Law Commons^™

A Positive Externalities Approach To Copyright Law: Theory And Application, Jeffrey L. Harrison

Jeffrey L Harrison

The basic goal of copyright law is, at a general level, fairly well understood, yet the law itself seems untethered to any consistent analytical approach designed to achieve that goal. This Article has two goals. The first is to explain in some detail what copyright law might look like if it reflected economic reasoning. The second is to put to the test the question of whether copyright law is as far out of sync with economic guidelines as White-Smith Music and Eldred suggest. In order to understand the economic approach and the inconsistency of copyright law, as well as the …

Trademark Law And Status Signaling: Tattoos For The Privileged, Jeffrey L. Harrison

Jeffrey L Harrison

The motivations for buying a good or service are highly complex. At the most basic level, people buy goods because of what the goods do or because of the aesthetic elements they embody. More technically, buyers derive utility from the "functional" quality of these goods. Another motivation relates to what the goods "say" about the buyer. Here, the good is a signaling device. Signaling is not new, of course, and can indicate anything from social class to political leanings. This Essay addresses the issue of whether it should be public policy to subsidize this type of person-to-person status signaling. This …

Reinventing Copyright And Patent, Abraham Bell, Gideon Parchomovsky

Michigan Law Review

Intellectual property systems all over the world are modeled on a one-size-fitsall principle. However important or unimportant, inventions and original works receive the same scope of protection, for the same period of time, backed by the same variety of legal remedies. Essentially, all intellectual property is equal under the law. This equality comes at a heavy price, however. The equality principle gives all creators access to the same remedies, even when those remedies create perverse litigation incentives. Moreover, society overpays for innovation through more monopoly losses than are strictly necessary to incentivize production. In this Article, we propose a solution …

Don't Tread On Me: The Need For An Alternate Dispute Resolution Process For The Creators And Uploaders Of User-Generated Content, Scott A. Tarbell

Pepperdine Dispute Resolution Law Journal

This article analyzes the current position that UGC site users find themselves in relation to their ability to dispute copyright infringement claims. Part II discusses the introduction and purpose of the DMCA along with the statutory provisions and case law relevant to the subject. Part III covers the underlying issues encumbering the current appeals process for the OSPs as dictated under the DMCA, and why changes are required. Part IV advocates for a new dispute process, one in favor of online alternative dispute resolution (OADR), and explains how this new paradigm would produce more equitable results for UGC site users. …

A Survey Of State Copyright Law, Tammy W. Cowart, Pam Gershuny, Gwenda Bennett Hawk

Accounting, Finance & Business Law Faculty Publications and Presentations

This paper examines the persistence of state copyright laws, and the extent to which they still exist in light of federal copyright law to further understand how those state laws will be affected by possible preemption. Specifically, the scheme and penalty of unauthorized duplication and bootlegging statutes are examined from all fifty states. We further address areas where the Copyright Act would preempt these state laws.

Monge V. Maya Magazines, Inc.: The Demand For Celebrity Gossip And The Doctrine Of Transformative Use In The Ninth Circuit, Alyce W. Foshee

Golden Gate University Law Review

Despite the decreased circulation of traditional newspapers, celebrity gossip magazines continue to flourish in the publishing world. In June 2012, People Magazine reached a paid circulation of over 3.5 million copies, putting the publication at number nine on the top U.S. consumer magazines list for the first half of the year. Public demand for celebrity news and gossip is unwavering. With this popularity come problems - especially for those celebrities whose images end up supplying that high demand. In Monge v. Maya Magazines, Inc., the Ninth Circuit presided over a copyright battle between celebrities and a gossip magazine regarding fair …

Copyright Law, Privacy, And Illegal File Sharing: Defeating A Defendant's Claims Of Privacy Invasion, Daniel Gomez-Sanchez

Touro Law Review

No abstract provided.

