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Copyright Exhaustion And The Personal Use Dilemma, Aaron K. Perzanowski, Jason M. Schultz
Copyright Exhaustion And The Personal Use Dilemma, Aaron K. Perzanowski, Jason M. Schultz
Aaron K. Perzanowski
Copyright law struggles to provide a coherent framework for analyzing personal uses. Although there is widespread agreement that at least some such uses are non-infringing, the doctrinal basis for that conclusion remains unclear. In particular, the prevailing explanations of fair use and implied license are both flawed in important respects. This Article proposes a new explanation for the favored status of certain personal uses. Drawing on the principle of copyright exhaustion - the notion that once the copyright holder parts with a particular copy of a work, its power to control the use and disposition of that copy is constrained …
Digital Exhaustion, Aaron K. Perzanowski, Jason M. Schultz
Digital Exhaustion, Aaron K. Perzanowski, Jason M. Schultz
Aaron K. Perzanowski
As digital networks emerge as the dominant means of distributing copyrighted works, the first sale doctrine is increasingly marginalized. The limitations first sale places on the exclusive right of distribution are of little importance when the alienation and use of copies entails their reproduction. This fact of the modern copyright marketplace has led to calls for statutory clarification of digital first sale rights. Acknowledging the obstacles to legislative intervention, this Article argues that courts are equipped today to limit copyright exclusivity in order to enable copy owners to make traditionally lawful uses of their copies, including resale through secondary markets. …
Fixing Ram Copies, Aaron K. Perzanowski
Fixing Ram Copies, Aaron K. Perzanowski
Aaron K. Perzanowski
Scholars, litigants, and courts have debated the status of so-called “RAM copies” - instantiations of copyrighted works in the random access memory of computing devices - for decades. The Second Circuit’s decision in Cartoon Network v. CSC Holdings has recently reignited the controversy over these putative copies. There the court held that CSC did not create copies within the meaning of the Copyright Act when it buffered fleeting segments of television programs. In many respects, the Second Circuit’s holding is a straightforward application of the Act’s nested definitions of “copies” and “fixed.” But because the court declined to apply the …
Rethinking Anticircumvention's Interoperability Policy, Aaron K. Perzanowski
Rethinking Anticircumvention's Interoperability Policy, Aaron K. Perzanowski
Aaron K. Perzanowski
Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and a narrow textual focus on software-to-software interoperability render those safeguards largely ineffective. Subjecting restrictions on …