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A License Is Not A "Contract Not To Sue": Disentangling Property And Contract In The Law Of Copyright Licenses, Christopher M. Newman
A License Is Not A "Contract Not To Sue": Disentangling Property And Contract In The Law Of Copyright Licenses, Christopher M. Newman
Christopher M Newman
The assertion that a “license” is simply a “contract not to sue” has become a commonplace in both copyright and patent law. I argue that this notion is conceptually flawed, and has become a straightjacket channeling juristic reasoning into unproductive channels. At root, a license is not a contract, but a form of property interest. It may be closely intertwined with a set of contractual relationships, but its nature and consequences cannot be satisfactorily explained from within the world of contract doctrine alone. In this article, I seek to explain the complementary but parallel roles played by property and contract …
Transformation In Property And Copyright, Christopher M. Newman
Transformation In Property And Copyright, Christopher M. Newman
Christopher M Newman
Copyright requires us to distinguish between two different ways of transforming a “work of authorship”: “derivative works” and “transformative fair uses.” The absence of a clear line results in a tendency to assign all value arising proximately from a work to copyright owners. Many people blame this expansionist tendency on a “propertarian” understanding of copyright, and argue that the solution is to abandon any notion of copyright as property. I agree that current copyright doctrine often gives excessively broad scope to the exclusive rights of copyright owners, but argue that this may be a result of copyright not being “propertarian” …
Transformation In Property And Copyright, Christopher M. Newman
Transformation In Property And Copyright, Christopher M. Newman
Christopher M Newman
Copyright requires us to distinguish between two different ways of transforming a “work of authorship”: “derivative works” and “transformative fair uses.” The absence of a clear line results in a tendency to assign all value arising proximately from a work to copyright owners. Many people blame this expansionist tendency on a “propertarian” understanding of copyright, and argue that the solution is to abandon any notion of copyright as property. I agree that current copyright doctrine often gives excessively broad scope to the exclusive rights of copyright owners, but argue that this may be a result of copyright not being “propertarian” …
Infringement As Nuisance, Christopher M. Newman
Infringement As Nuisance, Christopher M. Newman
Christopher M Newman
When should we grant injunctions against infringers of intellectual property? Before the Supreme Court’s decision in eBay v. MercExchange, the presumptive answer used to be “always,” on the grounds that property consists of a right to exclude, and infringement—like trespass—is a direct negation of that right. As property scholars Richard Epstein and Henry Smith have argued, this traditional dominance of property rules serves important purposes, reducing information costs and preventing the systematic undercompensation of rightsholders endemic to a liability rule regime. Nevertheless, there are other common law doctrines—notably accession and nuisance—that sometimes countenance use of liability rules to rescue from …