The Audience In Intellectual Property Infringement, Jeanne C. Fromer, Mark A. Lemley

Michigan Law Review

Every intellectual property (“IP”) right has its own definition of infringement. In this Article, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP infringement. That patent law, for example, focuses on an expert audience while trademark looks to a consumer audience explains many of the differences in how patent and trademark cases are decided. Expert audiences are likely to evaluate infringement based on the technical similarity between the plaintiff’s and defendant’s works. …

From Vault To Honesty Box: Australian Authors And The Changing Face Of Copyright, Francina Cantatore

Francina Cantatore

Copyright in written work is facing unprecedented challenges in the digital era. The changing face of copyright requires a re-evaluation of the existing norms and theories of copyright as an inanimate phenomenon that is reliant on humans for its adaptations. This article examines authors’ responses to these developments in the context of the philosophical theories underpinning copyright law, current Australian legislative and judicial considerations, and the impact of e-publishing on traditional perceptions of copyright protection. In particular, the article incorporates findings from a research study conducted with Australian authors on their perceptions of the value and meaning of copyright and …

The Digital Millennium Copyright Act And The Clash Between Authors And Innovators: The Need For A Legislative Amendment To The Safe Harbor Provisions, Jessica Di Palma

Loyola of Los Angeles Law Review

The Digital Millennium Copyright Act of 1998 (DMCA) was enacted with the goal of bringing copyright law into the digital age. Through the DMCA, Congress attempted to balance the interests of what were considered to be the traditional copyright holders—musicians, film studios, record companies, and television networks—with those of Internet Service Providers (ISPs) by combining key digital copyright protections with a series of “safe harbor” protections for qualifying ISPs. Over the past decade, conflicting and convoluted judicial interpretations of the safe harbor provisions have resulted in unpredictable legal standards and a deep divide between traditional media and new technology. This …

Technology Drives The Law: A Foreword To Trends And Issues In Techology & The Law, Ralph D. Clifford

University of Massachusetts Law Review

Technology has always been a motivating force of change in the law. The creation of new machines and development of novel methods of achieving goals force the law to adapt with new and responsive rules. This is particularly true whenever a new technology transforms society. Whether it is increasing industrialization or computerization, pre-existing legal concepts rarely survive the transition unaltered - new prescriptions are announced while old ones disappear.

Determining The Location Of Injury For New York's Long Arm Statute In An Infringement Claim, Stefan Josephs

Touro Law Review

No abstract provided.

The Conceits Of Our Legal Imagination: Legal Fictions And The Concept Of Deemed Authorship, Alina Ng

Alina Ng

Describing legal fictions as embedded nuggets of information about social reality in the law is not as contradictory as it may sound. Legal fictions reveal important aspects of human society that may not be understood but for the curious metaphors that these fictions portray. The use of legal fictions may, however, obscure important information or fundamental questions about law and its society as it commits legal institutions to set outcomes. These fictions become institutionalized without clear understanding of their function. When that happens, fallacious assumptions about human behavior and social relationships transform into binding principles that set the course for …

Attack Of The Clones: Copyright Protection For Video Game Developers, Brian Casillas

Loyola of Los Angeles Entertainment Law Review

This comment focuses on the case Tetris Holding, LLC v. Xio Interactive, Inc. and uses it to explore how video game developers’ original innovations are protected under copyright law so as to fully restrict those wishing to “clone” these innovations for their own financial gain. The comment begins by outlining relevant copyright concepts and statutes, using case examples, and detailing the analytical framework courts use to evaluate claims asserted under copyright law. It then discusses the accommodations by both the video game industry as well as online marketplaces in order to protect original content from being cloned. After evaluating these …

Public Shaming In The Digital Age: Are Criminal Laws The Most Effective Means To Regulate Revenge Porn?, Luke Fiedler

Loyola of Los Angeles Entertainment Law Review

This Note attempts to develop an initial framework for best regulating the growing trend of online harassment known as “revenge porn.” Revenge porn is the act of widely disseminating via the Internet nude or otherwise explicit photos or videos that were produced and exchanged while two individuals shared an intimate encounter or relationship. Oftentimes revenge porn “attacks” occur out of spite or scorn felt by one of the individuals as a way to publically humiliate the other individual. This Note argues for copyright law as the ideal area of the law from which revenge porn can and should be regulated. …

A Pre-History Of Performing Rights In Anglo-American Copyright Law, Derek Miller

Studio for Law and Culture

Statutes creating performing rights--the subset of copyright that secures the right to perform a work – first appeared in the United Kingdom in 1833, and in the United States in 1856. As I explore in the larger project of which this paper forms a part, during the decades that followed these laws’ passage, jurists and theater-makers defined performance as a marketable commodity, what I call the performance-commodity. They did so by negotiating between performance’s aesthetic value and its economic value. This commodity-centered approach was absent from most copyright lawsuits about performance before 1833 and 1856 because jurists and litigants did …

A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance

Michigan Telecommunications & Technology Law Review

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a …

Does Cariou V. Prince Represent The Apogee Or Burn-Out Of Transformativeness In Fair Use Jurisprudence? A Plea For A Neo-Traditional Approach, Kim J. Landsman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Copyright Cowboys: Bringing Online Television To The Digital Frontier, Daniela Cassorla

