Law Commons^™

Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but we know less about the choices people make about copyright on a daily basis, especially when they are not at work. Thus, this article examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Fans justify their unauthorized derivative works as legitimate, no matter what formal copyright law says, with …

Domain And Forum: Public Space, Public Freedom, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The particular problems of content and viewpoint discrimination rarely surface in copyright, though some people have argued that fair use implicates them. Nonetheless, one important lesson for copyright from public forum doctrine is that First Amendment law can take some - though not many - speech-related options off the table. In this brief comment, I argue that analogies between copyright law and public forum doctrine highlight important shared commitments to free and robust public discourse, but also substantial practical barriers to judicial enforcement of those commitments.

Creativity And Culture In Copyright Theory, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Creativity is universally agreed to be a good that copyright law should seek to promote, yet copyright scholarship and policymaking have proceeded largely on the basis of assumptions about what it actually is. When asked to discuss the source of their inspiration, individual artists describe a process that is intrinsically ineffable. Rights theorists of all varieties have generally subscribed to this understanding, describing creativity in terms of an individual liberty whose form remains largely unspecified. Economic theorists of copyright work from the opposite end of the creative process, seeking to divine the optimal rules for promoting creativity by measuring its …

Pervasively Distributed Copyright Enforcement, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In an effort to control flows of unauthorized information, the major copyright industries are pursuing a range of strategies designed to distribute copyright enforcement functions across a wide range of actors and to embed these functions within communications networks, protocols, and devices. Some of these strategies have received considerable academic and public scrutiny, but much less attention has been paid to the ways in which all of them overlap and intersect with one another. This article offers a framework for theorizing this process. The distributed extension of intellectual property enforcement into private spaces and throughout communications networks can be understood …

My Library: Copyright And The Role Of Institutions In A Peer-To-Peer World, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Today's technology turns every computer - every hard drive - into a type of library. But the institutions traditionally known as libraries have been given special consideration under copyright law, even as commercial endeavors and filesharing programs have begun to emulate some of their functions. This Article explores how recent technological and legal trends are affecting public and school-affiliated libraries, which have special concerns that are not necessarily captured by an end-consumer-oriented analysis. Despite the promise that technology will empower individuals, we must recognize the crucial structural role of intermediaries that select and distribute copyrighted works. By exploring how traditional …

Copyright, Commodification, And Culture: Locating The Public Domain, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The relationship between increased commodification and the public domain in copyright law is the subject of considerable controversy, both political and theoretical. The paper argues that beliefs about what legal definition the public domain requires depend crucially on implicit preconceptions about what a public domain is. When considered in broader historical context, the term public domain has a specific set of denotative and connotative meanings that constitute the artistic, intellectual, and informational public domain as a geographically separate place, portions of which are presumptively eligible for privatization. This idea meshes well with the current push toward commodification in copyright. The …

Artists Don't Get No Respect: Panel On Attribution And Integrity, Rebecca Tushnet, Jonathan Band, Robert Clarida, Eugene Mopsik

Georgetown Law Faculty Publications and Other Works

When I was considering the question of the moral right to attribution and how unauthorized fan creativity relates to that concept, it struck me that there are two interesting issues from a theoretical perspective. The first is: who gets the credit? When I was in law school and discovered fan fiction, the reason why I got into intellectual property was because most of these stories had a disclaimer-no copyright infringement intended, these characters aren't mine, I'm not making any money, please don't sue. And as a student, my question was – does that work? Is that good enough? I was …

Comment: Copyright's Public-Private Distinction, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

I would like to focus my remarks on the question of user privacy. In her fascinating paper for this Symposium, Professor Litman expresses a guarded optimism that in its forthcoming decision in MGM v. Grokster, I the Court will retain the staple article of commerce doctrine that it first articulated in Sony. She opines, however, that the user privacy strand of the Sony decision is a lost cause. I don't believe that it's possible to retain the staple article of commerce doctrine while abandoning user privacy. At least in the realm of networked digital technologies, the two concepts are inextricably …

The Place Of The User In Copyright Law, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Copyright doctrine . . . is characterized by the absence of the user. As copyright moves into the digital age, this absence has begun to matter profoundly. As I will show, the absence of the user has consequences that reach far beyond debates about the legality of private copying, or about the proper scope of user-oriented exemptions such as the fair use and first sale doctrines. The user's absence produces a domino effect that ripples through the structure of copyright law, shaping both its unquestioned rules and its thorniest dilemmas. The resulting imbalance - empty space where one cornerstone of …

The Future Of Copyright, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Review of Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity by Lawrence Lessig (2004).

Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems--Napster, Gnutella, KaZaA, Grokster, and Freenet3--are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony substantial noninfringing use defense. The digital cassette recorder begat the Audio Home Recording Act. The internet begat the Digital …

Copy This Essay: How Fair Use Doctrine Harms Free Speech And How Copying Serves It, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay …

Copyright As A Model For Free Speech Law: What Copyright Has In Common With Anti-Pornography Laws, Campaign Finance Reform, And Telecommunications Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright raises real and troubling free speech issues, and standard responses to those concerns are inadequate. This Article aims to put copyright in the context of other free speech doctrine. Acknowledging the link between copyright and free speech can help determine the proper contours of a copyright regime that both allows and limits property rights in expression, skewing the content of speech toward change.

Copyright And The Perfect Curve, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

This essay argues that the assumption that “progress” is qualitatively independent of the underlying entitlement structure is wrong. In particular, I shall argue that a shift to a copyright rule structure based on highly granular, contractually enforced “price discrimination” would work a fundamental shift, as well, in the nature of the progress produced. The critique of the contractual price discrimination model, moreover, exposes deep defects in the use of neoclassical “law and economics” methodology to solve problems relating to the incentive structure of copyright law. What is needed, instead, is an economic model of copyright that acknowledges the central role …