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Full-Text Articles in Law

Internet Architecture And Disability, Blake E. Reid Jan 2020

Internet Architecture And Disability, Blake E. Reid

Articles

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive ...


Imaginary Bottles, Jessica Litman Aug 2019

Imaginary Bottles, Jessica Litman

Articles

This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade ...


What We Don't See When We See Copyright As Property, Jessica Litman Nov 2018

What We Don't See When We See Copyright As Property, Jessica Litman

Articles

For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which created statutory ...


Commentary, Improving The Quality And Consistency Of Copyright Infringement Analysis In Music, Kristelia A. García Jan 2018

Commentary, Improving The Quality And Consistency Of Copyright Infringement Analysis In Music, Kristelia A. García

Articles

No abstract provided.


The New Separability, Lili Levi Jan 2018

The New Separability, Lili Levi

Articles

In Star Athletica v. Varsity Brands, the Supreme Court recently unveiled a new approach to separability. Because copyright law protects expression, not function, aesthetic features of useful articles are eligible for copyright protection only if they are separable from the functional work in which they are incorporated. But the Copyright Actdoes not define separability, and Star Athletica is the latest judicial effort to try to fill that void. Unfortunately, the new separability is open to a wide range of critiques. Relatively low-hanging fruit are the vagueness and indeterminacy of the new test, the Court's unsatisfactory attempts to avoid defining ...


Silent Similarity, Jessica D. Litman Apr 2015

Silent Similarity, Jessica D. Litman

Articles

From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form—silent movies—had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases—in particular, Nichols v. Universal Pictures—are canonical today. They are not, however, well-understood. In particular, the ...


Campbell At 21/Sony At 31, Jessica D. Litman Jan 2015

Campbell At 21/Sony At 31, Jessica D. Litman

Articles

When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting ...


Derivative Works 2.0: Reconsidering Transformative Use In The Age Of Crowdsourced Creation, Jacqueline D. Lipton, John Tehranian Jan 2015

Derivative Works 2.0: Reconsidering Transformative Use In The Age Of Crowdsourced Creation, Jacqueline D. Lipton, John Tehranian

Articles

Apple invites us to “Rip. Mix. Burn.” while Sony exhorts us to “make.believe.” Digital service providers enable us to create new forms of derivative work — work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement ...


Antibiotic Resistance, Jessica D. Litman Jan 2012

Antibiotic Resistance, Jessica D. Litman

Articles

Ten years ago, when I wrote War Stories,' copyright lawyers were fighting over the question whether unlicensed personal, noncommercial copying, performance or display would be deemed copyright infringement. I described three strategies that lawyers for book publishers, record labels, and movie studios had deployed to try to assure that the question was answered the way they wanted it to be. First, copyright owners were labeling all unlicensed uses as "piracy" on the ground that any unlicensed use might undermine copyright owners' control. That epithet helped to obscure the difference between unlicensed uses that invaded defined statutory exclusive rights and other ...


Readers' Copyright, Jessica D. Litman Jan 2011

Readers' Copyright, Jessica D. Litman

Articles

My goal in this project is to reclaim copyright for readers (and listeners, viewers, and other members of the audience). I think, and will try to persuade you, that the gradual and relatively recent disappearance of readers’ interests from the core of copyright’s perceived goals has unbalanced the copyright system. It may have prompted, at least in part, the scholarly critique of copyright that has fueled copyright lawyers’ impression that “so many in academia side with the pirates.” It may also be responsible for much of the deterioration in public support for copyright. I argue here that copyright seems ...


The Copyright Principles Project: Directions For Reform, Jessica D. Litman, Pamela Samuelson, The Copyright Principles Project Jan 2010

The Copyright Principles Project: Directions For Reform, Jessica D. Litman, Pamela Samuelson, The Copyright Principles Project

Articles

Copyright law performs a number of important functions. It facilitates public access to knowledge and a wide range of uses of creative works of authorship, and, in so doing, it helps educate our populace, enrich our culture, and promote free speech, free expression, and democratic values. It provides opportunities for rights holders to recoup investments in creating and disseminating their works and to enjoy the fruits of whatever success arises from the public's uses of their works. In the process, copyright also plays a role in regulating new technologies and services through which creative works may be accessed. A ...


