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Full-Text Articles in Law

A Universal Copyright Fund: A New Way To Bridge The Copyright Divide, Kung-Chung Liu, Haochen Sun Dec 2006

A Universal Copyright Fund: A New Way To Bridge The Copyright Divide, Kung-Chung Liu, Haochen Sun

Research Collection School Of Law

The ever-increasing digitization of works, along with the deployment of technical measures to protect such works and the expansive use of the Internet, further exacerbate the divide between the IP-rich and IP-poor countries in their ability to benefit from such works. It is suggested by this paper that to borrow from experiences on how the telecommunications world provides universal service to each and every household at affordable prices, and to endeavor to shed some new light on how the copyright divide can be narrowed. It is structured in three parts. The first part will examine the past and future failure ...


Google The Gozerian And Fair Use Slimed: Copyright Again In The Technocrat's Den, Brian Sites Oct 2006

Google The Gozerian And Fair Use Slimed: Copyright Again In The Technocrat's Den, Brian Sites

Faculty Scholarship

This article considers the fair use doctrine as it applies to Google's Library Search Project and both predicts and advocates for a finding of fair use. Part I briefly reviews the past by considering the pertinent history of the fair use doctrine. It also explains the details of the current suit over Google's Library Project. Part II moves on to consider the current state of fair use analysis by reviewing 110 fair use cases and conducting simple statistical analyses. It then explains and applies the fair use doctrine to Google's project. Part III considers cases frequently compared ...


Design Piracy And Self-Regulation: The Fashion Originators' Guild Of America, 1932-1941, Sara B. Marcketti, Jean L. Parsons Jul 2006

Design Piracy And Self-Regulation: The Fashion Originators' Guild Of America, 1932-1941, Sara B. Marcketti, Jean L. Parsons

Apparel, Events and Hospitality Management Publications

The concept of copying or “knocking off” another designer's idea is an accepted practice in the apparel industry. Legally, designers and manufacturers have had tenuous success in proving their work “original and novel” as required by U.S. patent laws, and copyright laws often do not apply to apparel. The speed of fashion change and reliance on repetition of ideas at various price points makes design protection difficult and controversial. Historically, arguments for and against measures to control copying of apparel most frequently divided along price lines. The Fashion Originators' Guild of America (FOGA, 1932-1941) developed one of the ...


Fair Use In Independent Documentary Filmmaking, Margaret Hennefeld Jun 2006

Fair Use In Independent Documentary Filmmaking, Margaret Hennefeld

CUREJ - College Undergraduate Research Electronic Journal

Copyright law's "fair use" doctrine aims to protect artists' First Amendment-informed rights by establishing the legality of their non-licensed citation or incorporation of copyrighted material of another author's copyrighted work into their own. However, ambiguities surrounding the function and extent of fair use, and the sheer legal expenses of clarifying these uncertainties on a case-by-case basis, frequently deny authors their First Amendment-based fair use rights. In the context of independent documentary filmmaking, a rigidly structured and highly expensive rights clearance culture generates many ethical ambiguities and thereby functions as a significant form of censorship.


The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski Jan 2006

The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski

Faculty Publications

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.

The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and ...


The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre Mulligan, Aaron K. Perzanowski Jan 2006

The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre Mulligan, Aaron K. Perzanowski

Faculty Publications

Late in 2005, Sony BMG released millions of Compact Discs containing digital rights management technologies that threatened the security of its customers' computers and the integrity of the information infrastructure more broadly. This Article aims to identify the market, technological, and legal factors that appear to have led a presumably rational actor toward a strategy that in retrospect appears obviously and fundamentally misguided.

The Article first addresses the market-based rationales that likely influenced Sony BMG's deployment of these DRM systems and reveals that even the most charitable interpretation of Sony BMG's internal strategizing demonstrates a failure to adequately ...


A Technological Theory Of The Arms Race, Lee B. Kovarsky Jan 2006

A Technological Theory Of The Arms Race, Lee B. Kovarsky

Faculty Scholarship

Although the 'technological arms race' has recently emerged as a vogue-ish piece of legal terminology, scholarship has quite conspicuously failed to explore the phenomenon systematically. What are 'technological' arms races? Why do they happen? Does the recent spike in scholarly attention actually reflect their novelty? Are they always inefficient? How do they differ from military ones? What role can legal institutions play in slowing them down? In this Article I seek to answer these questions. I argue that copyright enforcement and self-help represent substitutable tactics for regulating access to expressive assets, and that the efficacy of each tactic depends on ...


Rankings, Reductionism, And Responsibility, Frank Pasquale Jan 2006

Rankings, Reductionism, And Responsibility, Frank Pasquale

Faculty Scholarship

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment ...


Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale Jan 2006

Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale

Faculty Scholarship

The fair use defense in copyright law shields an intellectual commons of protected uses of copyrighted material from infringement actions. In determining whether a given use is fair, courts must assess the new use's potential effect on the market for the copyrighted work. Fair use jurisprudence too often fails to address the complementary, network, and long-range effects of new technologies on the market for copyrighted works. These effects parallel the indirect, direct, and option values of biodiversity recently recognized by environmental economists. Their sophisticated methods for valuing natural resources in tangible commons can inform legal efforts to address the ...


Legal Protocols And Practices For Managing Copyright In Electronic Theses, Mark Perry, Paula Callan Jan 2006

Legal Protocols And Practices For Managing Copyright In Electronic Theses, Mark Perry, Paula Callan

Law Publications

At Queensland University of Technology (QUT) in Brisbane Australia, PhD and Masters by Research candidates are required to deposit both print and digital copies of their theses and dissertations. The fulltext of these digital theses is then made freely available online via the Australian Digital Thesis (ADT) collection. Management of copyright issues has been a major headache and workload problem for the Library: there are many parties involved in the deposit process, and the lack of a common understanding about the rights and responsibilities of the various stakeholders has made the process very complex and time consuming. The response of ...


Fair Use And The Fairer Sex: Gender, Feminism, And Copyright Law, Ann Bartow Jan 2006

Fair Use And The Fairer Sex: Gender, Feminism, And Copyright Law, Ann Bartow

Law Faculty Scholarship

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 ...


The “Rootkit Debacle”: The Latest Chapter In The Story Of The Recording Industry And The War On Music Piracy, Megan M. La Belle Jan 2006

The “Rootkit Debacle”: The Latest Chapter In The Story Of The Recording Industry And The War On Music Piracy, Megan M. La Belle

Scholarly Articles and Other Contributions

In the age of digital music, illicit copying or burning of CDs is a rampant problem that undermines the rights of copyright holders, record labels, and artists alike. The recording industry has attempted to address this problem by manufacturing and releasing CDs with various types of digital rights management (DRM) technologies. Most recently, Sony BMG introduced CDs containing DRM software that was intended, among other things, to limit the number of copies of the CD the user could make, and prevent the user from sharing the content of the CD on peer-to-peer networks. However, the manner in which this software ...


Why Sell What You Can License?, Contracting Around Statutory Protection Of Intellectual Property, Elizabeth I. Winston Jan 2006

Why Sell What You Can License?, Contracting Around Statutory Protection Of Intellectual Property, Elizabeth I. Winston

Scholarly Articles and Other Contributions

Historically, the transfer of goods has been through sale, a model regulated by public legislation. Increasingly, however, the transfer of goods is occurring through licensing, a model regulated by private legislation. Privately-legislated licenses - for such chattels as musical and written works and agricultural goods - are being used to circumvent publicly-legislated restrictions on intellectual property. Private legislation should not circumvent public legislation, and intellectual property owners should not be allowed to circumvent the statutory scheme for protection of intellectual property. Licenses that augment publicly-legislated protection of intellectual property support the traditional role of contracts and should be enforced. Licenses that circumvent ...


Performance, Property, And The Slashing Of Gender In Fan Fiction , Sonia K. Katyal Jan 2006

Performance, Property, And The Slashing Of Gender In Fan Fiction , Sonia K. Katyal

Faculty Scholarship

Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law - as it is owned, constituted, created, and enforced - both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost ...


Unravelling The Myth Around Open Source Licences - An Analysis From A Dutch And European Law Perspective, Lucie Guibault, Ot Van Daalen Jan 2006

Unravelling The Myth Around Open Source Licences - An Analysis From A Dutch And European Law Perspective, Lucie Guibault, Ot Van Daalen

Articles, Book Chapters, & Blogs

Open source software licences are based on two fundamental principles: the possibility for users to use the software for any purpose and the possibility to modify and redistribute it without prior authorisation from the initial developer. Some open source software licences, like the General Public Licence (GPL), also impose a corollary obligation on the licensee: to make the source code available to other developers. The idea behind this form of licensing is that when programmers can read, redistribute and modify the source code for a piece of software, the software evolves. A number of legal challenges need to be addressed ...


Copyright Lochnerism, Raymond Shih Ray Ku Jan 2006

Copyright Lochnerism, Raymond Shih Ray Ku

Faculty Publications

Part I of this essay outlines the conflict between copyright and the First amendment as well as, the complementary argument for reconciling copyright and free speech, as it has been formulated by scholars and the Supreme Court. Part II discusses what I have referred to as the Framers' copyright and the extent to which arguments based upon the Framers' intent in this area may reconcile copyright and free speech. Lastly, Part III argues that reliance upon the complementary argument to deny any role for heightened First Amendment review in copyright cases is subject to two interrelated criticisms of Lochner. By ...


