Law Commons^™

Death Of Copyright, Paul Gugliuzza

Faculty Scholarship

The four primary bodies of intellectual property law—patent law, copyright law, trademark law, and the law of trade secrets—address the question of duration in different ways. Trade secrets have no fixed duration; the law protects against misappropriation as long as the relevant information remains secret. Trademark protection lasts as long as the mark retains its capacity to distinguish the goods or services it is attached to. In patent law—my primary area of scholarship—duration is fixed, finite, and generally straightforward to determine: you get twenty years from the date you file your patent application. Copyright duration, by contrast, varies depending on …

The Uncopyrightability Of Edicts Of Government, Shyamkrishna Balganesh, Peter S. Menell

All Faculty Scholarship

This amicus brief filed in the Supreme Court appeal of Georgia, et al., v. Public.Resource.Org.,explores the interplay of copyright law and the edicts of government doctrine. The “edicts of government” doctrine was first validated by the U.S. Supreme Court in a series of nineteenth century cases. Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); Banks v. Manchester, 128 U.S. 244 (1888); Callaghan v. Meyers, 128 U.S. 617 (1888). While the doctrine has never been directly recognized in the express wording of the copyright statute, it is nevertheless firmly rooted in foundational copyright principles that are …

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 …

Knowledge Commons (2019), Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Book Chapters

This chapter provides an introduction to and overview of the knowledge commons research framework. Knowledge commons refers to an institutional approach (commons) to governing the production, use, management, and/or preservation of a particular type of resource (knowledge). The research framework supplies a template for interrogating the details of knowledge commons institutions on a case study basis, generating qualitative data that may be used to support comparative analysis.

Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder

Georgetown Law Faculty Publications and Other Works

The quarter century since Barlow’s writing allows us to assess his prophecy. The economy moved in the very direction that Barlow anticipated—from an economy focused on the ownership of things to an economy based on services and experiences. In high-income countries, services now account for three-quarters of the gross domestic product.

But intellectual property proved more resilient and adaptable than Barlow predicted. Intellectual property law both offered exceptions where necessary, while simultaneously expanding to cover new forms of creativity and activities. In this short essay, we argue that, for good or ill, intellectual property has reconfigured itself for an economy …

Review Of "Rights And Reproductions: The Handbook For Cultural Institutions" (2nd Ed.), Georgia Westbrook

School of Information Studies - Post-doc and Student Scholarship

The second edition of Rights and Reproductions: The Handbook for Cultural Institutions provides an updated look at intellectual property, related laws, and appropriate use for cultural institutions. The authors provide a robust and clear explanation of relevant issues and serves a wide range of users employing the text as a reference work.

Brief Of The R Street Institute As Amicus Curiae In Support Of Petitioner, Charles Duan

Amicus Briefs

It is a common but misleading premise of cases such as this one that the disappointed patent applicant has two options for judicial review: a 35 U.S.C. § 145 district court action and an appeal under 35 U.S.C. § 141. The applicant also has a non-judicial option: administrative remedies within the U.S. Patent and Trademark Office.

These administrative remedies add an important dimension to this case. The Court of Appeals adopted what it conceded was an atextual construction of § 145 expense recovery provision in order to ensure that § 145 actions were not cost-prohibitive to “small businesses and individual …

Copyright: A Powerful Tool To Protect, Preserve, And Promote Your Research, Paul Royster, Sue A. Gardner

University of Nebraska-Lincoln Libraries: Conference Presentations and Speeches

Copyright begins at “birth”

You can also register.

The holder of copyright controls the ability of others to distribute: reproductions, derivatives, translations, performance

Length of term = until you die + 70 years

Licensing and contracts

Permissions

Publisher contracts

Creative Commons licenses

Gold Open Access/APCs

Predatory journals

"Can I use this {image / quote / video clip / ...} in my {lecture / course materials / dissertation / ...}” ?

Public domain (= no copyright)

Educational use = Not Infringement

Plagiarism vs. infringement

Fair Use (1): Re-using copyrighted materials in your own work--legally

Fair use (2): The 4 Factors

Who …

The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman

All Faculty Scholarship

The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.

