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From Hypatia To Victor Hugo To Larry And Sergey: ‘All The World's Knowledge’ And Universal Authors’ Rights – The 2012 British Academy Law Lecture, Jane C. Ginsburg Jan 2013

From Hypatia To Victor Hugo To Larry And Sergey: ‘All The World's Knowledge’ And Universal Authors’ Rights – The 2012 British Academy Law Lecture, Jane C. Ginsburg

Faculty Scholarship

Access to ‘all the world’s knowledge’ is an ancient aspiration; a less venerable, but equally vigorous, universalism strives for the borderless protection of authors’ rights. Late 19th-century law and politics brought us copyright universalism; 21st-century technology may bring us the universal digital library. But how can ‘all the world’s knowledge’ be delivered, on demand, to users anywhere in the world (with Internet access), if the copyrights of the creators and publishers of many of those works are supposed to be enforceable almost everywhere in the world? Does it follow that the universal digital library of the near future ...


Comments On Alrc Discussion Paper 79, Copyright And The Digital Economy, June M. Besek, Jane C. Ginsburg, Philippa Loengard Jan 2013

Comments On Alrc Discussion Paper 79, Copyright And The Digital Economy, June M. Besek, Jane C. Ginsburg, Philippa Loengard

Faculty Scholarship

We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated "fair use" type exception in Australia, and other related issues.

The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot ...


The Tragedy Of The Anticommons: A Concise Introduction And Lexicon, Michael Heller Jan 2013

The Tragedy Of The Anticommons: A Concise Introduction And Lexicon, Michael Heller

Faculty Scholarship

This article gives a concise introduction to the ‘tragedy of the anticommons.’ The anticommons thesis is simple: when too many people own pieces of one thing, nobody can use it. Usually, private ownership creates wealth. But too much ownership has the opposite effect – it leads to wasteful underuse. This is a free market paradox that shows up all across the global economy. If too many owners control a single resource, cooperation breaks down, wealth disappears, and everybody loses. Conceptually, underuse in an anticommons mirrors the familiar problem of overuse in a ‘tragedy of the commons.’ The field of anticommons studies ...


Copyright 1992-2012: The Most Significant Development, Jane C. Ginsburg Jan 2013

Copyright 1992-2012: The Most Significant Development, Jane C. Ginsburg

Faculty Scholarship

On the occasion of the twentieth anniversary of the Fordham Intellectual Property Law & Policy Conference, its organizer, Professor Hugh Hansen, planned a session on “U.S. Copyright Law: Where Has It Been? Where Is It Going?” and asked me to look back over the twenty years since the conference’s inception in order to identify the most important development in copyright during that period. Of course, the obvious answer is “the Internet,” or “digital media,” whose effect on copyright law has been pervasive. I want to propose a less obvious response, but first acknowledge that digital media and communications have ...


Exceptional Authorship: The Role Of Copyright Exceptions In Promoting Creativity, Jane C. Ginsburg Jan 2013

Exceptional Authorship: The Role Of Copyright Exceptions In Promoting Creativity, Jane C. Ginsburg

Faculty Scholarship

It has been suggested that today’s authors need copyright exceptions and limitations more than they need exclusive rights. I will first test the proposition by examining what one might call authorship-oriented exceptions, from ‘fair abridgement’ in early English cases to the original meaning of ‘transformative use’ in the U.S. fair use doctrine. All of these exceptions trained on the promotion of creativity by allowing authors to make reasonable borrowings from old works in the creation of new ones. I conclude that both today’s assemblers of ‘remixes’ and yesterday’s traditional creators of works of entertainment or scholarship ...


"With Untired Spirits And Formal Constancy": Berne-Compatibility Of Formal Declaratory Measures To Enhance Title-Searching, Jane C. Ginsburg Jan 2013

"With Untired Spirits And Formal Constancy": Berne-Compatibility Of Formal Declaratory Measures To Enhance Title-Searching, Jane C. Ginsburg

Faculty Scholarship

Formalities are back in fashion. Their acolytes fall into two camps, reflecting their different objectives. For formalities, which we shall define as conditions on the existence or enforcement of copyright, can divest authors of their rights, or instead enhance authors’ exploitation of their works by alerting their audiences to the authors’ claims. For one camp, formalities’ confiscatory consequences, once perceived as barbaric, are to be celebrated. A second camp enlists formalities to populate not the public domain, but the public record. Notice, registration and recordation, as declaratory measures, inform the public of the author’s claims and, by facilitating rights-clearance ...


