Law Commons^™

The Innovation Commons, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

The Ambiguous Nature Of Copyright Users' Rights, Pascale Chapdelaine

Law Publications

In this article, I investigate the nature of exceptions to copyright infringement or users' rights. Are exceptions to copyright infringement rights or privileges? Are they mandatory? While copyright users' rights and interests have triggered interest and debate amongst scholars, relatively less attention has been given to defining their precise nature, and on the consequences of the main characteristics of exceptions to copyright infringement on copyright law and policy. I examine the interplay between the users' rights set out in the Copyright Act and how they can be altered or overridden by non-negotiated standard end-user agreements and TPMs. To this end, …

Parody As Brand, Stacey Dogan, Mark Lemley

Faculty Scholarship

Courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. The problem is particularly severe with respect to parodies that are used to brand products, a growing category. The doctrinal tools that generally protect expressive parodies often don't apply to brand parodies. Our goal in this paper is to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite courts’ increasing attention to speech interests in recent years, the law’s treatment of parody …

The Three-Step Test Revisited: How To Use The Test’S Flexibility In National Copyright Law, Christophe Geiger, Daniel Gervais, Martin Senftleben

Joint PIJIP/TLS Research Paper Series

The first version of the three-step test emerged at the 1967 Stockholm Conference for the Revision of the Berne Convention. With the inclusion of versions of the test in the TRIPS Agreement of April 1994, the two WIPO “Internet” treaties of December 1996, the more recent Beijing Treaty on Audiovisual Performances of June 24, 2012, and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (VIP Treaty) of June 27, 2013, the test has taken on the central function of allowing and enabling tailor-made solutions at the national level. …

The Regressing Progress Clause: Rethinking Constitutional Indifference To Harmful Content In Copyright, Ned Snow

Faculty Publications

The Constitution's Progress Clause purports to restrict Congress's copyright power to works that "promote the Progress of Science and useful Arts." For most of the past two centuries, this Clause has set a minimal content-based standard for copyright eligibility. It denied protection for a work whose content did not rise to the level of useful knowledge, in that the work either lacked compositional value or portrayed an immoral or unlawful subject matter. As evidenced by judicial and scholarly writings, this construction of the Progress Clause was consistent with the 1903 decision in Bleistein v. Donaldson Lithographing Co., where the Court …

Innovation, Ip Rights, And Anticompetitive Exclusion, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses …

The Lanham Act And Why Studios Are Right In Being Cautious, Devan Orr

Library Staff Publications

No abstract provided.

Overlapping Intellectual Property Doctrines: Election Of Rights Versus Selection Of Remedies, Laura A. Heymann

Faculty Publications

Overlaps exist across various doctrines in federal intellectual property law. Software can be protected under both copyright law and patent law; logos can be protected under both copyright law and trademark law. Design patents provide a particular opportunity to consider the issue of overlap, as an industrial design that qualifies for design patent protection might also, in particular circumstances, qualify for copyright protection as well as function as protectable trade dress.

When an overlap issue arises—that is, when an intellectual property rights holder asserts rights under more than one doctrine—the question then becomes how courts should respond. One response, of …

Intellectual Property Reform In Colombia: Future Colombian Copyright Legislation Must Not Place Overly Restrictive Burdens On Internet Service Providers That Unnecessarily Restrict Access To Information And Freedom Of Expression Of The People Of Colombia, Glushko-Samuelson Intellectual Property Clinic, Andrés Izquierdo, Fundación Karisma, Bogotá, Colombia

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Copyright In Libraries: 21st Century Challenges...And Opportunities, James S. Heller

Library Staff Publications

No abstract provided.

The Georgia State University Copyright Case (Cambridge University Press V. Becker) And What It Means For Librarians, Judson L. Strain

Faculty Scholarship – Library Science

The Federal District Court in the Georgia State University copyright case (Cambridge University Press v Becker) constructed a carefully defined, but expansive Fair Use “safe harbor”. Academic libraries and not-for-profit educational institutions can use this “safe harbor” to make copies of copyright-protected materials and distribute them to students in a carefully controlled manner. The decision requires safeguards to help ensure that copies do not get disseminated beyond their intended audience. It also gives more flexibility in cases where publishers do not make smaller excerpts readily available.

The Georgia State decision has been reported as allowing up to 10%,or …

Intellectual Property Reform In Colombia: The Colombian Legislature Must Consider Local And International Conventions And Pass Balanced Copyright Legislation That Preserves The Fundamental Rights Of All Colombians, Glushko-Samuelson Intellectaul Property Clinic, Andrés Izquierdo, Fundación Karisma, Bogotá, Colombia

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Deconstructing And Reconstructing Hot News: Toward A Functional Approach, Jeffrey L. Harrison, Robyn Shelton

UF Law Faculty Publications

Hot news is factual, time-sensitive information ranging from baseball scores to the outbreak of war. In recent years, hot news has found its own niche among legal scholars and courts. When deconstructed, though, hot news is simply information and, like most information, it has a public good character. The problem ultimately is that news is non-excludable and non-rivalrous – discoverers or creators of hot news cannot exclude others from using the news and hot news is not destroyed when used. This means it may be produced at levels that are less than optimal.

