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Articles 1 - 30 of 74
Full-Text Articles in Law
Discovering Ebay's Impact On Copyright Injunctions Through Empirical Evidence, Matthew Sag, Pamela Samuelson
Discovering Ebay's Impact On Copyright Injunctions Through Empirical Evidence, Matthew Sag, Pamela Samuelson
Faculty Articles
This Article reports on new empirical evidence discrediting the widely held view that judges have resisted applying the Supreme Court’s teachings in eBay Inc. v. MercExchange, L.L.C. about injunctive relief in copyright cases. That 2006 patent law decision ruled that courts should not automatically issue injunctions upon a finding of infringement; instead, plaintiffs must prove their entitlement to injunctive relief. eBay had a seismic impact on patent litigation and greatly reduced the threat that small infringements could be leveraged into billion-dollar settlements. Yet prior empirical work, at least one major copyright law treatise, and many articles assert that eBay had …
Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet
Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet
Faculty Scholarship
To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …
There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco
There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco
Faculty Scholarship
Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …
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.
Brief Of Amici Curiae Intellectual Property Scholars In Support Of Defendants-Appellees, Rebecca Tushnet, Laura A. Heymann
Brief Of Amici Curiae Intellectual Property Scholars In Support Of Defendants-Appellees, Rebecca Tushnet, Laura A. Heymann
Briefs
No abstract provided.
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.
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.
The Arkansas Code And Georgia V. Public.Resource.Org, Daniel Bell
The Arkansas Code And Georgia V. Public.Resource.Org, Daniel Bell
Arkansas Law Notes
The United States Supreme Court decided Georgia v. Public.Resource.Org, Inc. (“PRO”) in late April, 2020, a case with major implications for those who rely on the Arkansas statutes. The case addressed whether extra materials Georgia includes in its official statutes, the annotations, can be copyrighted, or if they are in the public domain and can be freely distributed without permission. The case pitted two important competing interests against each other: the ability of citizens to freely access the official versions of laws of their state, versus the interests of a third-party publisher in being compensated for its work. Arkansas produces …
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”).
Fair Dealing For The Purpose Of Education: York University V The Canadian Copyright Licensing Agency, Pascale Chapdelaine
Fair Dealing For The Purpose Of Education: York University V The Canadian Copyright Licensing Agency, Pascale Chapdelaine
Law Publications
In York University v The Canadian Copyright Licensing Agency (2020), the Federal Court of Appeal was confronted with two issues at the heart of ongoing debates in Canadian copyright law. First, whether tariffs of copyright collective societies are mandatory. Second, and the main focus of this case comment, how should the fair dealing doctrine be interpreted with respect to the purpose of education. The Federal Court of Appeal upheld the Federal Court decision that York University Fair dealing Guidelines did not meet the fair dealing requirements in copyright law. This case comment highlights how the Federal Court and Federal Court …
Propertizing Fair Use, Abraham Bell, Gideon Parchomovsky
Propertizing Fair Use, Abraham Bell, Gideon Parchomovsky
All Faculty Scholarship
In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The landmark case of Google v. Oracle, currently pending before the Supreme Court, illustrates why this is problematic. Even if the Court were to rule that Google’s use of Oracle’s Java API’s was fair, the ruling would not protect the numerous parties that developed Java applications for the Android operating system; it would only shelter Google and Google’s particular use. This is not an isolated problem; the per use/per user rule cuts across fair uses of copyrighted …
Comments On Preliminary Draft 6, Jane C. Ginsburg, June M. Besek
Comments On Preliminary Draft 6, Jane C. Ginsburg, June M. Besek
Faculty Scholarship
We briefly reiterate the principal General Comments we made with respect to PD5, because PD6 continues, including in its two new sections, to manifest the same overall shortcomings: (i) the relationship of the draft to the statute remains highly inconsistent; (ii) the Restatement needs a consistent and transparent methodology for restating a statute; and (iii) continuing to carry on without clear methodological principles will undermine the utility of this project and the credibility of the ALI.
Letter To Council Members Regarding Council Draft 3, Jane C. Ginsburg, June M. Besek
Letter To Council Members Regarding Council Draft 3, Jane C. Ginsburg, June M. Besek
Faculty Scholarship
We understand that the ALI Council will consider Council Draft 3 (CD3) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on October 17-18, 2019. The Council may not appreciate how controversial a project this is: the U.S. Copyright Office, the U.S. Patent and Trademark Office, the American Bar Association’s Section of Intellectual Property Law, the New York City Bar Association’s Committee on Copyright and Literary Property, academics and other Advisers and Liaisons have expressed serious concerns about this and previous Council Drafts and Preliminary Drafts; indeed, the Register of Copyrights deplored the project as a …
Imaginary Bottles, Jessica Litman
Imaginary Bottles, Jessica Litman
Articles
This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade, and …
Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Chris Dove, Ernest A. Young
Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Chris Dove, Ernest A. Young
Faculty Scholarship
No abstract provided.