A New Look At Patent Quality: Relating Patent Prosecution To Validity, Ronald J. Mann, Marian Underweiser Jan 2012

A New Look At Patent Quality: Relating Patent Prosecution To Validity, Ronald J. Mann, Marian Underweiser

Faculty Scholarship

The article uses two hand‐collected data sets to implement a novel research design for analyzing the precursors to patent quality. Operationalizing patent “quality” as legal validity, the article analyzes the relation between Federal Circuit decisions on patent validity and three sets of data about the patents: quantitative features of the patents themselves, textual analysis of the patent documents, and data collected from the prosecution histories of the patents. The article finds large and statistically significant relations between ex post validity and both textual features of the patents and ex ante aspects of the prosecution history (especially prior art submissions ...


Taking Innovation Seriously: Antitrust Enforcement If Innovation Mattered Most, Tim Wu Jan 2012

Taking Innovation Seriously: Antitrust Enforcement If Innovation Mattered Most, Tim Wu

Faculty Scholarship

Now is a particularly important time to consider the relationship between antitrust and innovation. Both US and European antitrust enforcement authorities are taking a look at the state of competition on the Internet, an inquiry that puts into clear focus the need for antitrust to take seriously its relationship with innovation policy.

How would the enforcement of antitrust look if the promotion of innovation were its paramount concern? I present 3 suggestions: (1) law enforcement would be primarily concerned with the exclusion of competitors. (2) A competition law centered on promoting innovation would take very seriously its oversight of "innovation ...


Technological Innovation, International Competition, And The Challenges Of International Income Taxation, Michael J. Graetz, Rachael Doud Jan 2012

Technological Innovation, International Competition, And The Challenges Of International Income Taxation, Michael J. Graetz, Rachael Doud

Faculty Scholarship

Because of the importance of technological innovation to economic growth, nations strive to stimulate and attract the research and development (“R&D”) that leads to that innovation and to make themselves hospitable environments for the holding of intellectual property (“IP”). Tax policies have taken center stage in their efforts to accomplish these goals and to capture a share of the income from technological innovations. Designing cost-effective methods of supporting technological innovations has, however, become substantially more difficult as the world economy has become more interconnected. Where R&D is performed and where income is earned change in response to the ...


Moral Rights In The Us: Still In Need Of A Guardian Ad Litem, Jane C. Ginsburg Jan 2012

Moral Rights In The Us: Still In Need Of A Guardian Ad Litem, Jane C. Ginsburg

Faculty Scholarship

Over ten years ago in the Cardozo Arts and Entertainment Law Journal, I inquired whether authors’ “moral rights” had come of (digital) age in the US. Ever-hopeful at that time, I suggested that then-recent legislation enacted to enable the copyright law to respond to the challenges of digital media might, in addition to its principal goal of securing digital markets for works of authorship, also provide new means to protect authors’ interests in receiving attribution for their works and in safeguarding their integrity. The intervening years’ developments, however, indicate that, far from achieving their majority, US authors’ moral rights remain ...


Speaking Of Moral Rights, A Conversation, Jane C. Ginsburg, Eva E. Subotnik Jan 2012

Speaking Of Moral Rights, A Conversation, Jane C. Ginsburg, Eva E. Subotnik

Faculty Scholarship

A transcribed conversation about moral rights in the digital age — in respect of some of the legal and technological developments that have occurred since Professor Jane Ginsburg's 2001 essay, Have Moral Rights Come of (Digital) Age in the United States?, 19 Cardozo Arts & Ent. L. J. 9 (2001).


Rules For Growth: Promoting Innovation And Growth Through Legal Reform, Robert E. Litan, Yochai Benkler, Henry N. Butler, John Henry Clippinger, Robert Cook-Deegan, Robert Cooter, Aaron Edlin, Nicole Garnett, Ronald J. Gilson, Oliver Goodenough, Gillian Hadfield, Mark Lemley, Frank Partnoy, George Priest, Larry E. Ribstein, Charles F. Sabel, Peter Schuck, Hal Scott, Robert E. Scott, Alex Stein, Victoria Stodden, John E. Tyler, Alan D. Viard, Benjamin Wittes Jan 2011

