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Articles 31 - 60 of 88
Full-Text Articles in Law
Highest Form Of Flattery - Application Of The Fair Use Defense Against Copyright Claims For Unauthorized Appropriation Of Litigation Documents, The, Davida H. Isaacs
Highest Form Of Flattery - Application Of The Fair Use Defense Against Copyright Claims For Unauthorized Appropriation Of Litigation Documents, The, Davida H. Isaacs
Missouri Law Review
Part II of the Article examines which types of legal works are entitled to the limited-time monopoly provided by copyright protection. Reviewing both the purpose of the memorandum of law and the complaint, as well as the process of drafting those documents, it becomes clear that not all such documents are the formulaic, fill-in-the-blanks works that some people may imagine. Indeed, many contain some portions which entail both original effort and creative judgment. For those documents in which the idea behind the original, creative expression may be expressed in a myriad of other ways, protection is proper. Portions of many …
Copyright On Catfish Row: Musical Borrowing, Porgy & Bess And Unfair Use, Olufunmilayo B. Arewa
Copyright On Catfish Row: Musical Borrowing, Porgy & Bess And Unfair Use, Olufunmilayo B. Arewa
ExpressO
Treatment of musical borrowing under current copyright standards is far too often inequitable. This is evident in the works of George Gershwin, who for a number of reasons was able to borrow freely from existing traditions, works and artists, copyright the works he produced that reflected such borrowings and then restrict future borrowings and reinterpretations of his works. Looking at the operation and uses of copyright in the specific instance of George Gershwin’s musical practice reflects uses of copyright in the musical arena and demonstrates some ways in which current copyright rules may not adequately contemplate actual practices of music …
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 …
War And Peace: The 34th Annual Donald C. Brace Lecture, Jessica Litman
War And Peace: The 34th Annual Donald C. Brace Lecture, Jessica Litman
Jessica Litman
No abstract provided.
How Restrictive Terms And Technologies Backfired On Sony Bmg , Jeremy F. De Beer
How Restrictive Terms And Technologies Backfired On Sony Bmg , Jeremy F. De Beer
Jeremy de Beer
This short paper addresses the issue of restrictive contractual terms and digital rights management technologies in the music industry, using the recent controversy surrounding Sony BMG Music as a case study. The issues are discussed mainly from a Canadian perspective. Part I provides an overview of the factual and technical background to this story. Part II contains an analysis of the legal consequences of Sony BMG's actions, and offers some insights as to the policy implications for consumer protection, contract and copyright laws.
The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski
The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski
Faculty Publications
This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.
The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …
The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre Mulligan, Aaron K. Perzanowski
The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre Mulligan, Aaron K. Perzanowski
Faculty Publications
Late in 2005, Sony BMG released millions of Compact Discs containing digital rights management technologies that threatened the security of its customers' computers and the integrity of the information infrastructure more broadly. This Article aims to identify the market, technological, and legal factors that appear to have led a presumably rational actor toward a strategy that in retrospect appears obviously and fundamentally misguided.
The Article first addresses the market-based rationales that likely influenced Sony BMG's deployment of these DRM systems and reveals that even the most charitable interpretation of Sony BMG's internal strategizing demonstrates a failure to adequately value security …
Digital Rights Management And The Process Of Fair Use, Timothy K. Armstrong
Digital Rights Management And The Process Of Fair Use, Timothy K. Armstrong
Faculty Articles and Other Publications
Producers of digital media works increasingly employ technological protection measures, commonly referred to as "digital rights management" (or "DRM") technologies, that prevent the works from being accessed or used except upon conditions the producers themselves specify. These technologies have come under criticism for interfering with the rights users enjoy under copyright law, including the right to engage in fair uses of the DRM-protected works. Most DRM mechanisms are not engineered to include exceptions for fair use, and user circumvention of the DRM may violate the Digital Millennium Copyright Act even if the use for which the circumvention occurs is itself …
“One For All: The Problem Of Uniformity Cost In Intellectual Property Law.” American University Law Review 55, No.4 (May 2006): 845-900., Michael W. Carroll
“One For All: The Problem Of Uniformity Cost In Intellectual Property Law.” American University Law Review 55, No.4 (May 2006): 845-900., Michael W. Carroll
American University Law Review
Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms. This Article argues that reducing uniformity cost is the central problem for intellectual …
Beyond Abstraction: The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew Sag
Beyond Abstraction: The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew Sag
Faculty Articles
Uncertainty as to the optimum extent of protection generally limits 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. The metric-driven analysis adopted in this Article demonstrates the general robustness of the market-failure approach to …
Piracy: Twelve Year-Olds, Grandmothers, And Other Good Targets For The Recording Industry's File Sharing Litigation, Matthew Sag
Piracy: Twelve Year-Olds, Grandmothers, And Other Good Targets For The Recording Industry's File Sharing Litigation, Matthew Sag
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Metro-Goldwyn-Mayer V. Grokster: Unpredictability In Digital Copyright Law, Kent Schoen
Metro-Goldwyn-Mayer V. Grokster: Unpredictability In Digital Copyright Law, Kent Schoen
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Compulsory Licenses In Peer-To-Peer File Sharing: A Workable Solution?, Michael Botein, Edward Samuels
Compulsory Licenses In Peer-To-Peer File Sharing: A Workable Solution?, Michael Botein, Edward Samuels
Articles & Chapters
No abstract provided.
