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Draft Of Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide - 2019, Wendy J. Gordon
Draft Of Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide - 2019, Wendy J. Gordon
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This Paper was presented at the conference, "A Celebration of the Work of Wendy Gordon," at Boston University school of law on June 14, 2019. In presented an earlier draft under the title, Transformative Use, Proximate Cause, and Copyright, at the University of Texas at Austin on March 23, 2017. Under the title, Inegrating Judge Legal's Theory of Fair Use into on Economic View of Copyright Law: From "proximate Cause" to "Transormative Use," the paper was also presented at the March, 2016, "Conference on IP and Private Law," held at Harvard Law School. I am grateful to …
Draft Of The Concept Of "Harm" In Copyright - 2013, Wendy J. Gordon
Draft Of The Concept Of "Harm" In Copyright - 2013, Wendy J. Gordon
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This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of “harm” (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each …
Footnote Draft Of Render Copyright Unto Caesar - 2004, Wendy J. Gordon
Footnote Draft Of Render Copyright Unto Caesar - 2004, Wendy J. Gordon
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This essay, however, does not press any particular agenda; rather, it tries to make our thinking about the topic more flexible. It is my hope that some conduct-specific rule as was adopted in the defamation context will eventually be adopted for intellectual property. Copyright law cannot continue forever closing its eyes and hoping its house will stop being haunted.
Draft Of Rendering Copyright Into Caesar - 2003, Wendy J. Gordon
Draft Of Rendering Copyright Into Caesar - 2003, Wendy J. Gordon
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This article makes a simple suggestion. Copyright rules by money, so let it rule the money-bound. Let a different set of rules evolve for more complex uses, particularly when the users have a personal relationship with the utilized text. Copyright. When new artists make transformative use of existing works in settings not characterized by pre-use commercial negotiations, copyright should avoid imposing a distorting burden.
Notes On Dissemination: The Prop/Tort Distinction - 2002, Wendy J. Gordon
Notes On Dissemination: The Prop/Tort Distinction - 2002, Wendy J. Gordon
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Most of the proviso-based reasons for restricting property rights come into play after dissemination.[1] Is there any other way in which dissemination matters? Yes; the point of dissemination demarks a crucial shift in the Kind of legal protection that must be given- and thus the Kind of institutional decisions that must be made- if the creator is to be protected.
Symposium Draft For Tragic Choices In Everyday Life - 1990, Wendy J. Gordon
Symposium Draft For Tragic Choices In Everyday Life - 1990, Wendy J. Gordon
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In the age of high technology, ordinary life situations often demand tragic choices: kidney dialysis, new pesticides, and even simple legal contracts can pose excruciating choices for people from all walks of life and inescapable dangers for innocent victims. This human dilemma-facing a world in which some innocents will die- is paralleled by the central Christian mythos of a willing crucifixion. Law and myth help us clarify the human situation.
Letter To Bruce Ackerman, Wendy J. Gordon
Letter To Bruce Ackerman, Wendy J. Gordon
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I shall be heading back to Rutgers for classes shortly, and I'm sending you a draft of the "Copyright and Copy-privilege" piece in the hope of receiving some additional comments before I enter into the final "polishing" stages later this month. As you know from my last note, the suggestions you made have proved extremely useful -- the title is the least of it. Among other things, your suggestions for reorganization led, indirectly, to a way of unifying the piece on copyright and contract with another piece I've been working on, regarding copyright and tort. I'm very pleased with the …
Draft Of The Constitutionalization Of Intentional Torts - 1986, Wendy J. Gordon
Draft Of The Constitutionalization Of Intentional Torts - 1986, Wendy J. Gordon
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The Supreme Court has often faced the question of whether an individual who alleges that he has been injured by a state or local official or by a local governmental entity, can bring a constitutional tort action under section 1983 when state doctrines of sovereign or official immunity would make it impossible for the individual to prosecute an ordinary tort suit in the relevant state court. The Court has consistently held that when an official violates a substantive provision of the Constitution, only an immunity that is consistent with the purpose of section 1983 and the Consitution can be tolerated.
Note On General Conclusion - 1986, Wendy J. Gordon
Note On General Conclusion - 1986, Wendy J. Gordon
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The burden of the first part of this paper has been to suggest that tort law provides us no self-justifying notion of "wrongs" by which we can allocate rights and duties. The burden of the second part of this paper has been to suggest that contract law's notion of "consent" is similarly unable to provide justification for any particular system of rights. How would one go about constructing a theory by which to evaluate whether a given property system could be justified? A full answer to that question is surely outside the scope of this paper, but some basic points …
Note On Re Article On Definition Of Tort/Property - 1986, Wendy J. Gordon
Note On Re Article On Definition Of Tort/Property - 1986, Wendy J. Gordon
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Some distinctions in the law are fairly clear. For example, we seem to think that bad actions deserve to be punished, actions which are not personally blameworthy should not be punished, and that injuries to innocent persons should be compensated. But there are many instances in which these two goals cannot be simultaneously served. There we partially separate them, placing each in its own primary area of law. For those instances in which a bad action occurs and no one is injured, the criminal law has a remedy (the law of attempts). For those instances in which an innocent party …
Outline Of Green Bound - 1985, Wendy J. Gordon
Outline Of Green Bound - 1985, Wendy J. Gordon
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No abstract provided.
Conversation With Whit Gray - 1985, Wendy J. Gordon
Conversation With Whit Gray - 1985, Wendy J. Gordon
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Whit Gray argued that even for things most of us would feel comfy saying AREN'T property, like the "idea" of shopping malls, we wouldn't feel so comfy with copying if the blueprints for the idea were copied prior to the time they became public. He argues also, that something more than "privacy" is at issue in our anger at visualizing such an intrusive prepublication copying.
Note On Individualized V Particularized Entitlement Inquiries - 1984, Wendy J. Gordon
Note On Individualized V Particularized Entitlement Inquiries - 1984, Wendy J. Gordon
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My analysis now looks something like this: Some entitlements should be "prima facie" protectible from invasion. That means that there are some entitlements which the owner should be able to protect even if he or she is unable to prove (a) that protection is in the net social interest or (b) that the invader's action is deserving of punishment. I would call these entitlements "property".