Law Commons^™

The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan

Faculty Scholarship

When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to …

Aesthetic Nondiscrimination & Fair Use, Brian L. Frye

Law Faculty Scholarly Articles

While courts do not consider the aesthetic value of an element of a work in determining whether it is protected by copyright, they do consider the aesthetic value of the use of a copyrighted element of a work in determining whether that use is a fair use. This asymmetry improperly and inefficiently discriminates in favor of copyright protection and against fair use. Moreover, the fair use “transformativeness” inquiry discriminates against marginalized authors, because courts are less likely to appreciate the aesthetic value of their uses of copyrighted works.

Courts should apply the aesthetic nondiscrimination principle to both copyright and fair …

Authenticity Key To Success In Life And In Legal Information, Susan Drisko Zago

Law Faculty Scholarship

[Excerpt] "Authenticity is defined as something that is not false or an imitation. Savvy consumers pay a premium for an authentic product and treat with suspicion a product that does not ring true.

We have a system of trademark and copyright protections that protect a company’s intellectual property rights and brands and consumer protections to protect the consumer from counterfeit and unsafe products. Now, there is model legislation that will provide a systematic way to protect, preserve and provide better electronic access to the bread and butter of our legal profession: our official state legal documents."

Copyright In A Nutshell For Found Footage Filmmakers, Brian L. Frye

Law Faculty Popular Media

Found footage is an existing motion picture that is used as an element of a new motion picture. Found footage filmmaking dates back to the origins of cinema. Filmmakers are practical and frugal, and happy to reuse materials when they can. But found footage filmmaking gradually developed into a rough genre of films that included documentaries, parodies, and collages. And found footage became a familiar element of many other genres, which used found footage to illustrate a historical point or evoke an aesthetic response.

It can be difficult to determine whether found footage is protected by copyright, who owns the …

Lost In Translation: How Practical Considerations In Kirtsaeng Demand International Exhaustion In Patent Law, Dustin M. Knight

Law Student Publications

This comment's purpose is to explore whether the principles announced in Kirtsaeng should apply to the patent exhaustion doctrine. Part I begins by examining the history of patent exhaustion jurisprudence. It also introduces the competing theories international exhaustion and territorial exhaustion. Part II analyzes the effect of the recent Supreme Court decision in Kirtsaeng on the exhaustion doctrine in copyright. Part III contends that exhaustion doctrine polices the same practical problems in copyright as it does in patent law. Finally, the conclusion argues for an extension of the Kirtsaeng holding to the patent exhaustion doctrine.

Bargaining Failure And Failure To Bargain, Michael J. Meurer

Faculty Scholarship

In this talk I want to do four things. First, I’m going to present a motivating example, and second I will discuss what causes IP litigation. I want to distinguish between bargaining failure and failure to bargain ex ante. This is the descriptive portion of my project, and the message is really pretty simple. In law and economics, we think a lot about why people who have a dispute, who sit cross from each other at a table, fail to do the efficient thing, which is to stay out of the courtroom and avoid incurring litigation costs. Law and economics …

Redefining The Rico Statute: Potential Avenues For Improvement, David Scouten

Senior Honors Theses

The civil application of the Racketeering Influenced and Corrupt Organizations Act (RICO) has been misapplied by the lower courts, but the statute can be improved by incorporating elements that will make the statute a better tool for justice. It is evident from examining the procedural limitations of the statute and important case law that the securities fraud gap, terrorism financing, and difficulties for indirect victims are three critical subjects that need to be addressed by enhancing RICO. Flaws and shortcomings of the RICO statute have led to inconsistencies in court rulings. The expansive language of RICO can be limited to …

The Knottiest Problem: Unraveling Arising Under Jurisdiction In Copyright Cases, Zoe Niesel, Bethany A. Corbin

Faculty Articles

No abstract provided.

Scenes From The Copyright Office, Brian L. Frye

Law Faculty Scholarly Articles

This essay uses a series of vignettes drawn from Billy Joel’s career to describe his encounters with copyright law. It begins by examining the ownership of the copyright in Joel’s songs. It continues by considering the authorship of Joel’s songs, and it concludes by evaluating certain infringement actions filed against Joel. This Essay observes that Joel’s encounters with copyright law were confusing and frustrating, but also quite typical. The banality of his experiences captures the uncertainty and incoherence of copyright doctrine.

