subject.”

As simple as it may seem to say that participants should receive care for injuries that occur because of clinical research, there are always considerations that require more careful thought.  Mr. Feinberg identified seven considerations that the Commission needs to consider in its final report.  Some are easy, such as whether participants should be compensated for their injuries.  Considering that many upfront payments for research are designed to reimburse participants for their costs and not to compensate for the risk they accept, it is only logical that they should be compensated if that risk actually occurs.

More interesting from a technological standpoint, is who (and how) a factual determination should be made that the study was responsible for the injury.  For example, consider a situation where a study is comparing a standard-of-care surgically implanted device and a potentially improved device, and an injury occurs during the implantation procedure.  Obviously, this only occurs when a patient is in need of the procedure in the first place.  The question then becomes, was the adverse event caused by the new procedure, or a mistake during the surgery, or the natural progression of the underlying disease?  Who should make this determination is a similarly difficult proposition.  Under some possible theories of compensation, different causes of injury may warrant different levels of compensation.  With necessarily unknown elements to research, a doctor involved in the study may be the only person with detailed enough knowledge to make the determination.  However, the doctor will likely also have significant conflicts of interest.  Therefore, it is clearly important that there be independent review with an emphasis on the future needs of the participants, and not just whether the study continues to be worth the risk in light of new data.  Universities and other research centers could provide this review through already established ethics panels.  Alternatively, the primary investigators or study sponsors could be responsible for contracting outside personnel to review as events occur over the period of the study.

On October 20th Senator Kay Hagen (D-NC) introduced the Computer Professionals Update Act (CPU Act) for consideration in the Senate. The bill seeks to amend the Fair Labor Standards Act to expand the overtime exception for hourly workers to cover a wide swath of IT workers, including security specialists, software programers, and database administrators. Many of these workers are salaried employees, and thus already exempt from overtime requirements. However, there are still many IT workers that are paid on an hourly basis, as this admittedly unscientific survey shows.

The bill is co-sponsored by three Republican senators and one other Democratic senator, and has been assigned to the Senate Committee on Health, Education, Labor, and Pensions. While the passage of this bill is far from certain–most bills die in committee–the question of why this bill was introduced still looms. I suggest that Sen. Hagen is motivated by something beyond the typical IT worker: the growing video game industry in her home state of North Carolina.

North Carolina has at least fourteen game developers and publishers within its boarders, including the amazingly successful Gears of War developer Epic Games. As evidence of North Carolina’s push for part of the video game pie, the state recently enacted a fifteen percent tax credit for game developers. Should the Federal overtime exemption pass, the State would be able to further aid one of its major growth industries.

The question of overtime hours has been a hot button issue in the game design industry for the last few years, starting when a game developer’s spouse spoke out about the working conditions at Electronic Arts. As recently as July of this year game developers have been complaining of unfair wage practices during grueling production schedules. In an industry where twelve hour workdays are common, having a Federal law that exempts all your key employees from overtime pay may help the bottom line. Many people may dream of working in the video game and technology industry, but should this bill pass some entry level workers may lose out on some important legal protections.

As a final point, it is interesting that none of the co-sponsors are from the technology hot beds of California and Washington. North Carolina’s Technology Triangle may be growing, but without the support of the giants of the technology world it is doubtful that this bill completes its journey into law. This is definitely a bill for any budding tech workers to keep an eye on.

The Stop Online Piracy Act (along with the Senate version known as the Protect IP Act), introduced last month in the House by Representative Lamar Smith, aims to level a significant blow against offshore “rogue sites” that host copyright material. SOPA would allow the U.S. attorney general to obtain a court order against these sites and serve the relevant ISP to take down the site. Furthermore, the Act would allow the DOJ and copyright owners to seek court orders blocking payments to these sites from online ad networks and payment processors.

The bill, however, has been the target of harsh criticism from lawmakers and industry titans alike. The principle arguments against the Act is that it is detrimental to the economy and impinges on free speech. Indeed, the bill’s detractors point out that it “strikes at the very core of the internet” by introducing a walled garden ecosystem of censorship that sacrifices openness and innocent user-generated content for the whims of Hollywood. However, not even all of Hollywood is united in its effort to pass the bill — even international pop sensation Justin Bieber has offered his own two-cents, calling for Senator Amy Kloubchar (a sponsor of the Senate version) to be “locked up [and] put away in cuffs…”  The bill’s aim is to crack down on intellectual property infringement, but it has been lambasted for its overaggressiveness (as a disproportionate response to a relatively narrow issue of online IP infringement) and detrimental impact on user-generated services such as YouTube. Moreover, critics point out that the ingenuity and entrepreneurship epitomized by an open Internet would be compromised as start up costs for websites would rise exponentially to implement the necessary compliance measures demanded by SOPA.