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

“You Never Got Me Down, Delay”: Petrella V. Metro-Goldwyn-Mayer, Inc. And The Availability Of Laches In Copyright Infringement Claims Brought Within The Statute Of Limitations, Daniel Sheerin

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Faith And Martyrdom: The Tragedy Of Aaron Swartz, Austin C. Murnane

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Tarantino V. Gawker: The News, Hyperlinking, And Contributory Infringement Liability, Victoria Geronimo

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

A Restatement Of Copyright Law As More Independent And Stable Treatise, Ann Bartow

Law Faculty Scholarship

This article maps the problematic consequences of over reliance by judges, lawyers and policy makers on copyright law treatises, with a particular focus on the negative effects Nimmer on Copyright has had on the evolution of various copyright law doctrines. It proposes that an ALI Restatement of Copyright Law is needed to create a reference tool that is transparently authored and edited.

Taming The "Frankenstein Monster": Copyright Claim Compatibility With The Class Action Mechanism, Renee G. Stern

Kernochan Center for Law, Media, and the Arts

In a 2013 opinion denying class certification to a putative class of copyright holders in Football Association Premier League Ltd. v. YouTube, Inc., Judge Stanton of the Southern District of New York wrote:

Generally speaking, copyright claims are poor candidates for class-action treatment. They have superficial similarities .... Thus, accumulation of all the copyright claims, and claimants, into one action will not simplify or unify the process of their resolution, but multiply its difficulties over the normal one-by-one adjudications of copyright cases.

Judge Stanton went on to characterize the case as a “Frankenstein monster posing as a class action” …

The Demise Of The Copyright Act In The Digital Realm: Re-Engineering Digital Delivery Models To Circumvent Copyright Liability After Aereo, Megan Larkin

Kernochan Center for Law, Media, and the Arts

This Note argues that the Second Circuit’s interpretation of the Transmit Clause eviscerates the meaning of “public” within the digital realm and has created a blueprint for business models to completely circumvent copyright liability. Part I provides the background of the public performance right, focusing on the role that technology has played in the addition of the Transmit Clause and on relevant judicial interpretation. Part II argues that the Second Circuit’s interpretation of the Transmit Clause was improper; it tests the court’s blueprint by re-engineering past business models to show how they could have evaded liability. Part III proposes that, …

A Taxonomy Of Borrowing, Jacqueline D. Lipton Ph.D.

Fordham Intellectual Property, Media and Entertainment Law Journal

While copyright infringement is a legal wrong, plagiarism is a breach of academic and market practices. However, few authors of literary works truly understand the difference between the two. Copyright law seeks to protect economic interests in an underlying work, while plagiarism—and in countries where moral rights are robust, associated legal rights—protect the integrity of the work and the author’s claim to the work. The digital age has refocused attention on the kinds of claims an author or copyright holder might make with respect to unauthorized uses of a literary work. The ease with which a digital work may be …

Afterword: Conferring About The Conference, Jessica Silbey, Aaron Perzanowski, Marketa Trimble

Faculty Scholarship

We heard at the conference five rich papers, all addressing in one way or another the conference's theme: "ReCalibrating Copyright: Continuity, Contemporary Culture, and Change." Professor Craig Joyce, in his capacity as conference convener, asked us as Fellows, at the end of the day of presentations and discussions, how we thought the Presenters' papers spoke to each other and to the conference's focus.

Kernochan Center News - Spring 2014, Kernochan Center For Law, Media And The Arts

Kernochan Center for Law, Media, and the Arts

No abstract provided.

Kernochan Center News - Summer 2014, Kernochan Center For Law, Media And The Arts

Kernochan Center for Law, Media, and the Arts

No abstract provided.

Fragmented Literal Similarity In The Ninth Circuit: Dealing With Fragmented Takings Of Jazz And Experimental Music, Michael Zaken

Kernochan Center for Law, Media, and the Arts

Newcomers to jazz often ask: Is it true that jazz is all improvised? Somehow the casual and romantic notion that jazz is generated in an entirely spontaneous manner has become deeply rooted in our society.

The notator of any jazz solo, or blues, has no chance of capturing what in effect are the most important elements of the music.... A printed musical example of an Armstrong solo, or of a Thelonious Monk solo, tells us almost nothing except the futility of formal musicology when dealing with jazz.

The difficulty of applying standard infringement measures to musical compositions in a way …