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Fair Use In The Us Redux: Reformed Or Still Deformed?, Jane C. Ginsburg
Fair Use In The Us Redux: Reformed Or Still Deformed?, Jane C. Ginsburg
Faculty Scholarship
In 2019, Professor Ginsburg delivered the Distinguished Visitor in Intellectual Property Lecture at the Faculty of Law, National University of Singapore. Titled “Fair Use in the US: Transformed, Reformed, Deformed?”, the lecture explored US caselaw applying the statutory fair use exception, highlighting its excesses and apparent rebalancing. Four and half years (and a pandemic) later, the Supreme Court has rendered decisions in two fair use cases (Google v Oracle; Andy Warhol Foundation v Goldsmith). Together, these controversies prompt inquiry whether the Supreme Court has redrawn the landscape of US fair use and copyright law, expanding fair use …
Deconstructing The Blueprint For Infringement: Remedying Flawed Interpretations Of The § 120(A) Exception To Architecture Copyrights, Margalit Zimand
Deconstructing The Blueprint For Infringement: Remedying Flawed Interpretations Of The § 120(A) Exception To Architecture Copyrights, Margalit Zimand
Kernochan Center for Law, Media, and the Arts
Drafting the Architectural Works Copyright Protection Act of 1990 (“AWCPA”) consisted of a bizarre hodgepodge of considerations. Ostensibly, the goal of the Act was to bring the United States unquestionably into compliance with the Berne Convention for the Protection of Literary and Artistic Works, which the United States had just recently joined, with as minimal an impact on U.S. law as possible. In reality, this goal — itself not without built-in tensions — was but one of several competing forces at play in the drafting process. The other forces generally fell into three camps. There were the proponents of preserving …
Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell
Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell
Faculty Scholarship
We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” …
Additional Comments On Preliminary Draft 9, Jane C. Ginsburg
Additional Comments On Preliminary Draft 9, Jane C. Ginsburg
Faculty Scholarship
I am adding to the comments submitted by Profs. Balganesh, Menell and myself a list of points in PD9 that I believe require correction or clarification. These comments do not include Chapters 8, 10 or 11.
Learned Hand's Copyright Law, Shyamkrishna Balganesh
Learned Hand's Copyright Law, Shyamkrishna Balganesh
Faculty Scholarship
Learned Hand is often described as the greatest copyright judge to have ever sat on the bench. By the 1950s, the most important parts of U.S. copyright law had been his creation, all from his time as a judge on the Second Circuit Court of Appeals. Despite all of this, there has been little systematic analysis of Hand’s approach to copyright and of the reasons why his jurisprudence in multiple areas of copyright law have survived the test of time. This Article argues that the longevity, influence and canonical status of Hand’s contributions to copyright are closely tied to his …
Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee
Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee
Faculty Scholarship
Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …
Comments On Council Draft 7 [Black Letter And Comments], Jane C. Ginsburg
Comments On Council Draft 7 [Black Letter And Comments], Jane C. Ginsburg
Faculty Scholarship
CD7 adopts several of the suggestions in my comments on PD8; I appreciate those modifications. CD7 does not, however, respond to a number of other criticisms and suggestions regarding PD8. For the benefit of the Council, I reprise the suggestions that I consider to be most significant to ensuring the accuracy of the draft (page and line references have been changed to reflect CD7)
Twenty Years Of Us Digital Copyright: Adapting From Analogue, Jane C. Ginsburg
Twenty Years Of Us Digital Copyright: Adapting From Analogue, Jane C. Ginsburg
Faculty Scholarship
This review of the period 2001–21 in US copyright law will summarize digital-dominated developments concerning the scope of exclusive rights and exceptions and liability regimes. It will address several developments, all related to the impact of the internet on the exploitation of works of authorship. Digital storage and communications have called into question the scope of the exclusive rights set out in the US Copyright Act, and they have considerably expanded the reach of the fair use exemption. They have strained statutory and common law regimes of secondary liability and prompted the development of a ‘volition’ predicate to primary liability. …
Misreading Campbell: Lessons For Warhol, Shyamkrishna Balganesh, Peter S. Menell
Misreading Campbell: Lessons For Warhol, Shyamkrishna Balganesh, Peter S. Menell
Faculty Scholarship
In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a “transformative use.” Purporting to rely on the Court’s adoption of “transformative use” as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous “transformativeness” inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might …
Comments On Preliminary Draft 8 [Black Letter And Comments], Jane C. Ginsburg
Comments On Preliminary Draft 8 [Black Letter And Comments], Jane C. Ginsburg
Faculty Scholarship
PD8 represents a great deal of labor, for which the Reporters deserve recognition. As detailed below, however, PD8’s occasional departures from or omissions of statutory text may not only be misleading or confusing, but – as has been the case with prior drafts – often have the result, if not the purpose, of whittling down the scope of copyright protection. In addition to identifying those instances and explaining their consequences, the following comments will suggest clarifications to some of the Comments and Illustrations.