Rules For Growth: Promoting Innovation And Growth Through Legal Reform, Robert E. Litan, Yochai Benkler, Henry N. Butler, John Henry Clippinger, Robert Cook-Deegan, Robert Cooter, Aaron Edlin, Nicole Garnett, Ronald J. Gilson, Oliver Goodenough, Gillian Hadfield, Mark Lemley, Frank Partnoy, George Priest, Larry E. Ribstein, Charles F. Sabel, Peter Schuck, Hal Scott, Robert E. Scott, Alex Stein, Victoria Stodden, John E. Tyler, Alan D. Viard, Benjamin Wittes

Faculty Scholarship

The United States economy is struggling to recover from its worst economic downturn since the Great Depression. After several huge doses of conventional macroeconomic stimulus – deficit-spending and monetary stimulus – policymakers are understandably eager to find innovative no-cost ways of sustaining growth both in the short and long runs.

In response to this challenge, the Kauffman Foundation convened a number of America’s leading legal scholars and social scientists during the summer of 2010 to present and discuss their ideas for changing legal rules and policies to promote innovation and accelerate U.S. economic growth. This meeting led to the publication ...


Making Coasean Property More Coasean, Thomas W. Merrill, Henry E. Smith Jan 2011

Making Coasean Property More Coasean, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

In his pioneering work on transaction costs, Ronald Coase presupposed a picture of property as a bundle of government-prescribed use rights. This picture is not only not essential to what Coase was trying to do, but its limitations emerge when we apply Coase’s central insights to analyze the structure of property itself. This leads to what we term the Coase Corollary: in a world of zero transaction costs the nature of property does not matter to allocative efficiency. But as with the Coase Theorem itself, the real point is the implication for a positive transaction cost world: we need ...


European Copyright Code – Back To First Principles (With Some Additional Detail), Jane C. Ginsburg Jan 2011

European Copyright Code – Back To First Principles (With Some Additional Detail), Jane C. Ginsburg

Faculty Scholarship

The "Wittem Group" of copyright scholars has proposed a "European Copyright Code," to "serve as an important reference tool for future legislatures at the European and national levels." Because, notwithstanding twenty years of Directives and a growing ECJ caselaw, copyright law in EU Member States continues to lack uniformity, the Wittem Group’s endeavor should be welcomed, at least as a starting point for reflection on the desirable design of an EU copyright regime. Whether or not the proposed Code succeeds in influencing national or Community legislation, it does offer an occasion to consider the nature of the rights that ...


When The Wto Works, And How It Fails, Anu Bradford Jan 2010

When The Wto Works, And How It Fails, Anu Bradford

Faculty Scholarship

This Article seeks to explain when an international legal framework like the WTO can facilitate international cooperation and when it fails to do so. Using an empirical inquiry into different agreements that the WTO has attempted to facilitate – specifically intellectual property and antitrust regulation – it reveals more general principles about when and why the WTO can facilitate agreement in some situations and not others. Comparing the successful conclusion of the TRIPs Agreement and the failed attempts to negotiate a WTO antitrust agreement reveal that international cooperation is likely to emerge when the interests of powerful states are closely aligned and ...


"The Sole Right ... Shall Return To The Authors": Anglo-American Authors' Reversion Rights From The Statute Of Anne To Contemporary U.S. Copyright, Lionel A.F. Bently, Jane C. Ginsburg Jan 2010

"The Sole Right ... Shall Return To The Authors": Anglo-American Authors' Reversion Rights From The Statute Of Anne To Contemporary U.S. Copyright, Lionel A.F. Bently, Jane C. Ginsburg

Faculty Scholarship

This study of author’s reversion rights begins with the Statute of Anne and the debates that led up to the adoption of section 11, which vested in the author a second fourteen-year term, provided he or she was still alive at the end of the initial fourteen-year term. The study then will address the impact of the author’s reversion right on publishing practice and authors’ welfare in the United Kingdom through the eighteenth century to the demise of the reversion right in 1814. We will suggest that the apparent lack of use of the reversion right by authors ...


The Us Experience With Copyright Formalities: A Love/Hate Relationship, Jane C. Ginsburg Jan 2010

The Us Experience With Copyright Formalities: A Love/Hate Relationship, Jane C. Ginsburg

Faculty Scholarship

Copyright formalities – conditions precedent to the existence or enforcement of copyright, such as provision of information about works of authorship that will put the public on notice as to a work’s protected status and its copyright ownership, or deposit of copies of the work for the national library or other central authority, or local manufacture of copies of works of foreign origin – have performed a variety of functions in US copyright history. Perhaps of most practical importance today, formalities predicate to the existence or enforcement of copyright can serve to shield large copyright owners who routinely comply with formalities ...


