Law Commons^™

Withholding Injunctions In Copyright Cases: Impacts Of Ebay, Pamela Samuelson

William & Mary Law Review

Before the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C., which ruled that courts should exercise equitable discretion when considering whether to issue permanent injunctions in patent infringement cases, courts routinely granted injunctions in copyright cases when plaintiffs proved that defendants had infringed or had likely infringed copyrights. Such findings triggered presumptions of irreparable harm, which were almost never rebutted. Only rarely would courts consider a balancing of hardships or effects of injunctions on public interests.

In the first several years after eBay, commentators reported that eBay had had little impact on the availability of injunctive …

Political Fair Use, Cathay Y. N. Smith

William & Mary Law Review

No abstract provided.

Mod Money, Mod Problems: A Critique Of Copyright Restrictions On Video Game Modifications And An Evaluation Of Associated Monetization Regimes, Carl "Ott" Lindstrom

William & Mary Business Law Review

Video game modifications (mods) have had a tremendously positive impact on the game industry, both in terms of commercial success and evolution of the medium. But the present court doctrine, enabled by Micro Star v. Formgen and abetted by restrictive End User License Agreements, greatly underserves the mod community and undermines the principal tenet of copyright law: the fundamental right to reap the benefits of what one has created. This Note examines and critiques the current doctrine and its ethical pitfalls. It also explores the pros and cons of current methods of mod monetization, including remakes, developer partnerships, and donation …

Knowing How To Know: Secondary Liability For Speech In Copyright Law, Laura A. Heymann

Faculty Publications

Contributory copyright infringement has long been based on whether the defendant, "with knowledge of the infringing activity," induced, caused, or materially contributed to another's infringing conduct. But few court opinions or scholarly articles have given due consideration to what it means to "know" of someone else's infringing conduct, particularly when the unlawfulness at issue cannot truly exist until a legal judgment occurs. How can one "know," in other words, that a court or jury will deem a particular use infringement rather than de minimis or fair use? At best, contributory defendants engage in a predictive exercise--in some cases, a more …

Reading Together And Apart: Juries, Courts, And Substantial Similarity In Copyright Law, Laura A. Heymann

Faculty Publications

No abstract provided.

Copyright Law’S Origin Stories, Laura A. Heymann

Popular Media

No abstract provided.

Scope, Mark A. Lemley, Mark P. Mckenna

William & Mary Law Review

Virtually every significant legal doctrine in IP is either about whether the plaintiff has a valid IP right that the law will recognize (validity); whether the defendant’s conduct violates that right (infringement); or whether the defendant is somehow privileged to violate that right (defenses). IP regimes tend to separate doctrines in these three legal categories relatively strictly. They apply different burdens of proof and persuasion to infringement and validity. In many cases they ask different actors to decide one doctrine but not the other. And even where none of that is true, the nature of IP law is to categorize …

Abc V. Aereo And The Humble Judge, James Y. Stern

Faculty Publications

No abstract provided.

Of Pornography Pirates And Privateers: Applying Fdcpa Principles To Copyright Trolling Litigation, Henry D. Alderfer

William & Mary Law Review

No abstract provided.

Contracting In The Dark: Casting Light On The Shadows Of Second Level Agreements, Abigail R. Simon

William & Mary Business Law Review

In the early days of the Internet, copyright owners concentrated on eliminating infringement threats posed by the new technology. Today, many copyright owners are partnering with major user-generated content platforms in order to participate in and receive compensation for some third-party infringement occurring on the Internet. YouTube pioneered such partnership arrangements in 2006 with a new kind of copyright license now referred to as a “second level agreement.” In 2008, YouTube unveiled Content ID, which streamlined the process for entering into second level agreements with the site. This Note analyzes Content ID and the second level agreements underlying it to …

Copyright Essentialism And The Performativity Of Remedies, Andrew Gilden

William & Mary Law Review

This Article critically examines the interrelationship between substantive copyright protections and the remedies available for infringement. Drawing from constitutional remedies scholarship and poststructural theories of performativity, it argues that a court’s awareness of the likely remedy award in a particular dispute —combined with its normative view of how future actors should address similar disputes—“reaches back” and shapes the determination of the parties’ respective rights.

