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Articles 1 - 30 of 127
Full-Text Articles in Law
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 …
Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold - Draft - 05-15-2017, Wendy J. Gordon
Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold - Draft - 05-15-2017, Wendy J. Gordon
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Patrick Goold’s interesting new article, Unbundling the “Tort” of Copyright Infringement (“Unbundling”) centers on a key lack of clarity that Professor Goold perceives in the cause of action for copyright infringement. The lack of clarity, he argues, afflicts threshold definitions of what constitutes actionable copying.
Useful Articles In Copyright: Proposed Amendments To Section 101 And 114 - 2014, Wendy J. Gordon
Useful Articles In Copyright: Proposed Amendments To Section 101 And 114 - 2014, Wendy J. Gordon
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The origin of the definition probably lies with everyone's favorite protean decision, Baker v. Selden, 101 U.S. 99 (1879). For example, in 1924, the Second Circuit borrowed from Baker in upholding the copyright in 'Sparky,' a stuffed doll in the shape of a horse. The crucial distinction, which the court quoted from Baker, was the line between, on the one hand, "designs or pictorial illustrations addressed to the taste" whose "object [is] the production of pleasure in their contemplation," and, on the other hand, "methods of useful art [that] have their final end in application and use. "
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 …
Draft Of Product Design: The Misfit Of Intellectual Property Law - 2011, Wendy J. Gordon
Draft Of Product Design: The Misfit Of Intellectual Property Law - 2011, Wendy J. Gordon
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The collection of legal rights commonly labeled "intellectual property" does not reflect any comprehensive master plan. Indeed, the label itself does a disservice in suggesting a set of laws with some coherence, cohesion, or at least commonality. 1 In fact, the various laws governing so-called intellectual property have evolved to address disparate concerns, at different times, and through distinct legal tools. 2 As a result, the canvas of intellectual property laws looks more like a messy collage - with overlaps, unmarked or blank spaces, and jagged edges - than a neat landscape characterized by careful planning and harmony.
Speech In The Role Of Fiduciary Law And Trust In The Twenty-First Century, Wendy J. Gordon
Speech In The Role Of Fiduciary Law And Trust In The Twenty-First Century, Wendy J. Gordon
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As someone who is not a specialist in the area, I am grateful to be included in today's conference. I wanted to be here to mark the admiration I have for Professor Frankel. Like Ken Simons, I have benefited from Tamar's knowledge base which is both deep and wide, her lively and inexhaustible curiosity, her imagination, and the immense intellectual stimulation she inevitably provides. Her new book under discussion today reveals some of her extraordinary powers, in its skillful use of materials from sources as diverse as Hammurabi and Grotius, from histories ancient and modem, traditions religious and secular, and …
Draft Of Beck Lecture - 2010, Wendy J. Gordon
Draft Of Beck Lecture - 2010, Wendy J. Gordon
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I am grateful to the wonderful BU community that has taught me so much, and to those who made this event possible. I thank Dean O'Rourke for hosting this wonderful event, Mary Gallagher, Cornell Stinson and Erin Elwood for organizing it, and I thank you all for coming. I am honored to follow Bill Ryckman in the Chair, a man I admire. Most especially I thank Phil Beck for his generosity to the Boston University School of Law in funding this Chair. It's flattering to me having been chosen its recipient, and flattering to the school that Phil chose us …
Draft Of Beck Speech - 2010, Wendy J. Gordon
Draft Of Beck Speech - 2010, Wendy J. Gordon
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I come here with a sense of gratitude, to the intellectually stimulating BU community of students, staff and faculty, that has taught me so much, and grateful today especially to those who made this event possible. I would like to thank you all for coming, thank Dean O'Rourke for hosting this wonderful event, Mary Gallagher and Cornell Stinson for organizing it, and most especially I thank Phil Beck for his generosity to the Boston University School of Law in funding this Chair. It's immensely flattering to me having been chosen the initial recipient, and flattering to the school that Phil …
Copyright's Derivative Works Doctrine And An Upside-Down Proviso, Wendy J. Gordon
Copyright's Derivative Works Doctrine And An Upside-Down Proviso, Wendy J. Gordon
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It is sometimes observed that questions of "justice in acquisition" do not much arise any more. However, judges face those questions on a daily basis in courtrooms adjudicating copyright and patent matters. In United States copyright law, for example, an intriguing dilemma regarding derivative works has developed that raises what appears to be a new issue regarding John Locke's sufficiency proviso.