United States Response To Questionnaire, Philippa Loengard, Anne Diamond, Lily Henderson, Jenica Wang
United States Response To Questionnaire, Philippa Loengard, Anne Diamond, Lily Henderson, Jenica Wang
Kernochan Center for Law, Media, and the Arts
ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.
The Last Line Of Defense: Addressing Section 512(G)’S Dwindling Capacity To Protect Educational Fair Users On The Internet, Gersham Johnson
The Last Line Of Defense: Addressing Section 512(G)’S Dwindling Capacity To Protect Educational Fair Users On The Internet, Gersham Johnson
Kernochan Center for Law, Media, and the Arts
The COVID-19 pandemic has rapidly transformed education from one of the least digitized sectors in the U.S. economy to a largely online phenomenon, with up to 93% of households with school-age children relying on distance learning. The value of online educational opportunities has extended beyond traditional purveyors of education as well, with online service providers (OSPs) like YouTube reporting an increase in average daily views for educational videos produced by subscribers (“users”).
The rise of user-generated content in online education (“educational content”) is merely part of a larger sea change as more content is uploaded to OSPs than ever before. …
The Institutionalist Turn In Copyright, Shyamkrishna Balganesh
The Institutionalist Turn In Copyright, Shyamkrishna Balganesh
Faculty Scholarship
The institutionalist turn refers to the reality that over the last decade and a half, the Court’s copyright jurisprudence has come to focus less and less on directly resolving substantive issues within the landscape of copyright doctrine. It has instead become a principal site of debate and disagreement over issues that have a direct bearing on the role, competence, and legitimacy of the Court within the copyright system. The institutionalist turn does not imply that the Court’s decisions have altogether avoided engaging substantive copyright issues; merely that its engagement of copyright doctrine has come to be intertwined with — and …
Of Autonomy, Sacred Rights, And Personal Marks, Shyamkrishna Balganesh
Of Autonomy, Sacred Rights, And Personal Marks, Shyamkrishna Balganesh
Faculty Scholarship
This Response examines three different senses in which the idea of autonomy might operate within trademark law’s rules relating to personal marks (i.e., marks that identity an individual) and shows that each of them is critically incomplete or too weak to independently sustain the justificatory burden for the domain. It then examines the worrisome possibility that courts’ allusions to autonomy here are little more than a trope for other considerations. It finally looks at how a genuine commitment to autonomy might be integrated into the principally market-driven framework of trademark law.