Some Key Things U.S. Entrepreneurs Need To Know About The Law And Lawyers, Lawrence J. Trautman, Anthony J. Luppino, Malika Simmons

Faculty Works

New business formation is a powerful economic engine that creates jobs. Diverse legal issues are encountered as a start-up entity approaches formation, initial capitalization and fundraising, arrangements with employees and independent contractors, and relationships with other third parties. The endeavors of a typical start-up in the United States will likely implicate many of the following areas of law: intellectual property; business organizations; tax laws; employment and labor laws; securities regulation; contracts and licensing agreements; commercial sales; debtor-creditor relations; real estate law; health and safety laws/codes; permits and licenses; environmental protection; industry specific regulatory laws and approval processes; tort/personal injury, products …

District Court: Cambridge Univ. Pr. Et Al. V. Becker Et Al.: Ruling On Remand (2016), Orinda Evans

Georgia State University Copyright Lawsuit

No abstract provided.

The Law Of The Platform, Orly Lobel

Faculty Scholarship

New digital platform companies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. Unsurprisingly then, the platform economy defies conventional regulatory theory. Millions of people are becoming part-time entrepreneurs, disrupting established business models and entrenched market interests, challenging regulated industries, and turning ideas about consumption, work, risk, and ownership on their head. Paradoxically, as the digital platform economy becomes more established, we are also at an all-time high in regulatory permitting, licensing, and protection. The battle over law in the platform is therefore both conceptual and highly practical. …

You're Suing Me? Best Fair Use & Copyright Practices, Stephanie Brenenson, Sarah J. Hammill, Valerie L. Boulos, Jamie Rogers, Stephen Thomson Moore, Brandie Thomas

Works of the FIU Libraries

Do you teach? Do you publish? Do you know how to exercise your fair use rights?

This panel discussion focuses on fair use and copyright practices.

Panels include:

The Basics – Get a general overview of fair use and methods for making fair use decisions, including the four factors and best practices.

Blackboard Behavior! - Learn about best practices when building course content and assignments in Blackboard. Find out about the TEACH Act and how it impacts teaching online.

Good Intentions: Fair Use, Images, and ETDs – Learn about the fair use guidelines pertaining to the use of images in …

University Of New England Library Services Fair Use Checklist, Une Library Services

Library Services Faculty Publications

UNE librarians created this tool to help UNE community members determine whether their activities are within the limits of fair use under Section 107 of the U.S. Copyright Act.

Copyrightx: Harvard University Law School, Sue A. Gardner

University of Nebraska-Lincoln Libraries: Conference Presentations and Speeches

Slides of a talk about the 2014 iteration of the CopyrightX course administered by Professor William Fisher of Harvard University Law School.

Copyright For Publishing, Paul Royster

University of Nebraska-Lincoln Libraries: Conference Presentations and Speeches

What does copyright cover? What is public domain? What is and is not copyrightable and in copyright? How to get copyright?

Two Comparative Perspectives On Copyright's Past And Future In The Digital Age, Timothy K. Armstrong

Faculty Articles and Other Publications

A review of two recent scholarly books on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014), and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014). Both books are meticulously researched and carefully written, and each makes an excellent addition to the literature on copyright. Contrasting both titles in this joint review, however, helps to reveal a few respects in which each work is incomplete; indeed, at times each book reads as a critique of the other.

Baldwin's The Copyright Wars argues that modern debates over …

A Jukebox For Patents: Can Patent Licensing Of Incremental Inventions Be Controlled By Compulsory Licensing?, Ralph D. Clifford

Faculty Publications

The patent system today no longer follows the classic understanding of how it is designed to work. In theory, to avoid infringement, a product developer searches the database of issued patents looking for those that might read onto the product being developed. If such patents are found, the developer can approach the patent holder for a license, can attempt to design around the claims, or can abandon the project. With many hundreds of thousands of patents being issued annually—a rate of issuance almost an order of magnitude larger than a hundred years ago—it is now a practical impossibility to search …

Top Tens In 2015: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The Supreme Court significantly affected the dynamics of patent litigation, holding that patent claim interpretation was not always reviewed de novo and that good faith belief that a patent was invalid was not a defense to infringement. The Federal Circuit potentially changed the approach to patent claim interpretation, holding that claims could be interpreted in light of the written description of the invention, even where the claim was not ambiguous. The Federal Circuit also addressed inducement of patent infringement, holding that it was not inducement to suggest consulting a physician who would likely prescribe an infringing treatment. The Federal Circuit …

Ip Litigation In United States District Courts: 1994 To 2014, Matthew Sag

Faculty Publications & Other Works

This Article undertakes a broad-based empirical review of intellectual property (“IP”) litigation in U.S. federal district courts from 1994 to 2014. Unlike the prior literature, this study analyzes federal copyright, patent, and trademark litigation trends as a unified whole. It undertakes a systematic analysis of the records of more than 190,000 cases filed in federal courts and examines the subject matter, geographical, and temporal variation within federal IP litigation over the last two decades.

