Law Commons^™

Comment On "Lessons From Studying The International Economics Of Intellectual Property Rights", Paul Goldstein

Vanderbilt Law Review

Copyright is the "dog that didn't bark" in Keith Maskus's paper, "Lessons from Studying the International Economics of Intellectual Property Rights." Like virtually every other economic study of intellectual property and trade, the Maskus paper confines its examples and analysis to the industrial side of intellectual property-mainly patents and know-how-and leaves the authorial side-copyright-untouched. As a small step toward repairing this imbalance, and toward opening a corner of policy inquiry that has so far been largely unexamined, I would like here to make a few observations on copyright and trade in developing economies.

The regular omission of copyright from economic …

Copyright And The Perfect Curve, Julie E. Cohen

Vanderbilt Law Review

Everyone agrees that the purpose of the copyright system is to promote progress.' At the same time, though, skepticism about the law's ability to define the substance of progress runs deep within copyright case law and theory. Legal decisionmakers and scholars have quite properly doubted their own ability to evaluate artistic or literary merit, and have worried that efforts to do so would result in an inappropriately elitist and conservative standard. In addition, there is room for substantial debate about whether the metaphor of forward motion leaves out other important measures of what "progress" is or might be. This agnosticism …

Market Hierarchy And Copyright In Our System Of Free Expression, Neil W. Netanel

Vanderbilt Law Review

If trends of the past two decades persist, a vast inequality of wealth may well become a fundamental, defining characteristic of political and social life in many Western democracies, particularly the United States.' Among its potentially pernicious effects, massive wealth disparity threatens the integrity of the democratic process. Liberal democracy aspires to political equality, which demands that opportunities to acquire and assert political power be widespread and broadly distributed. Political equality does not require economic equality. But political equality may be undermined by severe disparities of wealth. Absent preventive regulation, private wealth buys political power. It enables those with greater …

The Best Things In Law Are Free?: Towards Quality Free Public Access To Primary Legal Materials In Canada, Teresa Scassa

Dalhousie Law Journal

In this article the author explores the move in several jurisdictions towards providing primary legal materials online without charge. In Canada the federal government, most provincial governments and many courts currently provide some form of online access to primary legal materials. However, this is not done in a unified, comprehensive or systematic manner. The author evaluates the "legal information institute" model as it has emerged in Australia, the United Kingdom and the United States, and considers whether such a model would be useful or workable in Canada. In the course of this assessment, the author canvasses such issues as the …

Copyright Corner: The Adoption Of Ucita In Maryland, Harvey K. Morrell

All Faculty Scholarship

In the December 1999 issue of AALL Spectrum, Charles Cronin provided a fine overview of the Uniform Computer Information Transactions Act (UCITA) and its potential impact on libraries. As he indicated, the National Conference of Commissioners on Uniform State Laws (NCCUSL) offered UCITA to several state legislatures for consideration, with Maryland and Virginia vying to become the first state to enact it. Virginia, whose legislative session began a couple of months before Maryland’s and whose process did not allow much opposition, was first across the line. However, one amendment, included near the end of the process, delayed implementation of the …

Copyright And Antitrust: The Effects Of The Digital Performance Rights In Sound Recordings Act Of 1995 In Foreign Markets, Connie C. Davis

Federal Communications Law Journal

The licensing of copyrighted nondramatic works by performance rights societies has long been recognized as a potential source of antitrust violations. In 1995, the Congress passed the Digital Performance Rights in Sound Recordings Act in an effort to deal with the licensing problems associated with nondramatic musical works. The DPRSRA created a right in sound recordings to perform the copyrighted work publicly by means of a digital audio transmission as well as establishing compulsory licensing scheme. However, the DPRSRA failed to address the problem of licensing of nondramatic works in foreign markets. This Note identifies the anticompetitive licensing scheme practiced …

Open Source Software The Success Of An Alternative Intellectual Property Incentive Paradigm, Marcus Maher

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Internet And Decisional Institutions The Structural Advantages Of Online Common Law Regulation, Thomas K. Richards

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Where Have You Gone, Fair Use: Document Delivery In The For-Profit Sector, James S. Heller

Library Staff Publications

No abstract provided.