Legal Protocols And Practices For Managing Copyright In Electronic Theses, Mark Perry, Paula Callan
Legal Protocols And Practices For Managing Copyright In Electronic Theses, Mark Perry, Paula Callan
Law Publications
At Queensland University of Technology (QUT) in Brisbane Australia, PhD and Masters by Research candidates are required to deposit both print and digital copies of their theses and dissertations. The fulltext of these digital theses is then made freely available online via the Australian Digital Thesis (ADT) collection. Management of copyright issues has been a major headache and workload problem for the Library: there are many parties involved in the deposit process, and the lack of a common understanding about the rights and responsibilities of the various stakeholders has made the process very complex and time consuming. The response of …
The Saga Of A Song: Authorship And Ownership In The Case Of ‘Guantanamera’, Peter L. Manuel
The Saga Of A Song: Authorship And Ownership In The Case Of ‘Guantanamera’, Peter L. Manuel
Publications and Research
No abstract provided.
The Recasting Of Copyright & Related Rights For The Knowledge Economy, P Bernt Hugenholtz, Mireille Van Eechoud, Stef J. Van Gompel, Natali Helberger, Lucie Guibault
The Recasting Of Copyright & Related Rights For The Knowledge Economy, P Bernt Hugenholtz, Mireille Van Eechoud, Stef J. Van Gompel, Natali Helberger, Lucie Guibault
Reports & Public Policy Documents
In the European Union, copyright law is increasingly a matter for the European legislator. Member states retain ever less competence to regulate intellectual property rights.
This study critically examines the 'acquis communautaire' in the field of copyright and related (neighbouring) rights, focusing on the seven copyright specific directives, from the 1991 Software directive to the 2001 Information Society Directive. It also deals with distinct issues that are on the agenda of the EU: After reviewing arguments for and against the extension of the term of protection of phonograms (sound recordings), the authors conclude there is no convincing case for extending …
Protection Of Broadcasters’ Rights, Megumi Ogawa
Protection Of Broadcasters’ Rights, Megumi Ogawa
Dr Megumi Ogawa
This book deals with a highly topical area: the protection of broadcasters' rights. It is an area in which the World Intellectual Property Organisation (WIPO) has been working to draft a new treaty and has now reached the final stage for conclusion of the treaty. The author analyses the formation and subsequent development of the legislation for protecting broadcasters' rights, and discusses the current legal issues arising out of current proposals at the international and domestic levels to upgrade that protection. The focus of the work is the international protection of broadcasters' rights as well as in the two jurisdictions …
A Feeling Of Unease About Privacy Law, Ann Bartow
A Feeling Of Unease About Privacy Law, Ann Bartow
Ann Bartow
This essay responds to Daniel Solove's recent article, A Taxonomy of Privacy. I have read many of Daniel Solove's privacy-related writings, and he has made many important scholarly contributions to the field. As with his previous works about privacy and the law, it is an interesting and substantive piece of work. Where it falls short, in my estimation, is in failing to label and categorize the very real harms of privacy invasions in an adequately compelling manner. Most commentators agree that compromising a person's privacy will chill certain behaviors and change others, but a powerful list of the reasons why …
The Master's Tools V. The Master's House: Creative Commons V. Copyright, Severine Dusollier
The Master's Tools V. The Master's House: Creative Commons V. Copyright, Severine Dusollier
Severine Dusollier
No abstract provided.
One On The Nose For Bellure: French Appellate Court Confirms That Perfumes Are Copyright Protected, Estelle Derclaye
One On The Nose For Bellure: French Appellate Court Confirms That Perfumes Are Copyright Protected, Estelle Derclaye
Estelle Derclaye
No abstract provided.
