Law Commons^™

Dealing With Old Father William, Or Moving From Constitutional Text To Constitutional Doctrine: Progress Clause Review Of The Copyright Term Extension Act, Malla Pollack

Malla Pollack

The author suggests a textual approach to the choice of review standards for statutes enacted purusant to the so-called Intellectual Property Clause, which is more properly named the Progress Clause. Turning to text of the Constitution s relatively unproblematic because the Progress Clause contains unusually detailed constitutional text. Furthermore, what little the Court has stated about the fundamental goals of the Clause matches the author's reading of its text. Any approach based on the drafting or ratification discussions stumbles on the thinness of the record, as well as the record's possible unreliability. The text supports a standard of review higher …

Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law, Daniel J. Gervais

Daniel J Gervais

he 1991 U.S. Supreme Court decision in Feist Publications v. Rural Telephone Service Company, Inc. delivered was hailed both as a landmark decision and a legal bomb. Was Feist so original as to deserve all the attention? After all, it did not establish a new originality paradigm as such but only ended a long division among federal circuits concerning the protection under copyright of factual compilations. A number of circuits had adopted a test similar to the one articulated in Feist (i.e., based on creative selection), while others required only evidence of labor, a test known as sweat of the …

Digital Millennium Copyright Act: A True And Illustrative Dmca Case Study, Raleigh Muns

Raleigh Muns

Disruptive Technology And Common Law Lawmaking: A Brief Analysis Of A&M Records, Inc. V. Napster, Inc., Michael W. Carroll

Michael W. Carroll

This symposium Article analyzes the Ninth Circuit's decision in A&M Records, Inc. v. Napster, Inc. After setting the stage with a comparison to the rise of cable television, and a description of the technologies underpinning Napster's service, the Article analyzes the doctrinal developments in the Ninth Circuit's opinion. The principal analytical points are that: (1) the court's definitions of "sampling" and "space-shifting" were overbroad, leading to oversimple fair use analysis; (2) the court's treatment of vicarious liablility for copyright infringement is doctrinally incoherent because it suggests that liability depends on whether a third party has "turn[ed] a blind eye" toward …

Eldred V. Ashcroft And Why The U.S. Supreme Court Should Reject, Roger P. Foley

Roger P. Foley

Among the most important issues facing the entertainment industry today is the scope and level of protections available to the industry for its works. Chief amongst those protections are the federal copyright laws. These laws are now under considerable scrutiny as the United States Supreme Court decides whether or not to strike down as unconstitutional a major extension of the terms of protection provided for in those laws. As will be discussed, it is by no means accepted truth that the extension of the term of protections of the copyright laws is beneficial for the entertainment industry or even for …

When Is Fair Use Fair?: A Comparison Of E.U. And U.S. Intellectual Property Law, Eric Engle

Eric A. Engle

Analyzes whether U.S. exception to copyright for fair use of materials is consistent with WTO TRIPS. Concludes it is based on economic argument.

Copyright, E-Commerce And The World Wide Web, Daniel J. Gervais

Daniel J Gervais

This early (2001) piece on the impact of the online environment on the significance and enforcement of copyright is now available online. It begins by defining concepts that were new at the time, such as Digital Rights Management (DRM) and Electronic Copyright management Systems (ECMS), and the changes in business models, both those already taking place and those that could be expected to happen. It then explores the notions of negative and positive licensing and makes the point, which future events would seem to bear out, that both right holders and users do better when right holders focus on maximizing …