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Full-Text Articles in Law
Defining Fair Use In The Digital Era, Joseph James Raffetto
Defining Fair Use In The Digital Era, Joseph James Raffetto
ExpressO
The increasing prevalence of technology, and the ease with which the public and companies can reproduce, recombine, and reuse copyrighted works, has rendered the once-confusing fair use doctrine a virtual uncertainty. Given limited congressional guidance, courts have relied heavily on the secondary use’s potential effect on the market for the original work. While this reliance is based on the valid concern of maintaining adequate creative incentives, the enormous growth of licensing markets has resulted in an overemphasis on economic concerns. Recent court decisions indicate that fair use now turns not on the protection of creative incentives, but rather the preservation …
Risk Aversion And Rights Accretion In Intellectual Property Law, James Gibson
Risk Aversion And Rights Accretion In Intellectual Property Law, James Gibson
ExpressO
Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict, intellectual property users often seek licenses even when proceeding without one might be permissible. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine; the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory--where risk aversion again creates licensing markets, which cause …
Beyond Abstraction, The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew J. Sag
Beyond Abstraction, The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew J. Sag
ExpressO
Uncertainty as to the optimum extent of protection has generally limited the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This article explores the relationship between copyright scope, doctrinal efficiency and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law. The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use.
Opting Out: Procedural Fair Use, Michael R. Mattioli
Opting Out: Procedural Fair Use, Michael R. Mattioli
ExpressO
This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright’s doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn’t want their books scanned. Despite this measure, two major authors’ groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract …
Fair Use And The First Amendment: Corporate Control Of Copyright Is Stifling Documentary Making And Thwarting The Aims Of The First Amendment, Paige Gold
ExpressO
Documentary motion pictures constitute a crucial part of contemporary public debate, because in today’s highly consolidated mass media environment, documentaries offer the kinds of independent voices that the First Amendment was designed to protect. However, current intellectual property practices are chilling speech by forcing documentary filmmakers to tailor their films to accommodate new, strict licensing practices. When filmmakers are compelled to edit their work to meet insurance requirements, it harms the interests of not just the filmmaker, but also the public. Thus, the “clearance culture,” in which anything and everything that could possibly lead to a lawsuit must be cleared, …