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Full-Text Articles in Law
Draft Of The Concept Of "Harm" In Copyright - 2013, Wendy J. Gordon
Draft Of The Concept Of "Harm" In Copyright - 2013, Wendy J. Gordon
Scholarship Chronologically
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 …
Copyright, Custom, And Lessons From The Common Law, Jennifer E. Rothman
Copyright, Custom, And Lessons From The Common Law, Jennifer E. Rothman
All Faculty Scholarship
In this essay prepared for the University of Pennsylvania’s conference on Intellectual Property and the Common Law, I build upon my work on custom and intellectual property. I focus here on one important facet of the subject — how longstanding common law principles should inform our understanding of custom. The common law provides a number of lessons on how to appropriately limit the consideration of custom in intellectual property law and elsewhere. The essay begins by considering the traditional role of custom in the common law. Part II then examines several of the ways that courts have incorporated custom into …
Alienability And Copyright Law, Shyamkrishna Balganesh
Alienability And Copyright Law, Shyamkrishna Balganesh
Faculty Scholarship
This chapter examines the interaction between copyright and the concept of alienability to show that it holds important structural and normative lessons for our understanding of the nature of the copyright entitlement, and its limitations. My use of the word ‘interaction’ is deliberate here, since my focus is not just on the question of whether and how inalienability restrictions internal to copyright doctrine motivate our theoretical understanding of copyright and its allied rights (for example, moral rights), a project that others have focused on previously. The chapter will instead attempt to understand how the copyright entitlement has addressed the basic …
An Intersystemic View Of Intellectual Property And Free Speech, Mark Bartholomew, John Tehranian
An Intersystemic View Of Intellectual Property And Free Speech, Mark Bartholomew, John Tehranian
Journal Articles
Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Interestingly, each intellectual property regime strikes the balance between ownership rights and free speech in a dramatically different way. Despite a large volume of scholarship on intellectual property rights and free speech considerations, this Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, …