Law Commons^™

Bloodsucking Copyrights, Ann Bartow

Ann Bartow

Some bloodsuckers live off the life-sustaining fluids of involuntary hosts and leave behind diseases or venom. Fleas, ticks, bedbugs, and mosquitoes are all bloodsuckers that are best avoided. Others, like the leech, suck blood in ways that can be very helpful to a host, promoting blood flow and healing. Vampires are fictional, sentient bloodsuckers that have populated various entertainment genres for centuries. Copyrights, too, can suck blood metaphorically in productive and destructive ways, or simply suck, period, when they senselessly impede free-flowing veins of information. And though they are not (yet) immortal, copyrights last a very long time.

In Copyright’s …

Internet Defamation As Profit Center: The Monetization Of Online Harassment, Ann Bartow

Ann Bartow

Efforts to decrease the sexist aspects of online fora have been largely ineffective, and in some instances seemingly counterproductive, in the sense that they have provoked even greater amounts of abuse and harassment with a gendered aspect. And so, in the wake of a series of high profile episodes of cyber sexual harassment, and a grotesque abundance of low profile ones, a new business model was launched. Promising to clean up and monitor online information to defuse the visible impact of coordinated harassment campaigns, a number of entities began to market themselves as knights in cyber shining armor, ready to …

Why Hollywood Does Not Require "Saving" From The Record Keeping Requirements Imposed By 18 U.S.C. Section 2257, Ann Bartow

Ann Bartow

No abstract provided.

Pornography, Coercion, And Copyright Law 2.0, Ann Bartow

Ann Bartow

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their …

Portrait Of The Internet As A Young Man, Ann Bartow

Ann Bartow

In brief, the core theory of Jonathan Zittrain’s 2008 book The Future of the Internet - and How to Stop It is this: good laws, norms, and code are needed to regulate the Internet, to prevent bad laws, norms, and code from compromising its creative capabilities and fettering its fecund flexibility. A far snarkier if less alliterative summary would be “We have to regulate the Internet to preserve its open, unregulated nature.”

Zittrain posits that either a substantive series of unfortunate Internet events or one catastrophic one will motivate governments to try to regulate cyberspace in a way that promotes …

When Bias Is Bipartisan: Teaching About The Democratic Process In An Intellectual Property Law Republic, Ann Bartow

Ann Bartow

No abstract provided.

Trademarks Of Privilege: Naming Rights And The Physical Public Domain, Ann Bartow

Ann Bartow

This paper critiques the branding and labeling of the physical public domain with the names of corporations, commercial products, and individuals. It suggests that under-recognized public policy conflicts exist between the naming policies and practices of political subdivisions, trademark law, and right of publicity doctrines. It further argues that naming acts are often undemocratic and unfair, illegitimately appropriate public assets for private use, and constitute a limited form of compelled speech. It concludes by considering alternative mechanisms by which the names of public facilities could be chosen.

The Feminist Pervasion: How Gender-Based Scholarship Informs Law And Law Teaching, Ann Bartow

Ann Bartow

This is an edited, annotated transcript of a conference panel discussion on feminism, sex, and gender in law, legal education, and legal scholarship. The transcript reflects widely divergent views of the place of feminism, sex, and gender in the law and legal scholarship. Moreover, the panelists differ as to the role feminism has played in the lives of women as law students and practicing attorneys. In the latter part of the transcript, the panelists' remarks focus in on hotly debated issues surrounding possible gender (or sex) and racial bias in LSAT testing and the innate abilities of women and men …

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 …

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 …

A Feeling Of Unease About Privacy Law, Ann Bartow

Ann Bartow

This essay responds to Daniel Solove's recent article, A Taxonomy of Privacy. I have read many of Daniel Solove's privacy-related writings, and he has made many important scholarly contributions to the field. As with his previous works about privacy and the law, it is an interesting and substantive piece of work. Where it falls short, in my estimation, is in failing to label and categorize the very real harms of privacy invasions in an adequately compelling manner. Most commentators agree that compromising a person's privacy will chill certain behaviors and change others, but a powerful list of the reasons why …

Some Dumb Girl Syndrome: Challenging And Subverting Destructive Stereotypes Of Female Attorneys, Ann Bartow

Ann Bartow

This Essay considers ways in which female attorneys confront sexism and stereotyping in the legal profession and in life, and strongly endorses embracing feminism, and wearing comfortable shoes.