A New Look At Patent Quality: Relating Patent Prosecution To Validity, Ronald J. Mann, Marian Underweiser Jan 2010

A New Look At Patent Quality: Relating Patent Prosecution To Validity, Ronald J. Mann, Marian Underweiser

Faculty Scholarship

The paper uses two hand-collected datasets to implement a novel research design for analyzing the precursors to patent quality. Operationalizing patent "quality" as legal validity, the paper analyzes the relation between Federal Circuit decisions on patent validity and three sets of data about the patents: quantitative features of the patents themselves, textual analysis of the patent documents, and data collected from the prosecution histories of the patents. The paper finds large and statistically significant relations between ex post validity and both textual features of the patents and ex ante aspects of the prosecution history (especially prior art submissions and the ...


User-Generated Content Sites And Section 512 Of The Us Copyright Act, Jane C. Ginsburg Jan 2010

User-Generated Content Sites And Section 512 Of The Us Copyright Act, Jane C. Ginsburg

Faculty Scholarship

This book chapter considers the liability of entrepreneurs of ‘user-generated content’ (UGC) sites. These immensely popular fora, such as YouTube and My Space, enable their participants to post and view a great variety of content, not all of it in fact generated by the posting user. The legislative compromise worked out between telecommunications providers and content owners in the 1998 ‘Digital Millennium Copyright Act’ provides the statutory framework, at once insulating the operators of UGC sites from debilitating copyright sanctions, while still affording meaningful relief to copyright owners. The statutory criteria to qualify for the section 512(c) safe harbor ...


Contracts, Orphan Works, And Copyright Norms: What Role For Berne And Trips?, Jane C. Ginsburg Jan 2009

Contracts, Orphan Works, And Copyright Norms: What Role For Berne And Trips?, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses the extremes of private ordering, and the extent to which the principal multilateral copyright instruments, the Berne Convention and the TRIPs Accord, limit the range of State responses to the problems encountered at the far ends of the copyright-contract spectrum. At one end, we encounter private ordering at its most aggressive, in which private parties enter into agreements (or, more likely, the stronger party coerces the weaker parties, who may be mass market consumers) to protect subject matter or rights excluded from the ambit of copyright's exclusivity. At the other end, the difficulties arise not from ...


Accession And Original Ownership, Thomas W. Merrill Jan 2009

Accession And Original Ownership, Thomas W. Merrill

Faculty Scholarship

Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide variety of areas, from determining rights to baby animals and growing crops to determining ownership of derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information cost burdens on society. But ...


Subsidizing Creativity Through Network Design: Zero Pricing And Net Neutrality, Robin S. Lee, Tim Wu Jan 2009

Subsidizing Creativity Through Network Design: Zero Pricing And Net Neutrality, Robin S. Lee, Tim Wu

Faculty Scholarship

Today, through historical practice, there exists a de facto ban on termination fees – also referred to as a “zero-price” rule (Hemphill, 2008) – which forbids an Internet service provider from charging an additional fee to a content provider who wishes to reach that ISP’s customers. The question is whether this zero-pricing structure should be preserved, or whether carriers should be allowed to charge termination fees and engage in other practices that have the effect of requiring payment to reach users. This paper begins with a defense of the de facto zero-price rule currently in existence. We point out that the ...


Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg Jan 2008

Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg

Faculty Scholarship

The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for "fair use." In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of "copy;" the reach of the distribution right on "distribute copies" and "transfer of ownership;" the range of the public performance right on "public" and "perform." Entrepreneurs and users ...


Recent Developments In Us Copyright Law: Part I – "Orphan" Works, Jane C. Ginsburg Jan 2008

Recent Developments In Us Copyright Law: Part I – "Orphan" Works, Jane C. Ginsburg

Faculty Scholarship

This Comment, after a brief review of the nature of the orphan works problem and prior attempts to resolve it in the US, will analyze the current bills' provisions, both with respect to the limitation of remedies that constitutes the proposals' centerpiece, and to the conditions required to qualify for the limitation. I will also compare the US proposals with current European initiatives, and will assess the compatibility of the US proposals with international treaty norms, as well as the cross-border consequences of inconsistent US and EU orphan works regimes. I will conclude with some suggestions for amending the US ...


