Law Commons^™

Copyright Crime And Punishment: The First Amendment's Proportionality Puzzle, Margot Kaminski

Publications

The United States is often considered to be the most speech-protective country in the world. Paradoxically, the features that have led to this reputation have created areas in which the United States is in fact less speech protective than other countries. The Supreme Court's increasing use of a categorical approach to the First Amendment has created a growing divide between the US. approach to reconciling copyright and free expression and the proportionality analysis adopted by most of the rest of the world.

In practice, the U.S. categorical approach to the First Amendment minimizes opportunities for judicial oversight of copyright. Consequently, …

“I’M A Lawyer, Not An Ethnographer, Jim”: Textual Poachers And Fair Use, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This short article, written for a festschrift for Henry Jenkins, discusses the influence of his work on media fandom in legal scholarship and advocacy around fair use.

How Many Wrongs Make A Copyright?, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Derek Bambauer’s provocative paper argues that, because the remedies available to people who suffer unconsented distribution of intimate images of themselves are insufficient, we should amend copyright law to fill the gap. Bambauer’s proposal requires significant changes to every part of copyright—what copyright seeks to encourage, who counts as an author/owner, what counts as an exclusive right, what qualifies as infringement, what suffices as a defense, and what remedies are available. These differences are not mere details. Among other things, incentivizing intimacy is not the same thing as incentivizing creativity. Bambauer’s argument that copyright is normatively empty and already full …

All Of This Has Happened Before And All Of This Will Happen Again: Innovation In Copyright Licensing, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Claims that copyright licensing can substitute for fair use have a long history. This article focuses on a new cycle of the copyright licensing debate, which has brought revised arguments in favor of universal copyright licensing. First, the new arrangements offered by large copyright owners often purport to sanction the large-scale creation of derivative works, rather than mere reproductions, which were the focus of earlier blanket licensing efforts. Second, the new licenses are often free. Rather than demanding royalties as in the past, copyright owners just want a piece of the action—along with the right to claim that unlicensed uses …

Lost Classics Of Intellectual Property Law, Michael J. Madison

Articles

Santayana wrote, “Those who cannot remember the past are condemned to repeat it.” American legal scholarship often suffers from a related sin of omission: failing to acknowledge its intellectual debts. This short piece attempts to cure one possible source of the problem, in one discipline: inadequate information about what’s worth reading among older writing. I list “lost classics” of American scholarship in intellectual property law. These are not truly “lost,” and what counts as “classic” is often in the eye of the beholder (or reader). But these works may usefully be found again, and intellectual property law scholarship would be …

On Aereo And "Avoision", Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Avoision describes conduct which seeks to exploit 'the differences between a law's goals and its self-defined limits' – a phenomenon particularly apparent in tax law. This short paper explains how the technology company Aereo utilised avoision strategies in an attempt to design its way out of liability under US copyright law. The authors argue that existing formulations encourage such strategies by applying differently depending on how the transaction is structured, resulting in a wasteful devotion of resources to hyper-technical compliance with the letter rather than meaning and purpose of the law.?

Intellectual Property Experimentalism By Way Of Competition Law, Tim Wu

Faculty Scholarship

Competition law and Intellectual Property have divergent intellectual cultures – the former more pragmatic and experimentalist; the latter influenced by natural law and vested rights. The US Supreme Court decision in Federal Trade Commission v. Actavis is an intellectual victory for the former approach, one that suggests that antitrust law can and should be used to introduce greater scrutiny of the specific consequences of intellectual property grants.

Rethinking Online Privacy In Canada: Commentary On Voltage Pictures V. John And Jane Doe, Ngozi Okidegbe

Articles

This article problematizes the use of the bona fide case standard as the legal standard for a court to order a third party Internet Service Provider ("ISP") to disclose subscriber information to a copyright owner in online piracy cases. It argues that ISP account holders have a reasonable expectation of privacy in their subscriber information. It contends that the current bona fide case standard affords a relatively low threshold of protection for Internet users’ subscriber information. The reason for which the article takes this position is that the bona fide case standard can be met solely by IP address evidence, …

Creating Around Copyright, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

It is generally understood that the copyright system constrains downstream creators by limiting their ability to use protected works in follow-on expression. Those who view the promotion of creativity as copyright’s mission usually consider this constraint to be a necessary evil at best and an unnecessary one at worst. This conventional wisdom rests on the seemingly intuitive premise that more creative choice will deliver more creativity. Yet that premise is belied by both the history of the arts and contemporary psychological research on the creative process. In fact, creativity flourishes best not under complete freedom, but rather under a moderate …