This Article analyzes changes in the distribution of IP litigation over time and their regional distribution. The key findings of this Article stem from an attempt …

Branding Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

Branding is important not only to businesses,but also to the economy. The intellectual property laws and tax laws should thus further the legitimate goals of encouraging and protecting brand investments while maintaining a sound tax base. Intellectual property protections for branding depend on advertisement and enforcement, both of which demand significant amounts of private investment by firms. Although one would expect similar tax treatments of both categories of investment, the categories are actually treated as vastly different for federal income tax purposes. Additionally, tax distinctions also exist within each category. The result is that some branding investments are expensed and …

Intellectual Freedom For Authors: A Very Brief Overview Of United States Copyright, Sue Ann Gardner

Copyright, Fair Use, Scholarly Communication, etc.

VIII: Intellectual Freedom for Authors: A Very Brief Overview of United States Copyright

What Can Be Copyrighted and What Rights Are Conferred?

Who Owns Copyright in a Work?

Copyright Formalities

Transfer of Copyright

Length of Term of Copyright

Permissions and Licensing

Fair Use

Consequences of Infringement

A Theory Of Copyright Authorship, Christopher Buccafusco

Faculty Scholarship

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner …

Authorship And The Boundaries Of Copyright: Ideas, Expressions, And Functions In Yoga, Choreography, And Other Works, Christopher Buccafusco

Faculty Scholarship

This essay uses the Ninth Circuit’s opinion in Bikram’s Yoga College of India v. Evolation Yoga as an opportunity to analyze the nature of copyrightable authorship and the mechanisms that the law uses to screen out uncopyrightable content from otherwise copyrightable works. I argue that although the court likely reached the right result in Bikram, it did so in a confused and poorly supported manner. The court misunderstood the nature of the idea/expression distinction, the role of section 102(b), and the appropriate mechanism for screening out functional features of works. These aspects of the court’s opinion are widespread in copyright …

Unh School Of Law Ip Library: 20th Anniversary Reflection On The Only Academic Ip Library In The United States, Jon R. Cavicchi

Law Faculty Scholarship

[Excerpt] The UNH School of Law Intellectual Property Library celebrates its twentieth anniversary this year. It is a fortuitous time for this look back and for strategic considerations for the future. This anniversary comes at a time in the history of legal education when conditions over the past few years have intensified the analysis of mission and resources for law school libraries. This article is a retrospective review of the history and dynamics surrounding the founding and first twenty years of growth. It is also an analysis of the future growth and mission of the IP Library during times that …

If It’S Broke, Fix It: Fixing Fixation, Megan M. Carpenter

Law Faculty Scholarship

The fixation requirement, once an intended instrument for added flexibility in copyrightability, has become an unworkable standard under modern copyright law. The last twenty-five years have witnessed a dramatic expansion in creative media. Developments in both digital media and contemporary art have challenged what it means to be fixed, and cases dealing with these works reveal how inapposite current interpretations of fixation are for these forms of expression. Yet, getting fixation “right” is important, for it is often the juridical threshold over which idea becomes expression. Thus, we must enable fixation to help define the parameters of creative expression while …

Intellectual Property Law Hybridization, Clark D. Asay

Faculty Scholarship

Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. The conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between patent and copyright laws finds some support in the Constitution’s Intellectual Property Clause, and Congress, courts, and scholars have largely perpetuated it in enacting, interpreting, and analyzing copyright and patent laws over time.

In this Article, I argue that it is time to partially breach this traditional divide. …

The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, David Fagundes

Faculty Scholarship

Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no economic harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-economic harms tend to stifle rather than encourage creative production. While much scholarship has critiqued copyright’s economic theory from the perspective of authors’ incentives to create, ours is the first to explore this issue from the perspective of owners’ motivations to sue for infringement. We turn to moral psychology, and in particular to moral …

Copyright And Tort As Mirror Models: On Not Mistaking For The Right Hand What The Left Hand Is Doing, Wendy J. Gordon

Faculty Scholarship

No abstract provided.

Fairer Uses, Jessica Silbey

Faculty Scholarship

A response to Professor Joseph Liu’s paper on Fair Use, Notice Failure, and the Limits of Copyright as Property, this essay challenges Professor Liu to go even farther in his analysis and protection of the everyday audience of copyright works. In describing and analyzing what I term “fairer uses” on the basis of qualitative data from interviews of artists and authors who make and rely on copyrighted works for their own creativity and professional well-being, I support Professor Liu’s advocacy for maintaining “fuzzy boundaries” of fair use. Based on evidence from grounded practice of professional creators, their expansive application …