Women In The Web Of Secondary Copyright Liability And Internet Filtering, Ann Bartow

Ann Bartow

This Essay suggests possible explanations for why there is not very much legal scholarship devoted to gender issues on the Internet; and it asserts that there is a powerful need for Internet legal theorists and activists to pay substantially more attention to the gender-based differences in communicative style and substance that have been imported from real space to cyberspace. Information portals, such as libraries and web logs, are "gendered" in ways that may not be facially apparent. Women are creating and experiencing social solidarity online in ways that male scholars and commentators do not seem to either recognize or deem …

Beyond Napster: Debating The Future Of Copyright On The Internet - Panel Three: New Business Models, Regulatory Options And The Future Of Copyright On The Internet, Ann Bartow

Ann Bartow

This article presents a panel discussion concerning the future of copyright on the internet. The panel convened in Washington, D. C. on Thursday, November 16, 2000, and was moderated by Joshua J. Kaufman of Venable, Baetjer, Howard & Civiletti. The panelists included Ann Bartow (University of South Carolina School of Law), Edward J. Black (Computer & Communications Industry Association), Philip S. Corwin (Butera & Andrews), Brian Hecht (enews.com), Keith Kupferschmid (Software Information Industry Association), Bennett Lincoff (Darby & Darby), and David Pakman (myplay.com). The panel discussed the internet business models of the future and how the piracy problems created by …

The Hegemony Of The Copyright Treatise, Ann Bartow

Ann Bartow

This Article asserts that major conceptions about the appropriate structure, texture, and span of copyright protections and privileges have been fashioned by copyright treatises, particularly the various editions of Nimmer on Copyright. Copyright treatises function in concert with the machinations of Congress, the courts, and custom, but their role is not often scrutinized.

Because copyright treatises typically do a far better job than Congress or the courts of explicating copyright law in straightforward and accessible language, such treatises can not only communicate the copyright law, but also influence its development and direction. Policy makers no doubt understand that content owners …

Copyrights And Creative Copying, Ann Bartow

Ann Bartow

People invest their time, energy and resources to produce a broad variety of copyrightable works of original authorship for an expansive array of reasons, many of which appear economically irrational. This makes it impossible to offer defensible generalizations about the effect, if any, that copyright laws have upon human creators, their artistic impulses, and the decision making underlying the formation of creative works. Nevertheless, it seems highly probable that authors can be negatively affected by the specter of copyright infringement suits in a manner that burdens and chills the creative process. Exact, whole-text copying can be avoided by authors aspiring …

Likelihood Of Confusion, Ann Bartow

Ann Bartow

The primary objective of this Article is to illustrate the tendency of judges to inappropriately rely on personal intuition and subjective, internalized stereotypes when ruling on trademark disputes. Where jurists perceive consumers as ludicrously easily confused, trademark holders can exploit these views to secure broad trademark "rights," often without offering a shred of evidentiary corroboration concerning such confusion. As a consequence, the proof required to support allegations that a trademark usage creates a likelihood of confusion is potentially lessened in all cases, making trademarks normatively stronger, broader, and ever easier to "protect" for mark holders. Whether consumers realistically benefit from …

Electrifying Copyright Norms And Making Cyberspace More Like A Book, Ann Bartow

Ann Bartow

The first half of this Article charts the evolving but eminently ascertainable social norms of the use of analog copyrighted works by individuals, and characterizes these norms as "what is" in real space and "what ought to be" in cyberspace. The Author argues that while "what is" in the analog world may be imperfect, uncertain and unsatisfactory at times, it represents a discernible practical equilibrium upon which copyright holders' ability to control and extract income from their works is balanced against the rights of fair users. Authors, content distributors and users all make decisions within a familiar longstanding copyright framework, …

Electrifying Copyright Norms And Making Cyberspace More Like A Book, Ann Bartow

Ann Bartow

The first half of this Article charts the evolving but eminently ascertainable social norms of the use of analog copyrighted works by individuals, and characterizes these norms as "what is" in real space and "what ought to be" in cyberspace. The Author argues that while "what is" in the analog world may be imperfect, uncertain and unsatisfactory at times, it represents a discernible practical equilibrium upon which copyright holders' ability to control and extract income from their works is balanced against the rights of fair users. Authors, content distributors and users all make decisions within a familiar longstanding copyright framework, …

Intellectual Property And Domestic Relations: Issues To Consider, Ann Bartow

Ann Bartow

Intellectual property (IP) is a term that denotes intangible yet legally protected products of human creativity. The main types of IP include patents, copyrights, and trademarks. This article provides an overview of the special IP issues that can arise in the contexts of divorce, estate planning, or probate.