The Genius Of Common-Law Intellectual Property, Shyamkrishna Balganesh
The Genius Of Common-Law Intellectual Property, Shyamkrishna Balganesh
Faculty Scholarship
Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common-law intellectual property. In it, we see his attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common-law intellectual property refers to different judge-made causes of action that create forms of exclusive rights and privileges in intangibles, interferences that are then rendered enforceable through private liability. In this essay, I examine Epstein’s writing on two such doctrines, hot-news misappropriation and cybertrespass, which embrace several important ideas to which modern discussions of intellectual property would …
Copyright, Creativity, Big Media And Cultural Value: Incorporating The Author, Jane C. Ginsburg
Copyright, Creativity, Big Media And Cultural Value: Incorporating The Author, Jane C. Ginsburg
Faculty Scholarship
Copyright, Creativity, Big Media and Cultural Value is a wide-ranging work of immense erudition and archival research, combining several historical studies of the ‘incorporation’ of the author in different sectors of the ‘creative industries’. The book’s subtitle, ‘Incorporating the Author’, astutely encompasses multiple meanings, whose implications the book works through. These include the author as an initiating participant in a larger economic structure (Chapter 3 (print publishing)). But also, the author as a bit player enveloped by a larger economic structure (Chapter 5 (film industry)). And the author (or performer) as an autonomous object of economic value (Chapters …
Intellectual Property, Independent Creation, And The Lockean Commons, Mala Chatterjee
Intellectual Property, Independent Creation, And The Lockean Commons, Mala Chatterjee
Faculty Scholarship
Copyrights and patents are differently structured intellectual property rights in different kinds of entities. Nonetheless, they are widely regarded by U.S. scholars as having the same theoretical underpinnings. Though scholars have sought to connect philosophical theories of property to intellectual property, with a particular interest in the labor theory of John Locke, these explorations have not sufficiently probed copyrights’ and patents’ doctrinal differences or their philosophical implications for the theories explored. This Article argues that a defining difference between copyrights and patents has normative significance for the framework of Lockean property theory: namely, that copyright law treats independent creation as …
Comments On Council Draft 6 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek
Comments On Council Draft 6 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek
Faculty Scholarship
We appreciate the Reporters’ incorporation of some of our comments on recent drafts. There remain, however, certain flaws in CD6 that should be addressed. We explain the issues, below.
Proving Copying, Shyamkrishna Balganesh, Peter S. Menell
Proving Copying, Shyamkrishna Balganesh, Peter S. Menell
Faculty Scholarship
Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …
Floors And Ceilings In International Copyright Treaties: Berne/Trips/Wct Minima And Maxima, Jane C. Ginsburg
Floors And Ceilings In International Copyright Treaties: Berne/Trips/Wct Minima And Maxima, Jane C. Ginsburg
Faculty Scholarship
This paper addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by …
The Case For The Ccb: A Defense Of The Constitutionality Of The Copyright Claims Board, Adam Vischio
The Case For The Ccb: A Defense Of The Constitutionality Of The Copyright Claims Board, Adam Vischio
Kernochan Center for Law, Media, and the Arts
Copyright litigation is expensive. Since copyright is federal law, disputes must be heard in federal court. Federal litigation can be prohibitively costly for creators bringing small claims, essentially leaving them with a right without a remedy against infringement of their work. Congress sought to alleviate this financial burden in 2020 when it passed the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act, thus creating the Copyright Claims Board (“CCB”) to adjudicate small copyright disputes.
Opponents raised constitutional concerns about the CCB throughout the legislative process. The concerns included the fact that the CCB officers would wield unreviewable power and that Congress …
Comments On Preliminary Draft 7 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek
Comments On Preliminary Draft 7 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek
Faculty Scholarship
PD7 is often confusing, largely as a result of failure to provide important explanations or definitions, or to tell the reader where that information can be found. Key terms, such as “edicts of law” and “formalities” remain undefined. Formalities are a principal topic of PD7; they deserve a more thorough description than the draft contains, addressing what formalities are, whether every declaratory obligation (or option) is a “formality,” or only those that go to the existence or enforcement of copyright (this is the Berne Convention meaning of “formality”).
United States Response To Questionnaire Concerning Copyright, Competition And Innovation, Philippa Loengard, Joshua Berlowitz, Stephany Kim
United States Response To Questionnaire Concerning Copyright, Competition And Innovation, Philippa Loengard, Joshua Berlowitz, Stephany Kim
Kernochan Center for Law, Media, and the Arts
ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.