Copyright scholars have long sought to limit the availability of injunctive relief, and several recent court decisions have adopted this reform. For example, in Salinger v. Colting the Second Circuit vacated a preliminary injunction against a …

Economies Of Desire: Fair Use And Marketplace Assumptions, Rebecca Tushnet

William & Mary Law Review

At the moment that "incentives"for creation meet "preferences"for the same, the economic account of copyright loses its explanatory power. This piece explores the ways in which the desire to create can be excessive, beyond rationality, and free from the need for economic incentive. Psychological and sociological concepts can do more to explain creative impulses than classical economics. As a result, a copyright law that treats creative activity as a product of economic incentives can miss the mark and harm what it aims to promote. The idea of abundance-even overabundance-in creativity can help define the proper scope of copyright law, especially …

Administering Fair Use, Jason Mazzone

William & Mary Law Review

Fair use is not working. As written by Congress and applied by the courts, the fair use law fails to give individuals sufficiently clear guidance to determine in advance whether their uses of copyrighted works are fair and therefore noninfringing. When the law does not regulate adequately, markets can supply the rules. Thus, copyright owners and prospective users of copyrighted works can-and donegotiate over and enter into contracts specifying permissible uses. However, leaving fair use to the market is far from desirable. Fair use is not meant to be something that is sold and bought like other market goods. Fair …

Introduction: The Boundaries Of Intellectual Property Symposium, I. Trotter Hardy

William & Mary Law Review

No abstract provided.

A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane Winn, Nicolas Jondet

William & Mary Law Review

In 2007, France created the Regulatory Authority for Technical Measures (lAutoritj de Rdgulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Socidte de l'Information" (DADVSI). ARMT is both …

Statutory Damages In Copyright Law: A Remedy In Need Of Reform, Pamela Samuelson, Tara Wheatland

William & Mary Law Review

No abstract provided.

How To Write A Life: Some Thoughts On Fixation And The Copyright/Privacy Divide, Laura A. Heymann

William & Mary Law Review

No abstract provided.

Imitation Is The Sincerest Form Of … Infringement?: Guitar Tabs, Fair Use, And The Internet, Jocelyn Kempema

William & Mary Law Review

No abstract provided.

Illegal P2p File Sharing On College Campuses – What's The Solution?, Antionette D. Bishop

Student Award Winning Papers

No abstract provided.

The Trademark/Copyright Divide, Laura A. Heymann

Faculty Publications

No abstract provided.

Inducement As Contributory Copyright Infringement: Metro-Goldwyn-Mayer Studios Inc. V. Grokster, Ltd., Laura A. Heymann

Faculty Publications

No abstract provided.

Amateur-To-Amateur, Dan Hunter, F. Gregory Lastowka

William & Mary Law Review

Copyright, it is commonly said, matters in society because it encourages the production of socially beneficial, culturally significant expressive content. Our focus on copyright's recent history, however, blinds us to the social information practices that have always existed. In this Article, we examine these social information practices, and query copyright's role within them. We posit a functional model of what is necessary for creative content to move from creator to user. These are the functions dealing with the creation, selection, production, dissemination, promotion, sale, and use of expressive content. We demonstrate how centralized commercial control of information content has been …

Who Speaks Latin Anymore? Translating De Minimis Use For Application To Music Copyright Infringement And Sampling, David S. Blessing

William & Mary Law Review

No abstract provided.

A Pattern-Oriented Approach To Fair Use, Michael J. Madison

William & Mary Law Review

More than 150 years into development of the doctrine of "fair use" in American copyright law, there is no end to legislative, judicial, and academic efforts to rationalize the doctrine. Its codification in the 1976 Copyright Act appears to have contributed to its fragmentation, rather than to its coherence. As did much of copyright law, fair use originated as a judicially unacknowledged effort via the law to validate certain favored practices and patterns. In the main, it has continued to be applied as such, though too often courts mask their implicit validation of these patterns in the now-conventional "caseby- case" …

Criminal Copyright Infringement, I. Trotter Hardy

William & Mary Bill of Rights Journal

No abstract provided.

A Response To Gregg Williams' "A Threat To Future Software", I. Trotter Hardy

Popular Media

No abstract provided.

The Public Interest And The Right To Copy Nonfunctional Product Features

William & Mary Law Review

No abstract provided.

Copyright Law - Legality Of Photocopying Copyrighted Publications. Williams & Wilkins Co. V. United States, __ F.2d __ (Ct. Cl. 1972)

William & Mary Law Review

No abstract provided.