Colloquium On Privacy & Security, Ann Bartow

Ann Bartow

On November 2-3, 2001, the University of Buffalo sponsored Digital Frontier: The Buffalo Summit 2001. The attendees included Gary M. Schober (Moderator), Shubha Ghosh (Organizer), Ann Bartow, Chris Hoofnagle, and Phyllis Borzi. The participants were drawn from a wide range of specialties, from lawyers and doctors to business-men and academics, in order to provide some perspective on our data-driven world. This session on Privacy and Security identified some of the trends in technology that threaten privacy rights, as well as those that may assists preserving privacy. The speakers also explored legal developments and political structure influencing cyber-privacy.

Intellectual Property And Domestic Relations: Issues To Consider When There Is An Artist, Author, Inventor, Or Celebrity In The House, Ann Bartow

Ann Bartow

This article articulates some of the special issues raised by intellectual property in the context of family-law-oriented concerns. It also necessarily explores the characteristics and properties of personal intellectual property in a broader sense. What follows is an overview of the special issues and concerns intellectual property might present in the context of divorce, estate planning, or probate. Please keep one important caveat in mind: Intellectual property has become a very dynamic area of the law. Governing federal patent, copyright, and trademark statutes are extensively amended with astounding frequency. Right of publicity and trade secret law are also constantly evolving. …

Arresting Technology: An Essay, Ann Bartow

Ann Bartow

This Essay considers the current trend of content owners using copyright laws (particularly the doctrine of contributory infringement) to "arrest technology," thereby burdening file sharing technologies with a duty to prevent unauthorized copying of copyrighted works in digital formats. The Author argues that copying is not necessarily theft, and that sharing music files (for example) shouldn't be treated by courts or lawmakers as if it was "the moral equivalent of looting." Instead, copyright owners should take responsibility for developing technological measures to minimize unauthorized copying, so that file trading technologies, themselves often copyrightable innovations, can flourish and copyright law promotes …

Still Not Behaving Like Gentlemen, Ann Bartow

Ann Bartow

The author reflects upon the genesis of a law school project with Lani Guinier that ultimately resulted in the publication of a law review article entitled Becoming Gentlemen: Women's Experiences at One Ivy League Law School, and later a book, Becoming Gentlemen: Women, Law School, and Institutional Change. I discuss an apparent dearth of positive, substantive changes in legal education over the past eleven years, noting that women apparently continue to receive lower grades and fewer honors related to grades in top law schools. I also consider reactions to Becoming Gentlemen, and observe that to the extent it got everyone's …

Libraries In A Digital And Aggressively Copyrighted World: Retaining Patron Access Through Changing Technologies, Ann Bartow

Ann Bartow

This essay asks the reader to consider the effects that copyright laws and policies, when filtered through the digital prism and bundled with restrictive contract terms, will have on library patrons. It further implores the reader to consider the broad benefits to library patrons of a statutorily guaranteed right to library use of copyrighted materials in any form.

The True Colors Of Trademark Law: Greenlighting A Red Tide Of Anti Competition Blues, Ann Bartow

Ann Bartow

This essay asks the reader to consider the effects that copyright laws and policies, when filtered through the digital prism and bundled with restrictive contract terms, will have on library patrons. It further implores the reader to consider the broad benefits to library patrons of a statutorily guaranteed right to library use of copyrighted materials in any form.

Libraries In A Digital And Aggressively Copyrighted World: Retaining Patron Access Through Changing Technologies, Ann Bartow

Ann Bartow

This essay asks the reader to consider the effects that copyright laws and policies, when filtered through the digital prism and bundled with restrictive contract terms, will have on library patrons. It further implores the reader to consider the broad benefits to library patrons of a statutorily guaranteed right to library use of copyrighted materials in any form.

Our Data, Ourselves: Privacy, Propertization, And Gender , Ann Bartow

Ann Bartow

This Article starts by providing an overview of the types of personal data that is collected via the Internet, and the ways in which this information is used. The author asserts that because women are more likely to shop and share information in cyberspace, the impact of commodification of personal data disproportionately impacts females, enabling them to be "targeted" by marketing campaigns, and stripping them of personal privacy. The author then surveys the legal terrain of personal information privacy, and concludes that it is unlikely that the government will step in to provide consumers with substantive privacy rights or protections. …

Separating Marketing Innovation From Actual Invention: A Proposal For A New, Improved, Lighter And Better-Tasting Form Of Patent Protection, Ann Bartow

Ann Bartow

This Article suggests that commercial entities sometimes obtain patents for reasons unrelated to securing profitable technological monopolies. Patents, especially those with narrow scopes that are easily designed around, may be obtained to disadvantage competitors or to make the patent holder appear innovative, rather than to fence off an invention for commercial exploitation. Patents obtained for nontraditional reasons - denoted leverage and keeping up appearances patents in this Article - may represent highly inefficient uses of both public and private resources. To solve some of these efficiency problems, the author proposes creating a second-tier Origination Patent option, which would offer patentees …