The Invention Of Common Law Play Right, Jessica D. Litman Jan 2010

The Invention Of Common Law Play Right, Jessica D. Litman

Articles

This Article explores playwrights' common law "play right." Since this conference celebrates the 300th birthday of the Statute of Anne, I begin in England in the 17th Century. I find no trace of a common law playwright's performance right in either the law or the customary practices surrounding 17th and 18th century English theatre. I argue that the nature and degree of royal supervision of theatre companies and performance during the period presented no occasion (and, indeed, left no opportunity) for such a right to arise. I discuss the impetus for Parliament's enactment of a performance right statute ...


Real Copyright Reform, Jessica D. Litman Jan 2010

Real Copyright Reform, Jessica D. Litman

Articles

A copyright system is designed to produce an ecology that nurtures the creation, dissemination, and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners, and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this Article, I explore how the current ...


Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz Jan 2009

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

Pity the poor Artistic License version 1.0 (ALv1). The Free Software Foundation criticizes the license as “too vague” with some passages “too clever for their own good.” The Open Source Initiative suggests that it has been “superseded.” ALv1’s authors at the Perl Foundation even acknowledge its flaws.

Yet it is the ALv1, not the venerable GNU General Public License (GPL), which the Federal Circuit upheld in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)], establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case’s greater ...


Intellectual Liability, Daniel A. Crane Jan 2009

Intellectual Liability, Daniel A. Crane

Articles

Intellectual property is increasingly a misnomer since the right to exclude is the defining characteristic of property and incentives to engage in inventive and creative activity are increasingly being granted in the form of liability rights (which allow the holder of the right to collect a royalty from users) rather than property rights (which allow the holder of the right to exclude others from using the invention or creation). Much of this recent reorientation in the direction of liability rules arises from a concern over holdout or monopoly power in intellectual property. The debate over whether liability rules or property ...


The Politics Of Intellectual Property, Jessica D. Litman Jan 2009

The Politics Of Intellectual Property, Jessica D. Litman

Articles

In May 2005, Keith Aoki invited me to participate on a panel on "The Politics of Copyright Law" at the 2006 Association of American Law Schools ("A.A.L.S. ") mid-year meeting workshop on Intellectual Property in Vancouver, British Columbia. The panel, renamed "The Politics of Intellectual Property," and moderated by Keith, included talks by Justin Hughes, Mark Lemley, Jay Thomas, and me, and it was followed by three concurrent sessions on "The Politics Concerning Moral Rights," "The Politics of Global Intellectual Property, " and "The Politics of Patent Reform." I'm not sure what the organizing committee had in mind ...


The Copyright Revision Act Of 2026, Jessica D. Litman Jan 2009

The Copyright Revision Act Of 2026, Jessica D. Litman

Articles

As someone who teaches and writes about copyright law, I end up straddling two different worlds. On the one hand, I really do need to understand and be able to teach the details of the copyright statute and the case law construing it. My students need to know the difference between a public performance right under Section 106(4) and a public performance right by digital audio transmission under Section 106(6); they need to know the difference between the statutory licenses available under Section 114 and the statutory licenses available under Section 115.' So, I need to have all ...


Billowing White Goo, Jessica D. Litman Jan 2008

Billowing White Goo, Jessica D. Litman

Articles

The title of this symposium is the question: "Fair Use: "Incredibly Shrinking" or Extraordinarily Expanding?" I'd argue that the answer to the question is "no." Fair use isn't doing either. The size of the fair use footprint has stayed remarkably constant over the past 30 or even 50 years. What has expanded, extraordinarily, is the size of rights granted by the copyright law. It may seem as if fair use is either expanding or shrinking, because the greater reach of copyright has made a bunch of uses potentially fair that weren't even potentially infringing 50 years ago ...