The lecture (as adapted for this Article) explores …

Tried And True: Fair Use Tales For The Telling, Sarah E. Mccleskey, Courtney Selby

Faculty Publications

On Thursday, March 1, 2018, the Harvard Library Office for Scholarly Communication hosted “Tried and True: Fair Use Tales for the Telling,” a one-day program celebrating Harvard’s Fifth Anniversary of Fair Use Week. Leading fair use scholars and practitioners shared their stories and engaged in lively discussion about the powerful and flexible fair use provision of the Copyright Act and its applications. Topics included treatment of the fair use doctrine in recent jurisprudence, conflicts over the use of visual works in remixes and mash-ups, academic work and social commentary, filmmaking, controlled digital lending practices in libraries, software preservation, and more. …

Tried And True: Fair Use Tales For The Telling, Sarah E. Mccleskey, Courtney L. Selby

Hofstra Law Faculty Scholarship

On Thursday, March 1, 2018, the Harvard Library Office for Scholarly Communication hosted “Tried and True: Fair Use Tales for the Telling,” a one-day program celebrating Harvard’s Fifth Anniversary of Fair Use Week. Leading fair use scholars and practitioners shared their stories and engaged in lively discussion about the powerful and flexible fair use provision of the Copyright Act and its applications. Topics included treatment of the fair use doctrine in recent jurisprudence, conflicts over the use of visual works in remixes and mash-ups, academic work and social commentary, filmmaking, controlled digital lending practices in libraries, software preservation, and more. …

The Supreme Court Bar At The Bar Of Patents, Paul Gugliuzza

Faculty Scholarship

Over the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers—whose clients are often among the largest corporations in the world—have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court’s recent case law on antitrust, arbitration, punitive damages, class actions, and more provides copious examples.

Though it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court’s agenda has changed significantly …

The Football As Intellectual Property Object, Michael J. Madison

Book Chapters

The histories of technology and culture are filled with innovations that emerged and took root by being shared widely, only to be succeeded by eras of growth framed by intellectual property. The Internet is a modern example. The football, also known as the pelota, ballon, bola, balón, and soccer ball, is another, older, and broader one. The football lies at the core of football. Intersections between the football and intellectual property law are relatively few in number, but the football supplies a focal object through which the great themes of intellectual property have shaped the game: origins; innovation and …

Attacking Innovation, Jeffrey A. Maine

Faculty Publications

Economists generally agree that innovation is important to economic growth and that government support for innovation is necessary. Historically, the U.S. government has supported innovation in a variety of ways: (1) a strong legal system for patents; (2) direct support through research performed by government agencies, grants, loans, and loan guarantees; and (3) indirect support through various tax incentives for private firms. In recent years, however, we have seen a weakening of the U.S. patent system, a decline in direct funding of research, and a weakening of tax policy tools used to encourage new innovation. These disruptive changes threaten the …

Biobanks As Knowledge Institutions, Michael J. Madison

Book Chapters

This chapter describes biobanks as institutions for collection, preservation, curation, and production of knowledge and information, in both material and immaterial forms. That characterization calls for research and comparative analysis of the broad diversity of specific biobanks, using a standardized research framework. Such a framework is identified and described here, as the knowledge commons framework. The chapter describes applications of the framework to biobanks to date and suggests directions for future research.

Does Trips Stop International Ip Free-Riders, Sam F. Halabi

Faculty Publications

Innovation policy-a relatively new phrase for an old set of top-down competitiveness approaches (e.g. "industrial policy," "science policy," "research policy," and "technology policy")-is necessarily a combination of centralized investment, structure of private-sector incentives, and public policy priorities.This combination has always been unwieldy, multivariate, and politically charged. As a result, constituencies favoring one or other approaches (e.g. longer patent protection, more funding of public universities and research infrastructure, tariff or non-tariff import measures) have lacked a unifying framework through which to analyze shared problems. In Innovation Policy Pluralism, Daniel J. Hemel and Lisa Larrimore Ouellette provide that framework. With a focus …

Attacking Innovation, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

Economists generally agree that innovation is important to economic growth and that government support for innovation is necessary. Historically, the U.S. government has supported innovation in a variety of ways: (1) a strong legal system for patents; (2) direct support through research performed by government agencies, grants, loans, and loan guarantees; and (3) indirect support through various tax incentives for private firms. In recent years, however, we have seen a weakening of the U.S. patent system, a decline in direct funding of research, and a weakening of tax policy tools used to encourage new innovation. These disruptive changes threaten the …

From Venetian Glass To Contemporary Intellectual Property: Revisiting Tailored Patent Regimes (Book Review), Ana Santos Rutschman

All Faculty Scholarship

This piece reviews Stefania Fusco's “Murano Glass Vase" and "Lessons from the Past." In Murano Glass Vase, Fusco recounts the history of the glassmaking industry in Venice, framing it as the natural experiment from which the patent system sprang into the world. Fusco emphasizes the mix of exclusionary rights and trade secrecy that formed the backbone of Venetian innovation policy against the backdrop of a heavily regulated and protectionist economy. In “Lessons from the Past,” Fusco draws on original research performed at the Venetian State Archives to further the Murano narrative by looking at how the Venetian government fueled an …

Panel 2: Art Law And Blockchain, Tonya M. Evans, Derek Fincham, Katya Fisher, Jeanne L. Schroeder

Law Faculty Scholarship

Panel presentation on Art Law and Blockchain at 2019 AELJ Spring Symposium: Digital Art & Blockchain.

