Law Commons^™

The Evolution Of The Us Drm Debate, 1987-2006, Bill D. Herman

Bill D. Herman

Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While the playing field is still quite slanted toward stronger copyright, the politics around the issue are much messier and less predictable. This study, a detailed political and legislative history of the major proposals regarding copyright and digital rights management from 1987 to 2006, illustrates how this policy dynamic has changed so drastically. In 1987, there was no organized opposition to copyright’s expansion. By 2006, however, there was a substantial coalition of …

Results-Oriented Jurisprudence: A Second Circuit Panel Meets J. D. Salinger Coming Through The Rye, Kathleen (Kate) M. O'Neill

Kathleen M. O'Neill

ABSTRACT The Second Circuit’s 2010 decision in Salinger v. Colting has been widely noticed for vacating a preliminary injunction J. D. Salinger obtained against distribution in the U.S. of Fredrik Colting’s novel, 60 YEARS LATER – COMING THROUGH THE RYE. In an opinion by Judge Guido Calabresi, the panel adopted the standard for equitable relief from eBay, Inc. v. MercExchange (U.S. 2006), overruled circuit precedent, and held that henceforth district courts must find, not presume, that irreparable harm is in fact likely before enjoining a copyright defendant’s activities. This is the first article to observe that what the Second Circuit …

Vernor V. Autodesk: Power To The...Producers?!, Elizabeth F. Wilhelm

Elizabeth F. Wilhelm

Vernor v. Autodesk, a recent case from the Ninth Circuit, threatens the very core of the first sale doctrine. Vernor radically alters the test for determining whether a transfer of a physical copy of copyrighted material is a sale or a license for the purposes of the first sale doctrine. The new test makes a transfer much more likely to be a license than a sale, possibly extending copyright protection beyond what is called for in the Copyright Act and extending the use of licensing in more media than just computer software. Many resale industries face the peril of widespread …

Insights From Psychology For Copyright's Originality Doctrine, Cameron J. Hutchison

Cameron J Hutchison

The discipline of psychology has much to offer the law of copyright. For example, determining whether or not a work is original in a legal sense implicates, and may be enriched by, the psychology of creativity. This paper is a foray into the linkage between psychological understandings of creativity and the legal standard of originality. While the methodologies and approaches to the psychological sub-discipline of creativity are many, certain frameworks are chosen which seem most relevant and probative to the task: psychoanalysis (specifically, Jungian psychoanalysis), experimental psychology (specifically, the cognitive science of creativity or “cognitive creativity”), and social psychology (specifically, …

Copyrightability Of Choreography, Shawn Patrick Nee

shawn nee

Many choreographers are unaware of the laws that protect their works. This ignorance is not unwarranted. Dance, one of the oldest forms of art, is also one of the most seldom discussed subjects in the court system. This paper aims to discuss the copyrightability of choreography and the current customs of the dance community that attempt to work around the law. This paper is written in hopes to educate choreographers on the laws that protect the works into which they put their whole lives.

A “License To Read”: The Effect Of E-Books On Publishers, Libraries, And The First Sale Doctrine, Rachel A. Berube

Rachel A Berube

E-books are rapidly displacing sales of books and transforming the way the American public understands and accesses information. Yet as e-books grow in popularity, the threat of piracy grows alongside them. Thousands of people search for pirated books online every day, and more are likely to follow as e-books become the norm rather than the exception. To displace this threat, publishers convinced Congress to abandon the first sale doctrine in favor of a market theory that allowed publishers to license, rather than sell, their copyrighted works.

Yet a decade later, Congress’ decision has not only failed to ensure publishers’ continued …

Warranting Rightful Claims, Karen E. Sandrik

Karen E. Sandrik

Damage awards for patent infringement have sky-rocketed and sparked significant debate in recent years. A part of this patent damage debate focuses on non-practicing entities, or so-called “patent trolls.” A patent troll is a patent owner that demands a royalty based on patented technology, yet does not actually make use of the technology to provide an end product or service. Patent trolls are known for their aggressive and opportunistic behavior. Their strategy is simple: create nuisance and inflict fear. Often, patent trolls employ this strategy against the buyers of goods that use the patented technology. Increasingly, those buyers are availing …

Rethinking Intangible Cultural Heritage And Expressions Of Folklore: A Lesson From The Fcc’S Localism Standards, Jon M. Garon

Jon M. Garon

This article reviews the underlying societal imperatives reflected in a policy of intangible cultural heritage and the intellectual property-like regimes being developed to protect these interests. It contrasts UNESCO efforts with more narrowly tailored efforts of WIPO and juxtaposes those approaches with the localism model developed under the FCC. While aspects of the WIPO protection efforts focusing on trademark-like and trade secret-like protections benefit the people and cultures these policies hope to serve, additional copyright-like protections will likely do more harm than good. Instead, global public policy will be far better served through emphasis on the FCC's localism attributes of …