Law Commons^™

Drawing The Boundary Between Copyright And Contract: Copyright Preemption Of Software License Terms, Maureen A. O'Rourke

Faculty Scholarship

The Copyright Act of 19761 (the "Act") sought to clarify the boundary between federal and state enforcement of proprietary rights in works of authorship by specifically addressing federal preemption of state law causes of action in § 301 of the Act. Unfortunately, § 301 is not a model of clarity, and its legislative history is also cloudy. Consequently, the courts have had some difficulty in formulating consistent decisional guidelines in preemption cases. This difficulty has perhaps been most evident in cases in which the particular preemption issue is based not on a state statute but on state enforcement of private …

Assertive Modesty: An Economics Of Intangibles, Wendy J. Gordon

Faculty Scholarship

At the center of our Symposium stand two papers: "A Manifesto Concerning the Legal Protection of Computer Programs" (Manifesto) and "Legal Hybrids: Between the Patent and Copyright Paradigms" (Legal Hybrids). Both are stimulating. Both are lengthy. As a result, my primary role is that of a guide: this Comment will summarize the authors' proposals, analyze certain aspects in greater detail, and outline their explicit and implicit methodologies. Part I of the Comment describes the papers' positions and methodologies. Part II highlights some of the papers' many contributions to the literature, and offers some other evaluative observations.

Proprietary Rights In Digital Data, Maureen A. O'Rourke

Faculty Scholarship

The Clinton Administration in 1993 announced its intention to develop a National ; Information Infrastructure (NII), an "information superhighway" designed to make electronic digital information more widely available and accessible to the public. This announcement has . ~ stimulated a national debate over how best to define and enforce an appropriate set of proprietary rights in digital information. That debate should begin with an analysis and assessment of the current state of the law of digital data. While that law resembles a moving target, general trends may be identified. The current framework provides the background against which NIL may be …

"Arising Under" Jurisdiction And The Copyright Laws, Amy B. Cohen

Faculty Scholarship

Does a claim arise under the copyright laws when a critical allegation is that a party's use of a copyrighted work is unpermitted and infringing because such use was limited by the terms of a contract? The federal courts of appeals have confronted this question in a number of recent cases. Many have concluded that federal jurisdiction exists, reversing district court judgments of dismissal for lack of subject matter jurisdiction.

Despite these repeated attempts to resolve the matter, however, this question continues to confound the courts, which lack a clear approach to defining when a claim arises under the copyright …

Reality As Artifact: From Feist To Fair Use, Wendy J. Gordon

Faculty Scholarship

Lawyers more than most people should be aware that what language calls "facts" are not necessarily equivalent to things that exist in the world. After all, when in ordinary conversation someone says "it's a fact that X happened," the speaker usually means, "I believe the thing I describe has happened in the world." But when a litigator presents something as a "fact," she often means only that a good faith argument can be made on behalf of its existence. Two sets of factfinders can look at the same event and come to diametrically opposed conclusions-each of which is binding, but …

Asymmetric Market Failure And Prisoner's Dilemma In Intellectual Property, Wendy J. Gordon

Faculty Scholarship

When competitors engage in unrestrained copying of each others' intangible products, the structure can resemble a prisoner's dilemma in which free choice leads to unnecessarily low individual payoffs and low social welfare. There are many ways to avoid these low payoffs, such as contract enforcement, direct regulation of copying behavior through IP, and direct government subsidies. All of these modes alter the payoff pattern away from prisoner's dilemma.

When should lawmakers place copyright law or other IP law among the prime options to consider?

Because copyright, patent, misappropriation and the like all work through private-property markets, one key is to …

Intellectual Property Protection Or Protectionism? Declaratory Judgment Use By Patent Owners Against Prospective Infringers, Lawrence M. Sung

Faculty Scholarship

No abstract provided.

Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship, Wendy J. Gordon

Faculty Scholarship

For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from scholarly and case law developments in other areas. There were exceptions, of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zechariah Chafee, Jr. and Judge Learned Hand brought a wealth of learning and broad perspective to copyright. But by and large copyright looked only to itself for guidance.

An Inquiry Into The Merits Of Copyright: The Challenges Of Consistency, Consent And Encouragement Theory, Wendy J. Gordon

Faculty Scholarship

Hostility to copyright has a long and honorable history. In the nineteenth century, for example, Lord Macaulay argued that while copyright might be necessary to ensure a "supply of good books," the monopoly that it imposed was at best a necessary evil.

"For the sake of the good we must submit to the evil; but the evil ought
not to last a day longer than is necessary for the purpose of securing the good."

A number of studies critical of intellectual property followed in our century. The most well known is probably the economically oriented 1970 study by Stephen Breyer …

Masking Copyright Decisionmaking: The Meaninglessness Of Substantial Similarity, Amy B. Cohen

Faculty Scholarship

Traditionally courts have place great weight on the issue of substantial similarity in adjudicating copyright infringement lawsuits. Once success is proven, a court will usually find infringement if the works are viscerally determined to be substantially similar. This Article criticizes the traditional approach as failing adequately to distinguish copying from misappropriation, failing adequately to distinguish ideas from expression, failing to provide adequate guidelines for determining misappropriation, and as overlapping with fair use determinations. The Article also criticizes variations on the traditional approach imposed by the Third and Ninth Circuit Courts of Appeal as not remedying the traditional approach's fundamental shortcomings. …

Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors, Wendy J. Gordon

Faculty Scholarship

In the recent and much publicized Universal City Studios, Inc. v. Sony Corp. of America (Betamax) case, the Court of Appeals for the Ninth Circuit held that persons who make videotapes of copyrighted television programs in the privacy of their homes should be considered to be copyright infringers. Basic to the court's reasoning was a misunderstanding of the "fair use" doctrine. Called "the most troublesome [doctrine] in the whole law of copyright," "fair use" renders noninfringing certain uses of copyrighted material that might technically violate the statute, but which do not violate the statute's basic purposes.