International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Applicable Law, Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille Van Eechoud, Jane C. Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente
International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Applicable Law, Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille Van Eechoud, Jane C. Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente
Faculty Scholarship
The chapter “Applicable Law” of the International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”) provides principles on the choice of law in international intellectual property matters. The Guidelines confirm the traditional principle of the lex loci protectionis for the existence, transferability, scope and infringement of intellectual property rights. The law applicable to the initial ownership of registered rights is governed by the lex loci protectionis whereas the law of the closest connection is applied to determine the ownership of copyright. For contracts, freedom of choice is acknowledged. With regard to ubiquitous or multi-state infringement and …
Trading Pharma Goods The Wto Legal Framework, Neeraj Rajan Sabitha, Petros C. Mavroidis
Trading Pharma Goods The Wto Legal Framework, Neeraj Rajan Sabitha, Petros C. Mavroidis
Faculty Scholarship
Trading of pharma goods has attracted widespread global attention in the wake of the COVID-19 pandemic. The Agreement on Trade in Pharmaceutical Products (“Pharma Agreement”) – a sectoral agreement between a handful of WTO members – was concluded in 1994 and aimed to eliminate duties on various pharmaceutical products. Nevertheless, this is all that the Pharma Agreement does: it eliminates duties and does not touch upon the regulatory aspects relating to marketing of pharmaceutical goods. WTO members remain sovereign to decide on this score, but must observe the WTO Licensing Agreement as well as nondiscrimination. Thus, while the intensity of …
Should The U.S. Government Actively Assert Its Own Patents?, Christopher J. Morten, Barry Datlof, Amy Kapczynski, Donna Meuth, Zain Rizvi
Should The U.S. Government Actively Assert Its Own Patents?, Christopher J. Morten, Barry Datlof, Amy Kapczynski, Donna Meuth, Zain Rizvi
Faculty Scholarship
On March 10, 2021, our journal partnered with the Engelberg Center on Innovation Law and Policy to host a symposium addressing the role and impact of U.S. innovation policy on access to medicine. Our 2021 Symposium Issue — Volume 11, Issue 1 — captures that event.
The following article represents the second of four panels. This panel asked, “Should the U.S. government actively assert its own patents?” The panel was moderated by Christopher Morten, Deputy Director of NYU Law’s Technology Law & Policy Clinic. The panelists included Barry Datlof, Chief of Business Development and Commercialization in the Office of Medical …
Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg
Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg
Faculty Scholarship
This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a …
Comment On Andy Warhol Found. For The Visual Arts, Inc. V. Goldsmith, 992 F.3d 99 (2d Cir. 2021), Jane C. Ginsburg
Comment On Andy Warhol Found. For The Visual Arts, Inc. V. Goldsmith, 992 F.3d 99 (2d Cir. 2021), Jane C. Ginsburg
Faculty Scholarship
The Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith retreats both from its prior caselaw’s generous characterization of artistic reuse as “transformative,” and from the outcome-determinacy of a finding of “transformativeness.” The decision suggests both that courts may be applying a more critical understanding of what “transforms” copied content, and that courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The court also provided an important explanation of copyrightable authorship in photographs.
In addition to analyzing …
Legal Internalism In Modern Histories Of Copyright, Shyamkrishna Balganesh, Taisu Zhang
Legal Internalism In Modern Histories Of Copyright, Shyamkrishna Balganesh, Taisu Zhang
Faculty Scholarship
Legal internalism refers to the internal point of view that professional participants in a legal practice develop toward it. It represents a behavioral phenomenon wherein such participants treat the domain of law (or a subset of it) as normative, epistemologically self-contained, and logically coherent on its own terms regardless of whether the law actually embodies those characteristics. Thus understood, legal internalism remains an important characteristic of all modern legal systems. In this Review, we examine three recent interdisciplinary histories of copyright law to showcase the working of legal internalism. We argue that while their interdisciplinary emphasis adds to the conversation …
The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter S. Menell
The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter S. Menell
Faculty Scholarship
Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Productions, Inc. v. McDonald’s Corp. ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonald’s characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software code. …