Minds, Machines, And The Law: The Case Of Volition In Copyright Law, Mala Chatterjee, Jeanne C. Fromer
Minds, Machines, And The Law: The Case Of Volition In Copyright Law, Mala Chatterjee, Jeanne C. Fromer
Faculty Scholarship
The increasing prevalence of ever-sophisticated technology permits machines to stand in for or augment humans in a growing number of contexts. The questions of whether, when, and how the so-called actions of machines can and should result in legal liability thus will also become more practically pressing. One important set of questions that the law will inevitably need to confront is whether machines can have mental states, or — at least — something sufficiently like mental states for the purposes of the law. This is because a number of areas of law have explicit or implicit mental state requirements for …
United States Response To Questionnaire Concerning Copyright In Action: International Perspectives On Remedies, Philippa Loengard, Julia Ambros, Andrew Elliott, Daniel Lee
United States Response To Questionnaire Concerning Copyright In Action: International Perspectives On Remedies, Philippa Loengard, Julia Ambros, Andrew Elliott, Daniel Lee
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.
Defense Against The Dark Arts Of Copyright Trolling, Matthew Sag, Jake Haskell
Defense Against The Dark Arts Of Copyright Trolling, Matthew Sag, Jake Haskell
Faculty Articles
In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at noninfringers as well as infringers. This practice is a subset of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet …
Commentary, Improving The Quality And Consistency Of Copyright Infringement Analysis In Music, Kristelia A. García
Commentary, Improving The Quality And Consistency Of Copyright Infringement Analysis In Music, Kristelia A. García
Publications
No abstract provided.
Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon
Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon
Faculty Scholarship
My own view is that Goold overstates the explanatory role of tort law. But even were that not the case, the courts need to reach some kind of “settled” understanding on these various interests before a cause of action is created or definitively rejected, and that no such consensus on the three matters mentioned yet exists, whether they are viewed as forms of tort or otherwise. Goold’s work may nevertheless be an important step toward reaching closure on these and other open questions in copyright law.
Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold - Draft - 05-15-2017, Wendy J. Gordon
Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold - Draft - 05-15-2017, Wendy J. Gordon
Scholarship Chronologically
Patrick Goold’s interesting new article, Unbundling the “Tort” of Copyright Infringement (“Unbundling”) centers on a key lack of clarity that Professor Goold perceives in the cause of action for copyright infringement. The lack of clarity, he argues, afflicts threshold definitions of what constitutes actionable copying.
Fetishizing Copies, Jessica Litman
Fetishizing Copies, Jessica Litman
Book Chapters
Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the …
Scenes From The Copyright Office, Brian L. Frye
Scenes From The Copyright Office, Brian L. Frye
Law Faculty Scholarly Articles
This essay uses a series of vignettes drawn from Billy Joel’s career to describe his encounters with copyright law. It begins by examining the ownership of the copyright in Joel’s songs. It continues by considering the authorship of Joel’s songs, and it concludes by evaluating certain infringement actions filed against Joel. This Essay observes that Joel’s encounters with copyright law were confusing and frustrating, but also quite typical. The banality of his experiences captures the uncertainty and incoherence of copyright doctrine.
Authorship And The Boundaries Of Copyright: Ideas, Expressions, And Functions In Yoga, Choreography, And Other Works, Christopher Buccafusco
Authorship And The Boundaries Of Copyright: Ideas, Expressions, And Functions In Yoga, Choreography, And Other Works, Christopher Buccafusco
Faculty Scholarship
This essay uses the Ninth Circuit’s opinion in Bikram’s Yoga College of India v. Evolation Yoga as an opportunity to analyze the nature of copyrightable authorship and the mechanisms that the law uses to screen out uncopyrightable content from otherwise copyrightable works. I argue that although the court likely reached the right result in Bikram, it did so in a confused and poorly supported manner. The court misunderstood the nature of the idea/expression distinction, the role of section 102(b), and the appropriate mechanism for screening out functional features of works. These aspects of the court’s opinion are widespread in copyright …
The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, David Fagundes
The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, David Fagundes
Faculty Scholarship
Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no economic harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-economic harms tend to stifle rather than encourage creative production. While much scholarship has critiqued copyright’s economic theory from the perspective of authors’ incentives to create, ours is the first to explore this issue from the perspective of owners’ motivations to sue for infringement. We turn to moral psychology, and in particular to moral …
Fair Use And The New Transformative, Brian Sites
Fair Use And The New Transformative, Brian Sites
Faculty Scholarship
No abstract provided.
Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney's Fees Under Section 505 Of The Copyright Act, David E. Shipley
Scholarly Works
The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …
Plagiarism Is Not A Crime, Brian L. Frye
Plagiarism Is Not A Crime, Brian L. Frye
Law Faculty Scholarly Articles
Copyright infringement and plagiarism are related but distinct concepts. Copyright prohibits certain uses of original works of authorship without permission. Plagiarism norms prohibit copying certain expressions, facts, and ideas without attribution. The prevailing theory of copyright is the economic theory, which holds that copyright is justified because it is economically efficient. This article considers whether academic plagiarism norms are economically efficient. It concludes that academic plagiarism norms prohibiting non-copyright infringing plagiarism are not efficient and should be ignored.
The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh
The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh
Faculty Scholarship
Central to modern copyright law is the test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components: actual copying – the question whether the defendant did in fact copy – and improper appropriation – the question whether such copying, if it did exist, was unlawful. Somewhat counterintuitively, though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach …
Silent Similarity, Jessica D. Litman
Silent Similarity, Jessica D. Litman
Articles
From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form—silent movies—had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases—in particular, Nichols v. Universal Pictures—are canonical today. They are not, however, well-understood. In particular, the problem at the heart of …