Old and new media have struggled for more than a decade in the courts and in Congress for clarity as to how copyright and trademark law applies to new technology. Both sides have argued for bright lines to define what is (from the new media perspective) and is not (per old media) permitted. As illustrated by two recent cases, appellate courts have tended to erase such lines drawn by the district courts and to decline to define new ones. They have thereby ensured that the battle between old and new media will continue unabated.
The two recent appellate decisions are the U.S. Court of Appeals for the Second Circuit’s Viacom v. YouTube, 676 F.3d 19 (2d Cir. 2012), decision interpreting the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA), a congressional attempt to adapt copyright law to the Internet; and the U.S. Court of Appeals for the Fourth Circuit’s Rosetta Stone v. Google, 676 F.3d 144 (4th Cir. 2012) opinion, which is the latest (inconclusive) word in the long-standing controversy over the sale of trademarks as keywords for search engines.
