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Full-Text Articles in Law
A Natural Right To Copy, Glynn Lunney
A Natural Right To Copy, Glynn Lunney
Faculty Scholarship
In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the "no-harm" principle of John Locke to justify copyright as natural right and then used his “enough-and-as-good” proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth …
Death Of Copyright, Paul Gugliuzza
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 …
A Tale Of Two Copyrights, Glynn Lunney
A Tale Of Two Copyrights, Glynn Lunney
Faculty Scholarship
This essay explores two possible copyright regimes. The first uses costless and perfect price discrimination to enable copyright owners to capture the full market or exchange value of their work. The second also uses costless and perfect price discrimination, but allows copyright owners to capture only the persuasion cost for authoring and distributing a work. We can call the first regime, costless copyright maximalism, and the second, costless copyright minimalism. The choice between these two regimes is primarily distributional: Should we design copyright to allocate the surplus associated with copyrighted works to copyright owners or to copyright consumers? This essay …
Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey
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. …
Control Over Contemporary Photography: A Tangle Of Copyright, Right Of Publicity, And The First Amendment, Jessica Silbey
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
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 …
Embedding Content Or Interring Copyright: Does The Internet Need The "Server Rule"?, Jane C. Ginsburg, Luke Ali Budiardjo
Embedding Content Or Interring Copyright: Does The Internet Need The "Server Rule"?, Jane C. Ginsburg, Luke Ali Budiardjo
Faculty Scholarship
The “server rule” holds that online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work. As a result, the rule shields a vast array of online activities from claims of direct copyright infringement, effectively exempting those activities from the reach of the Copyright Act. While the server rule has enjoyed relatively consistent adherence since its adoption in 2007, some courts have recently suggested a departure from that precedent, noting the doctrinal and statutory inconsistencies underlying …
Authors And Machines, Jane C. Ginsburg, Luke Ali Budiardjo
Authors And Machines, Jane C. Ginsburg, Luke Ali Budiardjo
Faculty Scholarship
Machines, by providing the means of mass production of works of authorship, engendered copyright law. Throughout history, the emergence of new technologies tested the concept of authorship, and courts in response endeavored to clarify copyright’s foundational principles. Today, developments in computer science have created a new form of machine, the “artificially intelligent” (AI) system apparently endowed with “computational creativity.” AI systems introduce challenging variations on the perennial question of what makes one an “author” in copyright law: Is the creator of a generative program automatically the author of the works her process begets, even if she cannot anticipate the contents …
The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog
The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog
Faculty Scholarship
It’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic …
Price Discrimination & Intellectual Property, Michael J. Meurer, Ben Depoorter
Price Discrimination & Intellectual Property, Michael J. Meurer, Ben Depoorter
Faculty Scholarship
This chapter reviews the law and economics literature on intellectual property law and price discrimination. We introduce legal scholars to the wide range of techniques used by intellectual property owners to practice price discrimination; in many cases the link between commercial practice and price discrimination may not be apparent to non-economists. We introduce economists to the many facets of intellectual property law that influence the profitability and practice of price discrimination. The law in this area has complex effects on customer sorting and arbitrage. Intellectual property law offers fertile ground for analysis of policies that facilitate or discourage price discrimination. …
Existential Copyright And Professional Photography, Jessica Silbey, Eva Subotnik, Peter Dicola
Existential Copyright And Professional Photography, Jessica Silbey, Eva Subotnik, Peter Dicola
Faculty Scholarship
Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual …
Copyright’S Memory Hole, Jessica Silbey, Eric Goldman
Copyright’S Memory Hole, Jessica Silbey, Eric Goldman
Faculty Scholarship
There is growing interest in using copyright to protect the privacy and reputation of people depicted in copyrighted works. This pressure is driven by heightened concerns about privacy and reputation on the Internet, plus copyright’s plaintiff-favorable attributes compared to traditional privacy and reputation torts.
The Constitution authorizes copyright law because its exclusive rights benefit society by increasing our knowledge. Counterproductively, to advance privacy and reputation interests, copyright law is being misdeployed to suppress socially valuable works. This results in “memory holes” in society’s knowledge, analogous to those discussed in George Orwell’s dystopian novel 1984.
By referencing Constitutional considerations, the Article …