Law Commons^™

Performance Anxiety: The Internet And Copyright's Vanishing Performance/Distribution Distinction, Jonah M. Knobler

Jonah M. Knobler

This article attempts to answer two related questions on the subject of copyright law in the Internet age: First: Under present U.S. copyright law, does the delivery of a digital music file over the Internet as a “download” necessarily implicate the copyright holder’s right of public performance, above and beyond the obviously implicated rights of distribution and reproduction, as the music industry claims it does? This article examines the recent decision in United States v. ASCAP (S.D.N.Y. 2007), which held that it does not. The article also independently applies the major techniques of statutory interpretation to the relevant portions of …

The Freedom To Copy: Copyright, Creation And Context, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Although much separates them musically, George Harrison and Michael Bolton share a common legal fate. Both have been held liable in copyright infringement cases in which a court articulated theories of liability based on subconscious infringement. This Article discusses how decisions in the Bolton, Harrison, and other copyright infringement cases reflect a common failing. Such decisions highlight the incomplete nature of the theories of creativity and creation processes in copyright doctrine. After discussing current approaches to questions of creation, this Article suggests ways in which copyright theory can better incorporate a contextualized understanding of creativity and creation processes. Creativity in …

Making Money Making Music, Alan E. Garfield

Alan E Garfield

No abstract provided.

Submission: Draft Guidelines On The Infringement Notices And Forfeiture Of Infringing Copies And Devices Scheme, Copyright Amendment Regulations 2006, Kimberlee G. Weatherall

Kimberlee G Weatherall

Fixing Fair Use, Michael W. Carroll

Michael W. Carroll

The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another's copyrighted expression under certain circumstances. The doctrine's extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another's copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a …

Response To The Library Of Congress Request For Comment On Specific Issues In Section 108., Denise Troll Covey

Denise Troll Covey

No abstract provided.

Fair Use And The Fairer Sex: Gender, Feminism, And Copyright Law, Ann Bartow

Ann Bartow

Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when …

Review Of Some Peer-To-Peer, Democratically And Voluntarily Produced Thoughts About 'The Wealth Of Networks: How Social Production Transforms Markets And Freedom,' By Yochai Benkler, Ann Bartow

Ann Bartow

In this review essay, Bartow concludes that The Wealth of Networks: How Social Production Transforms Markets and Freedom by Yochai Benkler is a book well worth reading, but that Benkler still has a bit more work to do before his Grand Unifying Theory of Life, The Internet, and Everything is satisfactorily complete. It isn't enough to concede that the Internet won't benefit everyone. He needs to more thoroughly consider the ways in which the lives of poor people actually worsen when previously accessible information, goods and services are rendered less convenient or completely unattainable by their migration online. Additionally, the …

Codifying Copyright's Misuse Defense, Tom W. Bell

Tom W. Bell

Although courts have found a misuse defense to copyright infringement, lawmakers have not yet codified it. To clarify the doctrine, and to bring the Copyright Act up-to-date with the law, this paper proposes adding a new § 107(b): "It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section." The present …

Application To Participate In The Library Of Congress Section 108 Roundtable., Denise Troll Covey

Denise Troll Covey

No abstract provided.

Copyright As Intellectual Property Privilege, Tom W. Bell

Tom W. Bell

We often call copyright a species of intellectual property, abbreviating it, "IP." This brief paper suggests that we consider copyright as another sort of IP: an intellectual privilege. Though copyright doubtless has some property-like attributes, it more closely resembles a special statutory benefit than it does a right, general in nature and grounded in common law, deserving the title of property. To call copyright a privilege accurately reflects legal and popular usage, past and present. It moreover offers salutary policy results, protecting property's good name and rebalancing the public choice pressures that drive copyright policy. We face a choice between …

Why Do We Have Trade Secrets?, Michael Risch

Michael Risch

Trade secrets are arguably the most important and most litigated form of intellectual property, yet very little has been written that justifies their existence, perhaps because they differ so much from other forms of intellectual property. This article explores the history of trade secret law in the United States and examines why it is that every state has opted to protect secret information, even though such protection is antithetical to the policies of access associated with patent law and non-protection of 'facts' associated with copyright law. In this article, I examine four potential ways to justify trade secret law. First, …

Open Access, Law, Knowledge, Copyrights, Dominance And Subordination, Ann Bartow

Ann Bartow

The concept of open access to legal knowledge is at the surface a very appealing one. A citizenry that is well informed about the law may be more likely to comply with legal dictates and proscriptions, or at a minimum, will be aware of the consequences for not doing so. What is less apparent, however, is whether an open access approach to legal knowledge is realistically attainable without fundamental changes to the copyright laws that would recalibrate the power balance between content owners and citizens desiring access to interpretive legal resources. A truly useful application of open access principles would …

Copyright And Borrowing, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Borrowing is a norm in much cultural production that should be better incorporated into copyright doctrine. Copyright doctrine governs both the creation and distribution of cultural works, such as literary texts and musical works. Consideration of borrowing and copyright largely relates to the creation side of copyright. A number of terms may be used to illustrate the ways in which new cultural texts relate to existing cultural texts. Further, a significant commentary exists in fields such as literary theory and musicology that discusses and analyzes the significance of such relationships. Terms such as borrowing, self-borrowing, transformative imitation, quotation, allusion, homage, …

Evolving Standards & The Future Of The Dmca Anticircumvention Rulemaking, Aaron K. Perzanowski

Aaron K. Perzanowski

Every three years, the Copyright Office conducts a rulemaking to determine temporary exemptions from the Digital Millennium Copyright Act's (DMCA) anticircumvention provision. These exemptions are designed to prevent likely adverse impacts on noninfringing uses created by the prohibition on removing or bypassing technological protection measures that restrict access to copyrighted works. At the conclusion of the third and most recent rulemaking, the Librarian of Congress, acting on the advice of the Register of Copyrights, announced six classes of works exempt from the DMCA's anticircumvention provision for the three-year period ending October 27, 2009. This Article describes those exemptions and argues …