Simultaneous Copyright And Trade Secret Claims: Can The Copyright Misuse Defense Prevent Constitutional Doublethink?, Ralph D. Clifford

Faculty Publications

As the Constitution authorizes Congress to grant copyrights, it subjects the power to a public purpose requirement. Any monopoly Congress grants must be for the purpose of “promot[ing] the progress of science and useful arts.” But one result of Congress enacting the 1976 Act is a potential conflict between the Act and this public purpose requirement. An owner of intellectual property may believe that both copyright law – which mandates disclosure – and trade secret law – which mandates secrecy – can be used simultaneously. To believe that disclosure and secrecy can coexist is doublethink as both cannot be true. …

Global Technology Protection: Moving Past The Treaty, Todd M. Rowe

Marquette Intellectual Property Law Review

This Comment examines whether the conformity achieved by international technology treaties is at the expense of utility. Specifically, the author posits that international agreements do not serve the needs of rich and poor nations alike. Instead, the author advocates for increased autonomy by claiming better solutions will be produced when nations enter bi-lateral agreements. In reaching this conclusion, the Comment analyzes the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the problems created for developing nations through global technology protections. The author uses the United States' patent, copyright, and trademark protections as an illustrative example of how successful …

The Paradoxes Of Free Software, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

This paper describes the legal structure of open source software and analyzes the likely issues to arise. A combination of copyright law and trademark law serves to permit the free distribution of open source software. The software is kept under copyright, but freely licensed under one of various open source licenses. The legal structure of open source is an elegant and robust use of intellectual property law that turns the customary use of intellectual property on its head, by using intellectual property laws, which normally are used to guard exclusive rights, to safeguard free access to and use of software. …

Copyright Law In The Digital Age: Malum In Se And Malum Prohibitum, Sheldon W. Halpern

Marquette Intellectual Property Law Review

The scale of copyright piracy has changed, allowing creative works to be distributed globally with a click of a mouse. People's attitudes towards infringing on someone else's protected work have changed as well due to the simplicity and speed of the digital infringing process. This lecture discusses how one can tailor copyright law to accommodate technological changes. First, the lecturer discusses how an act of infringement needs to be defined as malum in se rather than malum prohibitum in order for infringement to be taken seriously. The lecturer suggests that a radically different approach to some of the fundamental principles …

Square Pegs And Round Holes: Why Native American Economic And Cultural Policies And United States Intellectual Property Law Don't Fit, David B. Jordan

American Indian Law Review

No abstract provided.

Tomorrow Never Dies: The Protection Of Fictional Characters Under The Federal Trademark Dilution Act, Kristen Knudsen

Vanderbilt Journal of Entertainment & Technology Law

A number of different protections are available for fictional characters under intellectual property law. These have traditionally included copyright, trademark, and unfair competition, or some combination thereof. Another avenue of protection can be found in state dilution statutes, which prohibit unauthorized uses of characters that could harm their reputations, such as by "blurring" their ability to indicate one source, or by "tarnishing" their commercial value. This harm may occur even where there is no likelihood of public confusion, and even where the use is on a noncompeting good. Many commentators have criticized state dilution theories, however, as contravening the purposes …

Publication, Musical Compositions, And The Copyright Act Of 1909: Still Crazy After All These Years, Michael B. Landau

Vanderbilt Journal of Entertainment & Technology Law

The copyright clause of the United States Constitution empowers Congress "to promote the Progress of Science and useful Arts, by Securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The purpose of copyright law is to strike a balance between the public's desire to have free access to information and authors' rights to protection of their private works. Common law copyright somewhat reflects this balance by providing the author with perpetual protection until first publication. Federal copyright law, however, with its more limited duration for protection, better balances these competing interests. Once …

Resolving Tensions Between Copyright And The Internet, Walter Effross

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Fine-Tuning Tasini: Privileges Of Electronic Distribution And Reproduction, Wendy J. Gordon

Faculty Scholarship

The United States Court of Appeals for the Second Circuit is arguably the soundest copyright court in the nation. In Tasini v. New York Times, it handled a challenge brought by a group of freelance writers against publishers and database proprietors. The controversy, now pending in the United States Supreme Court, has wide importance because it will determine what entitlements attach to a publisher who purchases a privilege to include a freelancer's story in the publisher's magazine or newspaper. Essentially, the issue is whether a publisher, who has not purchased the story's copyright and has not obtained an explicit …

Complexity And Copyright In Contradiction, Michael J. Madison

Articles

The title of the article is a deliberate play on architect Robert Venturi's classic of post-modern architectural theory, Complexity and Contradiction in Architecture. The article analyzes metaphorical 'architectures' of copyright and cyberspace using architectural and land use theories developed for the physical world. It applies this analysis to copyright law through the lens of the First Amendment. I argue that the 'simplicity' of digital engineering is undermining desirable 'complexity' in legal and physical structures that regulate expressive works.