One For All: The Problem Of Uniformity Cost In Intellectual Property Law, Michael W. Carroll Jan 2006

One For All: The Problem Of Uniformity Cost In Intellectual Property Law, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms.

This Article argues that reducing uniformity cost is the central problem for intellectual ...


Pervasively Distributed Copyright Enforcement, Julie E. Cohen Jan 2006

Pervasively Distributed Copyright Enforcement, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In an effort to control flows of unauthorized information, the major copyright industries are pursuing a range of strategies designed to distribute copyright enforcement functions across a wide range of actors and to embed these functions within communications networks, protocols, and devices. Some of these strategies have received considerable academic and public scrutiny, but much less attention has been paid to the ways in which all of them overlap and intersect with one another. This article offers a framework for theorizing this process. The distributed extension of intellectual property enforcement into private spaces and throughout communications networks can be understood ...


My Library: Copyright And The Role Of Institutions In A Peer-To-Peer World, Rebecca Tushnet Jan 2006

My Library: Copyright And The Role Of Institutions In A Peer-To-Peer World, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Today's technology turns every computer - every hard drive - into a type of library. But the institutions traditionally known as libraries have been given special consideration under copyright law, even as commercial endeavors and filesharing programs have begun to emulate some of their functions. This Article explores how recent technological and legal trends are affecting public and school-affiliated libraries, which have special concerns that are not necessarily captured by an end-consumer-oriented analysis. Despite the promise that technology will empower individuals, we must recognize the crucial structural role of intermediaries that select and distribute copyrighted works. By exploring how traditional libraries ...


The Saga Of A Song: Authorship And Ownership In The Case Of ‘Guantanamera’, Peter L. Manuel Jan 2006

The Saga Of A Song: Authorship And Ownership In The Case Of ‘Guantanamera’, Peter L. Manuel

Publications and Research

No abstract provided.


Digital Rights Management And The Process Of Fair Use, Timothy K. Armstrong Jan 2006

Digital Rights Management And The Process Of Fair Use, Timothy K. Armstrong

Faculty Articles and Other Publications

Producers of digital media works increasingly employ technological protection measures, commonly referred to as "digital rights management" (or "DRM") technologies, that prevent the works from being accessed or used except upon conditions the producers themselves specify. These technologies have come under criticism for interfering with the rights users enjoy under copyright law, including the right to engage in fair uses of the DRM-protected works. Most DRM mechanisms are not engineered to include exceptions for fair use, and user circumvention of the DRM may violate the Digital Millennium Copyright Act even if the use for which the circumvention occurs is itself ...


The Secret Life Of Legal Doctrine: The Divergent Evolution Of Secondary Liability In Trademark And Copyright Law, Mark Bartholomew, John Tehranian Jan 2006

The Secret Life Of Legal Doctrine: The Divergent Evolution Of Secondary Liability In Trademark And Copyright Law, Mark Bartholomew, John Tehranian

Journal Articles

The recent explosion in intellectual property litigation has witnessed increasing recourse to secondary liability theories. The courts have responded favorably to plaintiffs by enunciating substantial reinterpretations of extant principles, thereby precipitating a veritable secondary liability revolution. Numerous commentators have bemoaned this trend, contending that judicial recasting of liability rules expands intellectual property rights beyond their intended scope, thereby resulting in an overprotective regime that stifles innovation. Yet one of the most striking aspects of the secondary liability revolution has been all but ignored in the literature: While the courts have broadened the scope of secondary liability principles with respect to ...


Compulsory Licenses In Peer-To-Peer File Sharing: A Workable Solution?, Michael Botein, Edward Samuels Jan 2006

Compulsory Licenses In Peer-To-Peer File Sharing: A Workable Solution?, Michael Botein, Edward Samuels

Articles & Chapters

No abstract provided.


Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson Jan 2006

Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson

Faculty Scholarship

On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors' rights and the advent of new technologies, particularly in relation to peer-to-peer networks.

In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular ...


Refusals To Deal With Competitors By Owners Of Patents And Copyrights: Reflections On The Image Technical And Xerox Decisions, Joseph P. Bauer Jan 2006

Refusals To Deal With Competitors By Owners Of Patents And Copyrights: Reflections On The Image Technical And Xerox Decisions, Joseph P. Bauer

Journal Articles

Under the patent and copyright laws, the owner of a patent for an invention or of a copyright for a work has the right to sell, license or transfer it, to exploit it individually and exclusively, or even to decide to withhold it from the public. By contrast, under the antitrust laws, a unilateral refusal to deal may constitute an element of a violation of Section 2 of the Sherman Act, and the courts may then impose a duty on the violator to deal with others, including possibly with its actual or would-be competitors.

The central question addressed by this ...