The critical element in hot news is …

Crossing The Line?: Copyright For Libraries, Frederick W. Dingledy

Library Staff Publications

No abstract provided.

Post-Sale And Related Distribution Restraints Involving Ip Rights, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Reclaiming Copyright From The Outside In: What The Downfall Hitler Meme Means For Transformative Works, Fair Use, And Parody, Aaron Schwabach

Faculty Scholarship

¶Continuing advances in consumer information technology have made video editing, once difficult, into a relatively simple matter. The average consumer can easily create and edit videos, and post them online. Inevitably many of these posted videos incorporate existing copyrighted content, raising questions of infringement, derivative versus transformative use, fair use, and parody.¶ ¶This article looks at several such works, with its main focus on one category of examples: the Downfall Hitler meme. Downfall Hitler videos take as their starting point a particular sequence - Hitler's breakdown rant - from the 2004 German film Der Untergang [Downfall in the US]. The …

Selected Resources On Copyright Law, Leonard Klein

Research Guides

This research guide provides specialized primary and secondary sources on copyright law, including specialized reporters on copyright law, interactive tutorials, and websites.

How To Kill Copyright: A Brute-Force Approach To Content Creation, Kirk Sigmon

Cornell Law Library Prize for Exemplary Student Research Papers

No abstract provided.

Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet

U.S. Supreme Court Briefs

No abstract provided.

Intellectual Property Misuse, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Harm To Competition Or Innovation, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Complementary Products And Processes - The Law Of Tying, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Unauthorized Televised Debate Footage In Political Campaign Advertising: Fair Use And The Dmca, Susan Park

Management Faculty Publications and Presentations

No abstract provided.

Fair Use And Education: The Way Forward, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

The ability to make reasonable fair use of copyrighted material is both economically and culturally important to the enterprise of education. No other feature of copyright laws offers educators access of the same potential scope. In asserting fair use, teachers, librarians, and others cannot rely on a claim of "economic exceptionalism, "for which there is no clear basis in U.S. copyright law. Nor can they expect to arrive at satisfactory shared understandings with copyright owners. Instead, they should seek to take advantage of current trends in copyright case law, including the marked trend toward preferring uses that are "transformative," where …

Book Review: "Die Gemeinfreiheit: Begriff, Funktion, Dogmatik (The Public Domain: Concept, Function, Dogmatics)" By Alexander Peukert, Marketa Trimble

Scholarly Works

The reviewer considers a recent book by Alexander Peukert, the professor of civil and commercial law who specializes in international intellectual property law at Goethe University in Frankfurt am Main, Germany. Peukert has devoted the book to defining the limits of the public domain – the realm of intellectual activity in which works are free for anyone to use because the works are not protected by intellectual property rights, are protected but the protection has expired, are subject to an exception to the rights under the law, or are unprotected because the owner of the rights chooses not to enforce …

Sight And Sound In The Legal Writing Classroom: Engaging Students Through Use Of Contemporary Issues, Karin M. Mika

Law Faculty Articles and Essays

Using the Fair Use Act as the basis of a research problem done in conjunction with YouTube music videos presents a variety of ways to demonstrate the range of situations in which the Fair Use Act might apply. Karin Mika discusses ways to force students to think in depth about various scenarios while comparing and contrasting them. As an example, when comparing two similar musical compositions using a Fair Use factor analysis, one need only concentrate on the notes and the various choruses in the songs. However, when combining a song with a video, the nature of the composition changes. …

First Sale Victory: Kirtsaeng V. Wiley, Laura Burtle

Selections from the University Library Blog

No abstract provided.

Access Copyright & Technology: Legal And Policy Issues In Education, Lisa Di Valentino

FIMS Presentations

Access Copyright is a collective organization representing the
copyright interests of publishers and creators. The collective offers
copyright licences that allow certain limited uses of works in the
collective's repertoire. The use of collective licences as part of
copyright management policy was common in post-secondary education
administration until 2010, when many universities opted out of a
contractual relationship with Access Copyright.

The growing movement towards online open access publishing and
Creative Commons public licensing has made information more widely
available without requiring payment and with fewer restrictions on
use. The addition of education to the list of fair dealing purposes …

Online Copyright Protection And Innovation International Experiences And Implications To China, Dexin Tian, Chin-Chung Chao

Communication Faculty Publications

Purpose – This study aims to explore the policy-making mechanism of the Organisation for Economic Co-operation and Development (OECD) on innovation and the US practice in identifying policies on online copyright protection and innovation. The research findings provide valuable implications for emerging economies like China.

Design/methodology/approach – For data collection, this study adopted field observation of online interactions. Guided by the democratic paradigm of the civil society, state, and market and the theory of the government’s roles as a broker, advocator, and facilitator, thematic analysis was applied to analyze the 150 purposively selected comments of US internet stakeholders for emerging …

The Top Three Copyright Cases Of 2012, James Gibson

Law Faculty Publications

In my last entry in this series, I examined three important patent law cases from 2012 – one at the Supreme Court level, one at the appellate level, and one at the trial court level. I’ll now do the same thing with regard to copyright cases.

My Supreme Court choice is Golan v. Holder, in which the Court upheld a statute that restored U.S. copyright protection to certain foreign works, thus removing them from the public domain. Such works had lost their protection – or had never acquired it in the first place – because of their failure to comply …