The Federal Circuit As An Institution, Ryan G. Vacca

Law Faculty Scholarship

The Court of Appeals for the Federal Circuit is a unique institution. Unlike other circuit courts, the Federal Circuit’s jurisdiction is bound by subject area rather than geography, and it was created to address a unique set of problems specific to patent law. These characteristics have affected its institutional development and made the court one of the most frequently studied appellate courts. This chapter examines this development and describes the evolving qualities that have helped the Federal Circuit distinguish itself, for better or worse, as an institution.

This chapter begins with an overview of the concerns existing before creation of …

Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey

Faculty Scholarship

This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. …

A Reconsideration Of Copyright's Term, Kristelia A. García, Justin Mccrary

Publications

For well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this Article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first five to ten years following its initial release …

Law's Semantic Self-Portrait: Discerning Doctrine With Co-Citation Networks And Keywords, Joseph S. Miller

Scholarly Works

An apex court’s body of cases has an internal texture, continually augmented by recent citations to earlier, topically related cases. How can we best describe that texture? The citation network shows a path. Specifically, what past Supreme Court cases do more recent Supreme Court cases tend to cite together, as if a topical pair? Using a web of those oft-cited pairs, what noun phrases appear in a given cluster of cases more often, relative to the rate at which those phrases appear in writings more generally? To answer these questions is to map, in detail, a body of decisional law. …

Contracts Mattered As Much As Copyrights, Robert W. Gomulkiewicz

Articles

Scholars have begun to appreciate the fundamental role that contracts played in the development of copyrights. Contracts gave copyrights vitalilty. This article explores the network of book publishing contracts that formed the legal infrastructure for a pre-modern “internet” at the dawn of copyright law in Great Britain in the eighteenth century. Drawing on insights from archival research, the article shows how this network of copyright contracts advanced an important goal of copyright: the spread of ideas and information throughout all parts of society. Appreciating the historical significance of copyright contracts provides valuable context for modern debates about copyright policy. Indeed, …

Control Over Contemporary Photography: A Tangle Of Copyright, Right Of Publicity, And The First Amendment, Jessica Silbey

Faculty Scholarship

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks …

Justifying Copyright In The Age Of Digital Reproduction: The Case Of Photographers, Jessica Silbey

Faculty Scholarship

This Article explores the justification for copyright from two sources: seminal court cases and accounts from photographic authors. It takes as its premise that copyright protection requires justification, not only because creative work is frequently made and disseminated without reliance on copyright, but because, in the age of digital technology, practices of creative production and dissemination have sufficiently changed to question the existing contours of the forty-year-old Copyright Act. Why read the photographers’ stories alongside the court cases? Each present contested views of copyright’s relation to creativity. At times, the photographers’ accounts and the case law strengthen and reinforce each …

Code Revision Commission V. Public.Resource.Org And The Fight Over Copyright Protection For Annotations And Commentary, David E. Shipley

Scholarly Works

This article is about the Eleventh Circuit’s 2018 decision in Code Revision Commission v. Public.Resource.Org concerning the public edicts doctrine and holding that the State of Georgia’s copyright on the annotations, commentary and analyses in the Official Code of Georgia Annotated is invalid. About a third of the States claim copyright in the annotations to their codes so the potential impact of this decision is substantial. The U.S. Supreme Court granted Georgia’s petition for a writ of certiorari on Monday, June 24.

The article’s thesis is that the Eleventh Circuit was wrong and should be reversed. It first discusses the …

Brandeis’S I.P. Federalism: Thoughts On Erie At Eighty, Joseph S. Miller

Scholarly Works

Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference …

Derivative Works And Making Sense Of The Maxim That 'Others Are Free To Copy The Original. They Are Not Free To Copy The Copy.', David E. Shipley

Scholarly Works

This is a paper about some of the most entertaining and challenging cases in America’s copyright law jurisprudence concerning derivative works as copyrightable subject matter, and the closely related right to prepare derivative works. The cases are entertaining because they involve very familiar works of authorship, and they are challenging because the rulings are often difficult to reconcile due to the fact that the courts are grappling with copyright’s elusive originality standard as applied to derivative works as well the copyright owner’s right to prepare derivative works. Instead of attempting to say something ‘original’ about originality, my goal for this …

In The Shadow Of The Law: The Role Of Custom In Intellectual Property, Jennifer E. Rothman

All Faculty Scholarship

Custom, including industry practices and social norms, has a tremendous influence on intellectual property (“IP”) law, from affecting what happens outside of the courts in the trenches of the creative, technology, and science-based industries, to influencing how courts analyze infringement and defenses in IP cases. For decades, many scholars overlooked or dismissed the impact of custom on IP law in large part because of a belief that the dominant statutory frameworks that govern IP left little room for custom to play a role. In the last ten years, however, the landscape has shifted and more attention has been given to …