Enforcement Against Counterfeiting In The People's Republic Of China, Daniel C.K. Chow

Northwestern Journal of International Law & Business

Although the discussion in this Article is limited to counterfeiting in China, many of the issues discussed are endemic to the Chinese legal system as a whole, and apply also to other intellectual property rights, such as copyright piracy and patent infringements. Moreover, many of the themes raised in this Article also illuminate the current state of the nascent Chinese legal system as a whole and how its capacity is tested as it continues the struggle to keep pace with China's many economic reforms and accompanying social changes. Part I of this Article begins with a review of the enforcement …

Extending Copyright And The Constitution: "Have I Stayed Too Long", Michael H. Davis

Law Faculty Articles and Essays

On October 27, 1998, President Clinton signed into law the Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (hereinafter the “Bono Law”). The Bono Law extended the term of copyright protection by an additional twenty years, both prospectively and retrospectively. The former is probably constitutionally proper; the latter is almost certainly forbidden by the Constitution's copyright clause. But most criticism5 has not forcefully distinguished between retrospective as opposed to prospective extension and so far has failed to convince either Congress or the courts of any constitutional infirmity. This is because most critics agree-or …

The Screenwriter's Indestructible Right To Terminate Her Assignment Of Copyright: Once A Story Is 'Pitched' A Studio Can Never Obtain All Copyrights In The Story, Michael Henry Davis

Law Faculty Articles and Essays

It is probably not quite fraud, though it comes terribly close to it, when motion picture and television production companies convince their writers to part with the rights to their stories when they sign with the companies. Despite contracts that claim the writer has no rights to the resulting script (either because the author has assigned his rights “in perpetuity” or because he has agreed to produce a “workfor hire”), U.S. copyright law provides many authors, perhaps the vast majority of them, with a future right that cannot be lost and can always be regained, irrespective of any written contract …

Copyright And Parody: Touring The Certainties Of Property And Restitution, Wendy J. Gordon

Faculty Scholarship

One of the supposed certainties of the common law is that persons need not pay for benefits they receive except when they have agreed in advance to make payment. The rule takes many forms. One of the most familiar is the doctrine that absent a contractual obligation, a person benefited by a volunteer ordinarily need not pay for what he has received. This rule supposedly both encourages economic efficiency and respects autonomy.

Copyright And The Perfect Curve, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

This essay argues that the assumption that “progress” is qualitatively independent of the underlying entitlement structure is wrong. In particular, I shall argue that a shift to a copyright rule structure based on highly granular, contractually enforced “price discrimination” would work a fundamental shift, as well, in the nature of the progress produced. The critique of the contractual price discrimination model, moreover, exposes deep defects in the use of neoclassical “law and economics” methodology to solve problems relating to the incentive structure of copyright law. What is needed, instead, is an economic model of copyright that acknowledges the central role …

Copyright As A Model For Free Speech Law: What Copyright Has In Common With Anti-Pornography Laws, Campaign Finance Reform, And Telecommunications Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright raises real and troubling free speech issues, and standard responses to those concerns are inadequate. This Article aims to put copyright in the context of other free speech doctrine. Acknowledging the link between copyright and free speech can help determine the proper contours of a copyright regime that both allows and limits property rights in expression, skewing the content of speech toward change.

The Roman Law Roots Of Copyright, Russ Ver Steeg

Maryland Law Review

No abstract provided.

Classroom Lecture For Copyright Law, Wendy J. Gordon

Scholarship Chronologically

The differences between direct, vicarious and contributory liability, Section 512 in related matters. Alright, now let's move on to the next question, which is criminal liability. You read some material on that. And the basic lessons that I want you to take from the material are the following. First, notice that federal copyright law does not impose criminal liability easily as ordinary laws of tangible property do. And I think that that's a good thing. Remember that guy in Les Miserables who's pursued for stealing a loaf of bread. Stealing in the sense of copying one song would not make …

The Constitutionality Of Copyright Term Extension: How Long Is Too Long?, Wendy J. Gordon, Jane C. Ginsburg, Arthur R. Miller, William F. Patry

Faculty Scholarship

I am Professor William Patry of the Benjamin N. Cardozo School of Law. I will be the moderator of this star-studded debate on the Sonny Bono Copyright Term Extension Act.

Copyright, Wendy J. Gordon, Robert G. Bone

Faculty Scholarship

Copyright is the branch of Intellectual Property Law that governs works of expression such as books, paintings and songs, and the expressive aspects of computer programs. Intellectual products such as these have a partially public goods character: they are largely inexhaustible and nonexcludable. Intellectual Property Law responds to inexcludability by giving producers legal rights to exclude nonpayers from certain usages of their intellectual products. The goal is to provide incentives for new production at fairly low transaction costs. However, the copyright owner will charge a price above marginal cost and this, coupled with the inexhaustibility of most copyrighted products, creates …