Tolerated Use, Tim Wu Jan 2008

Tolerated Use, Tim Wu

Faculty Scholarship

Tolerated use is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated use of copyrighted works. Such patterns of mass infringement have occurred before in copyright history, though perhaps not on the same scale, and have usually been settled with the use of special laws, called compulsory licensing regimes, more familiar to non-copyright scholars as liability rules. This paper suggests that, in present times, a different and slightly unusual solution to the issue of widespread illegal use is emerging – an opt-in system for copyright holders, that is in property terms a rare species of ex ...


Of Mutant Copyrights, Mangled Trademarks, And Barbie's Beneficence: The Influence Of Copyright On Trademark Law, Jane C. Ginsburg Jan 2007

Of Mutant Copyrights, Mangled Trademarks, And Barbie's Beneficence: The Influence Of Copyright On Trademark Law, Jane C. Ginsburg

Faculty Scholarship

In Dastar Corp. v. Twentieth Century Fox Film Corp. Justice Scalia colorfully warned against resort to trademarks law to achieve protections unattainable by copyright, lest these claims generate "a species of mutant copyright law that limits the public's 'federal right to "copy and to use,"' expired copyrights." The facts of that controversy, in which the claimant appeared to be invoking time-unlimited trademark protection to end-run the exhausted (unrenewed) copyright term in a motion picture, justified the apprehension that unbridled trademark rights might stomp, Godzilla-like, over more docile copyright prerogatives. Unfortunately, in the Court's eagerness to forestall Darwinian disaster ...


On Copyright's Authorship Policy, Tim Wu Jan 2007

On Copyright's Authorship Policy, Tim Wu

Faculty Scholarship

It has long been the stated aspiration of copyright to make authors the masters of their own destiny. Yet more often than not, the real subject of American copyright is distributors, book publishers, record labels, broadcasters, and others, who control the rights, bring the lawsuits, and take copyright as their industries' 'life-sustaining protection.' This paper offers a new theory and defense of the role of authors and authorial copyright in the copyright system. I argue that the device of making authors rights-bearers can seed new modes of production in the industries under copyright. Rights-bearing authors can, in other words, help ...


Software Patents, Incumbents, And Entry, John R. Allison, Abe Dunn, Ronald J. Mann Jan 2007

Software Patents, Incumbents, And Entry, John R. Allison, Abe Dunn, Ronald J. Mann

Faculty Scholarship

Software patents have been controversial since the days when "software" referred to the crude programs that came free with an IBM mainframe. Different perspectives have been presented in judicial, legislative, and administrative fora over the years, and the press has paid as much attention to this issue as it has to any other intellectual property topic during this time. Meanwhile, a software industry developed and has grown to a remarkable size, whether measured by revenues or profitability, number of firms or employees, or research expenditures. The scope of software innovation has become even broader, as an increasing number of devices ...


The Pros And Cons Of Strengthening Intellectual Property Protection: Technological Protection Measures And Section 1201 Of The Us Copyright Act, Jane C. Ginsburg Jan 2007

The Pros And Cons Of Strengthening Intellectual Property Protection: Technological Protection Measures And Section 1201 Of The Us Copyright Act, Jane C. Ginsburg

Faculty Scholarship

The recent announcement (in late November 2006) of the Copyright Office's triennial rulemaking to identify "classes of works" exempt from the § 1201(a)(1) prohibition on circumvention of a technological measure controlling access to copyrighted works in part occasions this assessment of the judicial and administrative construction of this chapter of the 1998 Digital Millennium Copyright Act. The current Rulemaking appears more innovative than its predecessors, particularly in defining the exempted class of works by reference to the characteristics of the works' users. Copyright owner overreaching or misuse may also underlie the relative vigor of this Rulemaking: if producers ...


The Disputed Quality Of Software Patents, John R. Allison, Ronald J. Mann Jan 2007

The Disputed Quality Of Software Patents, John R. Allison, Ronald J. Mann

Faculty Scholarship

We analyze the characteristics of the patents held by firms in the software industry. Unlike prior researchers, we rely on examination of the individual patents to determine which patents involve software inventions. This method of identifying the relevant patents is more laborious than the methods that previous scholars have used, but it produces a dataset from which we can learn more about the role of patents in the software industry. In general, we find that the patents computer technology firms obtain on software inventions have more prior art references, claims, and forward citations than the patents the same firms obtain ...