Lawful Personal Use, Jessica D. Litman Jan 2007

Lawful Personal Use, Jessica D. Litman

Articles

Despite having sued more than 20,000 of its customers,2 the recording industry wants the world to know that it has no complaint with personal use. Copyright lawyers of all stripes agree that copyright includes a free zone in which individuals may make personal use of copyrighted works without legal liability.3 Unlike other nations, though, the United States hasn't drawn the borders of its lawful personal use zone by statute.4 Determining the circumstances under which personal use of copyrighted works will be deemed lawful is essentially a matter of inference and analogy, and differently striped copyright ...


Creative Reading, Jessica D. Litman Jan 2007

Creative Reading, Jessica D. Litman

Articles

Let me begin with something that Jamie Boyle wrote ten years ago in Intellectual Property Policy Online: A Young Person's Guide:' Copyright marks the attempt to achieve for texts and other works a balance in which the assumption of the system is that widespread use is possible without copying. The relative bundles of rights of the user and the owner achieve their balance based on a set of economic and technical assumptions about the meaning of normal use. For our purposes, I would like to generalize this as something that Boyle might have written if he had not in ...


Harnessing And Sharing The Benefits Of State-Sponsored Research: Intellectual Property Rights And Data Sharing In California's Stem Cell Initiative, Rebecca S. Eisenberg, Arti K. Rai Jan 2006

Harnessing And Sharing The Benefits Of State-Sponsored Research: Intellectual Property Rights And Data Sharing In California's Stem Cell Initiative, Rebecca S. Eisenberg, Arti K. Rai

Articles

This Article discusses data sharing in California's stem cell initiative against the background of other data sharing efforts and in light of the competing interests that CIRM is directed to balance. We begin by considering how IP law affects data sharing. We then assess the strategic considerations that guide the IP and data policies and strategies of federal, state, and private research sponsors. With this background, we discuss four specific sets of issues that public sponsors of data-rich research, including CIRM, are likely to confront: (1) how to motivate researchers to contribute data; (2) who should have access to ...


The Economics Of Open Access Law Publishing, Jessica D. Litman Jan 2006

The Economics Of Open Access Law Publishing, Jessica D. Litman

Articles

The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. Recently, we have seen a number of high-profile experiments seeking to use one of a variety of forms of open access scholarly publishing to develop an alternative model. Critics have not quarreled with the goals of open access publishing; instead, they've attacked the viability of the open access business model. If we are examining the economics of open access publishing, we shouldn't limit ourselves to the question whether open access journals have ...


The Public Domain, Jessica D. Litman Jan 1990

The Public Domain, Jessica D. Litman

Articles

This article examines the public domain by looking at the gulf between what authors really do and the way the law perceives them. Part I outlines the basics of copyright as a species of property and introduces the public domain's place within the copyright scheme. Copyright grants authors" ' rights modeled on real property in order to encourage authorship by providing authors with markets in which they can seek compensation for their creations. Because parcels of authorship are intangible, however, the law faces *problems in determining the ownership and boundaries of its property grants. In particular, the concept of "originality ...


Copyright Legislation And Technological Change, Jessica D. Litman Jan 1989

Copyright Legislation And Technological Change, Jessica D. Litman

Articles

Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future,6 the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.7 In this Article, I suggest that the nature of the legislative ...


Performer's Rights And Digital Sampling Under U.S. And Japanese Law, Jessica D. Litman Jan 1988

Performer's Rights And Digital Sampling Under U.S. And Japanese Law, Jessica D. Litman

Articles

A year or two ago, one of my copyright students called to my attention a problem that seemed to him to pose unique difficulties for the copyright statute. The problem arises because of a technology called digital sampling.' Digital sampling is a new threat to performers' rights that has grown out of the combination of digital recording technology with music synthesizer technology. This threat is a very recent one. Indeed, the digital sampling problem is so new that copyright lawyers haven't yet figured out how to think about it.


Copyright, Compromise And Legislative History, Jessica D. Litman Jan 1987

Copyright, Compromise And Legislative History, Jessica D. Litman

Articles

Copyright law gives authors a "property right." But what kind of property right? Indeed, a property right in what? The answers to these questions should be apparent from a perusal of title seventeen of the United States Code-the statute that confers the "property" right.' Courts, however, have apparently found title seventeen an unhelpful guide. For the most part, they look elsewhere for answers, relying primarily on prior courts' constructions of an earlier and very different statute on the same subject. 2