A Technological Theory Of The Arms Race, Lee B. Kovarsky
A Technological Theory Of The Arms Race, Lee B. Kovarsky
Faculty Scholarship
Although the 'technological arms race' has recently emerged as a vogue-ish piece of legal terminology, scholarship has quite conspicuously failed to explore the phenomenon systematically. What are 'technological' arms races? Why do they happen? Does the recent spike in scholarly attention actually reflect their novelty? Are they always inefficient? How do they differ from military ones? What role can legal institutions play in slowing them down? In this Article I seek to answer these questions. I argue that copyright enforcement and self-help represent substitutable tactics for regulating access to expressive assets, and that the efficacy of each tactic depends on …
Rankings, Reductionism, And Responsibility, Frank Pasquale
Rankings, Reductionism, And Responsibility, Frank Pasquale
Faculty Scholarship
After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …
Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale
Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale
Faculty Scholarship
The fair use defense in copyright law shields an intellectual commons of protected uses of copyrighted material from infringement actions. In determining whether a given use is fair, courts must assess the new use's potential effect on the market for the copyrighted work. Fair use jurisprudence too often fails to address the complementary, network, and long-range effects of new technologies on the market for copyrighted works. These effects parallel the indirect, direct, and option values of biodiversity recently recognized by environmental economists. Their sophisticated methods for valuing natural resources in tangible commons can inform legal efforts to address the intellectual …
Unravelling The Myth Around Open Source Licences - An Analysis From A Dutch And European Law Perspective, Lucie Guibault, Ot Van Daalen
Unravelling The Myth Around Open Source Licences - An Analysis From A Dutch And European Law Perspective, Lucie Guibault, Ot Van Daalen
Books
Open source software licences are based on two fundamental principles: the possibility for users to use the software for any purpose and the possibility to modify and redistribute it without prior authorisation from the initial developer. Some open source software licences, like the General Public Licence (GPL), also impose a corollary obligation on the licensee: to make the source code available to other developers. The idea behind this form of licensing is that when programmers can read, redistribute and modify the source code for a piece of software, the software evolves. A number of legal challenges need to be addressed …
Is There A New Digital Collection In Your Future?, Roger V. Skalbeck
Is There A New Digital Collection In Your Future?, Roger V. Skalbeck
Law Faculty Publications
In this article, we take a look at a handful of the bigger law-related digital collections available today. We present the core elements of each collection to give readers an idea of what is out there. In addition, we look at some broad-based questions presented by acquiring access to digital collections. Finally, briefly, we look at issues of access, ownership, copyright, interlibrary lending, catalog records, and cost.
Creative Commons And The New Intermediaries, Michael W. Carroll
Creative Commons And The New Intermediaries, Michael W. Carroll
Articles in Law Reviews & Other Academic Journals
This symposium contribution examines the disintermediating and reintermediating roles played by Creative Commons licenses on the Internet. Creative Commons licenses act as a disintermediating force because they enable end-to-end transactions in copyrighted works. The licenses have reintermediating force by enabling new services and new online communities to form around content licensed under a Creative Commons license. Intermediaries focused on the copyright dimension have begun to appear online as search engines, archives, libraries, publishers, community organizers, and educators. Moreover, the growth of machine-readable copyright licenses and the new intermediaries that they enable is part of a larger movement toward a Semantic …
The Movement For Open Access Law, Michael W. Carroll
The Movement For Open Access Law, Michael W. Carroll
Articles in Law Reviews & Other Academic Journals
My claim in this contribution to this important symposium is that the law and legal scholarship should be freely available on the Internet, and copyright law and licensing should facilitate achievement of this goal. This claim reflects the combined aims of those who support the movement for open access law. This nascent movement is a natural extension of the well-developed movement for free access to primary legal materials and the equally well-developed open access movement, which seeks to make all scholarly journal articles freely available on the Internet. Legal scholars have only general familiarity with the first movement and very …
"Infringed" Versus "Infringing": Different Interpretations Of The Word "Work" And The Effect On The Deterrence Goal Of Copyright Law, Sarah A. Zawada
"Infringed" Versus "Infringing": Different Interpretations Of The Word "Work" And The Effect On The Deterrence Goal Of Copyright Law, Sarah A. Zawada
Marquette Intellectual Property Law Review
One of the key elements that courts use to determine an appropriate statutory damage award in a copyright infringement case is the number of infringements of a copyright. How does a court determine the number of infringements when one infringing article has been printed six times in over one hundred copies of a magazine? Before the Copyright Act of 1976 went into effect, many courts adhered to the "multiplicity doctrine" and would have awarded statutory damages in the above scenarios for each of the six times that the infringing article was printed or the infringing song was played. Post-1976, however, …
Coordination, Property & Intellectual Property: An Unconventional Approach To Anticompetitive Effects & Downstream Access, F. Scott Kieff
Coordination, Property & Intellectual Property: An Unconventional Approach To Anticompetitive Effects & Downstream Access, F. Scott Kieff
GW Law Faculty Publications & Other Works
Countless high profile cases like the recent patent litigation threatening to shut down the BlackBerry® service have long drawn sharp criticism; and in response, most of the intellectual property (IP) literature argues for the use of weaker, or liability rule, enforcement as a tool for solving the problems of anticompetitive effects and downstream access while still providing sufficient rewards to IP creators. This paper takes an unconventional approach under which rewards don't matter much, but coordination does matter a great deal. The paper shows how stronger, or property rule, enforcement facilitates the good type of coordination that increases competition and …