Draft Of Copyright's Derivative Works Doctrine And An Upside-Down Proviso - 2010, Wendy J. Gordon
Draft Of Copyright's Derivative Works Doctrine And An Upside-Down Proviso - 2010, Wendy J. Gordon
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It is sometimes observed that questions of'justice in acquisition" do not much arise any more. However, judges face those questions on a daily basis in courtrooms adjudicating copyright and patent matters. In United States copyright law, for example, an intriguing dilemma regarding derivative works has developed that raises what appears to be a new issue regarding John Locke's sufficiency proviso.
Outline Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Outline Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
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We want to believe we have intrinsic importance. We want to believe our loved ones do too. That's one of the things that makes age and death so scary: at some point no one will know that green dress was the one grandma wore to your parents' wedding, all that matters to you will no longer matter to anyone. But we want to feel that living DID matter.
Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
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Recall Tina Turner's famous song, where the singer pounds the audience repeatedly with the insistent apparent question: "what's love got to do with it!?" We know she's not really asking, "What's love got to do with it"; she's making a statement. What she wants to do is deny love's force, and free herself from its disappointment. The singer's seeming repudiation of love is an attempted eradication of something that is definitely still part of her.
Handwritten Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Handwritten Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
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At fifteen I found myself looking at a tree against the sky and being filled up with something bigger than I could contain. It was a sensation that demanded to be poured into something. The best label I could find for the emotion was "gratitude": Gratitude for the world I had not made, but had been given.
Lecture Draft Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Lecture Draft Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
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I've taken advantage of Tom's invitation to write a paper on religion and copyright that was "informal in format, in keeping with the informal nature of this gathering". What I have had to say on the Jewish law of gleaning is already on record; 1 what you'll read here are more like meditations. Thinking about the connections between art, spirituality and law has touched some very personal issues for me. Further, I know that everything I have to say is partial. I hope what I am about to give you will nevertheless raise some questions of interest.
Notes On Gift Failure Versus Market Failure: Analyzing The Generation And Circulation Of Intellectual Products - 2009, Wendy J. Gordon
Notes On Gift Failure Versus Market Failure: Analyzing The Generation And Circulation Of Intellectual Products - 2009, Wendy J. Gordon
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Gifts and gift exchanges can serve a combination of economic, personal, social and humanitarian ends. This article explores how intellectual products are unusually capable of serving these ends through gift relations, and suggests ways in which the law can assist in this process.
Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - Lecture Transcript - 10-31-2008, Wendy J. Gordon
Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - Lecture Transcript - 10-31-2008, Wendy J. Gordon
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I also thank this morning's panelists. What I'm going to do is, first, say a little bit of an overview about what brings us all together and then talk about a particular project that many of you already have heard about, but it is something that has bothered me ever since I entered the field. It is the problem of harmless use, or what you might call a beneficial spillover that causes no loss to the person who is causally responsible for it, either in whole or in part.