The growing chorus of anger, disappointment , and skepticism directed towards SOPA put its future (at least in its current form) in grave doubt. Indeed, as an issue that has proven so inflammatory that it has united tech giants like Yahoo! and Google, prominent lawmakers, Justin Bieber, and even a group of illustrious law professors, the SOPA might find itself taken offline soon enough.

In August, Stefani Joanne Angelina Germanotta – professionally known as Lady Gaga – looked toward the National Arbitration Forum (NAF) to obtain control of the domain name <ladygaga.org>.  The domain name had been registered in June 2008 by “oranges arecool XD”, owner of over 2,000 domain names including <audrina-patridge.org> and <even blakelively.com>.  While Ms. Germanotta not only has common law rights to the mark, but also owns three federal LADY GAGA trademarks, the Panel concluded that Ms. Germanotta was not entitled to the <ladygaga.org> domain.

You might find this decision shocking, but it is not particularly surprising – at least to those familiar with current cybersquatting policies.  For those unfamiliar with the term, cybersquatting refers to the registration of a domain name, with bad faith, to profit from the goodwill of another’s trademark.  A cybersquatter registers a domain name with the intent of either (1) collecting income by placing advertisements on the website linked to that domain name or (2) selling that domain at an inflated place to the actual owner of the trademark contained within that domain name.  Cybersquatting may take one of a number of different forms.  In typosquatting, for example, cybersquatters rely on typographical errors made by Internet users when inputting a website address into a web browser.  This may include a common misspelling of the intended site (i.e. <exemple.com> instead of <example.com>), a differently phrased domain name (i.e. <examples.com>), or as in the case of Germanotta v. oranges arecool XD, a different top-level domain (i.e. <example.org>).

A victim of cybersquatting has two primary recourses: the victim can sue under the provisions of the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. §1125(d)(1), or turn towards the Uniform Dispute Resolution Policy (UDRP), a policy promulgated by the Internet Corporation for Assigned Names and Numbers (ICANN).  Ms. Germanotta brought her case under the latter of the two – the UDRP – likely because this resolution process is a much faster and less-expensive system of arbitration.  Nevertheless, she proved unsuccessful because she failed to prove the following three elements required under paragraph 4(a) of the Policy: (1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith.  While the Panel concluded that the first element was met, the Panel also found that oranges arecool XD’s use of the disputed domain name in conjunction with a fan website was a legitimate noncommercial or fair use of the policy.  It thus did not even consider whether Respondent registered and used the disputed domain name in bad faith and concluded that relief should be denied.

Because the avoidance of confusion is such a fundamental tenet of trademark law, I fail to understand why a finding of fair use in this instance should trump a finding of likelihood of confusion.  By all means, I am a strong proponent of fair use and thoroughly appreciate its constitutional foundation, and I certainly wouldn’t hesitate to say that oranges arecool XD should be free to own a domain name such as <ladygagafansite.com>.  Nevertheless, I have no doubt that a fan would consider Lady Gaga the owner and licensor of the domain name <ladygaga.org> and thus that the Respondent’s ownership of the domain name would deceive the public and serve as a source of confusion.  Although oranges arecool XD does title the website “Lady Gaga’s (Unofficial) Fansite,” its inclusion of the term “unofficial” is hardly noticeable and fails to clearly disclaim that the website is in no way affiliated with Ms. Germanotta herself.  For these reasons, the Panel’s decision seems particularly unsatisfying.  Had the Panel instead weighed the UDRP’s three elements, I believe a much more appropriate outcome would have been reached.

I find the Panel’s decision all the more troubling in light of ICANN’s forthcoming introduction of new generic top-level domains (gTLDs) (.com, .net, .org etc.).  As more top-level domains open up, Lady Gaga and other trademark holders will have to litigate additional domain names in the Internet sphere that are likewise confusing.  With the endless possibility of new top-level domains, they will certainly have their work cut out for them.  But as the UDRP stands, I see a lot of failure in their futures.  What do you think?  Do you agree with the Panel’s ruling? Do you think that the three elements should be weighed under the UDRP?