Digital Commons Network^™

First Amendment Based Copyright Misuse, David S. Olson

William & Mary Law Review

We are at a crossroads with respect to the underdeveloped equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or—if judges accept the proposal of this Article—courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control others’ speech. The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new …

Taming The Derivative Works Right: A Modest Proposal For Reducing Overbreadth And Vagueness In Copyright, Christina Bohannon

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court recently decided United States v. Stevens, a case challenging the constitutionality of a federal statute that punishes commercial depictions of animal cruelty, such as videos of dog fights. Concluding that the statute prohibited a good deal of speech that was unrelated to eradicating illegal animal cruelty, the Court held that the statute was substantially overbroad and therefore invalid under the First Amendment.

This case and other First Amendment cases help to shed light on the problems of overbreadth and vagueness in copyright law, particularly the derivative works right. The copyright holder's derivative works right prohibits others from …

Technological Fair Use, Edward Lee

All Faculty Scholarship

The Article proposes a framework tailoring fair use specifically for technology cases. At the inception of the twenty-first century, information technologies have become increasingly central to the U.S. economy. Not surprisingly, complex copyright cases involving speech technologies, such as DVRs, mp3 devices, Google Book Search, and YouTube, have increased as well. Yet existing copyright law, developed long before digital technologies, is ill-prepared to handle the complexities these technology cases pose. The key question often turns, not on prima facie infringement, but on the defense of fair use, which courts have too often relegated to extremely fact-specific decisions. The downside to …

Kurlan V. Cbs: Justice Carter’S Prescient Dissent— A Glimpse Into The Future Of Copyright Protection In The Entertainment Industry, Marc H. Greenberg

Publications

A scholar of intellectual property law quickly learns that complacency, and the privilege of working in a largely static and unchanging body of law, is not a benefit available to those who labor in this endlessly fascinating but fast-paced and always changing field. The 1953 decision of the California Supreme Court in Kurlan v. CBS (hereinafter “Kurlan”), provides yet another example of this principle. Many of the assumptions found in the majority decision have long been abandoned or substantially revised. Justice Carter’s dissent, however, contains the seeds of those revisions, and is prescient in its understanding of the need to: …

Nieves V. Home Box Office, Inc., Andrew Nieh

NYLS Law Review

No abstract provided.

Technological Fair Use, Edward Lee

Edward Lee

The Article proposes a framework tailoring fair use specifically for technology cases. At the inception of the twenty-first century, information technologies have become increasingly central to the U.S. economy. Not surprisingly, complex copyright cases involving speech technologies, such as DVRs, mp3 devices, Google Book Search, and YouTube, have increased as well. Yet existing copyright law, developed long before digital technologies, is ill-prepared to handle the complexities these technology cases pose. The key question often turns, not on prima facie infringement, but on the defense of fair use, which courts have too often relegated to extremely fact-specific decisions. The downside to …