Keynote Lecture For Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - 2008, Wendy J. Gordon
Keynote Lecture For Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - 2008, Wendy J. Gordon
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One of the things that unifies many of the scholars in IP generally, and in this room in particular, is an interest in what you might call noncommercial models cooperative sharing, peer-to-peer creativity-a yearning for a different kind of life, perhaps, one that's less commercial, more focused on dialogues, both democratic and personal, and a mode of life that emphasizes the process and product of work rather than its monetary payoff. We all know from the work of Teresa Amabile and Alfie Cohen and our own experience that if you are keeping your eye on a monetary goal or getting …
Draft For Harmless Use: Gleaning From Fields Of Copyrighted Works - 2008, Wendy J. Gordon
Draft For Harmless Use: Gleaning From Fields Of Copyrighted Works - 2008, Wendy J. Gordon
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My inquiry is into whether harmless uses of property should give the property owner a right to sue. Under current law, harmless trespasses to land and to copyrights and patents do indeed give rise to liability. Should they? Neither moral philosophy, political science nor economics deals well with the harmless free-rider. The possibility I'm exploring-- just exploring at this stage-- is the following: that where inexhaustible products like information become a primary source of value, our institutions might serve us better if instead of mandating payment for harmless use via legal compulsion, payment for harmless use be left to the …
Current Patent Laws Cannot Claim The Backing Of Human Rights - 2008, Wendy J. Gordon
Current Patent Laws Cannot Claim The Backing Of Human Rights - 2008, Wendy J. Gordon
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The majority of the world's countries (one exception being the United States) have undertaken a commitment at the level of human rights to protect the interests of persons who author 'scientific ... production[s]'. This commitment is embodied in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which recognizes in Article 15.1.(c) the rights of everyone 'to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.'
Email To Bob Bone Re: Idea Expression Dichotomy, Wendy J. Gordon
Email To Bob Bone Re: Idea Expression Dichotomy, Wendy J. Gordon
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This is to recap our discussion, to make sure we're on the same page, and carry this a bit further. I'm very excited.
Fair Use, "Fared Use," And Public Rights: Amending Section 107 - Draft - 08-19-2007, Wendy J. Gordon
Fair Use, "Fared Use," And Public Rights: Amending Section 107 - Draft - 08-19-2007, Wendy J. Gordon
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Under provocative titles like "Fared Use', and '"the end of friction," commentators argue about the viability of copyright's fair use doctrine in a word of instantaneous transactions. As collecting societies such as the Copyright Clearance Center extend their licensing prowess, and Internet-based electronic commerce has made it possible to purchase digital copies with the click of a mouse, the suggestion is sometimes made that fair use could or should disappear. Decisions in the Second and Sixth Circuits have hinted that fair use may be foreclosed if a licensing market exists or is possible. The presence of "traditional, reasonable, or likely …
Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
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Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …
Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
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Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …
Summary Of Resisting Novels By Lennard Davis - 2007, Wendy J. Gordon
Summary Of Resisting Novels By Lennard Davis - 2007, Wendy J. Gordon
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No abstract provided.
Draft Of Fair Use And Face-To-Face Bargaining - 2007, Wendy J. Gordon
Draft Of Fair Use And Face-To-Face Bargaining - 2007, Wendy J. Gordon
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Alex has a ten-year-old cassette of a favorite movie. Unfortunately, she does not have a video cassette player. She wants to copy the movie onto her iPod. To do this, she borrows a VCR from a friend, runs a cable to a video capture port on my computer, reformats the file into something the iPod can read, and sends the file to the iPod, which she will use to watch the movie in the future. After the file is securely on the iPod, she will delete all records of the movie from my computer. Destroy the original VHS copy seems …
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.
Email To Kate On Article Changes, Wendy J. Gordon
Email To Kate On Article Changes, Wendy J. Gordon
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Here are further corrections to my article (Chapter 10).
Classroom Lecture For Copyright Law, Wendy J. Gordon
Classroom Lecture For Copyright Law, Wendy J. Gordon
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The differences between direct, vicarious and contributory liability, Section 512 in related matters. Alright, now let's move on to the next question, which is criminal liability. You read some material on that. And the basic lessons that I want you to take from the material are the following. First, notice that federal copyright law does not impose criminal liability easily as ordinary laws of tangible property do. And I think that that's a good thing. Remember that guy in Les Miserables who's pursued for stealing a loaf of bread. Stealing in the sense of copying one song would not make …