Law Commons^™

Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp

All Faculty Scholarship

The history of IP/antitrust litigation is filled with exaggerated notions of the power conferred by IP rights and imagined threats to competition. The result is that antitrust litigation involving IP practices has seen problems where none existed. To be sure, finding the right balance between maintaining competition and creating incentives to innovate is no easy task. However, the judge in an IP/antitrust case almost never needs to do the balancing, most of which is done in the language of the IP provisions. The role of antitrust tribunals is the much more limited one of ensuring that any alleged threat to …

Television Formats: Caught In The Abyss Of The Idea/Expression Dichotomy, Jay Rubin

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Once And Future Copyright, James Gibson

Law Faculty Publications

Copyright is like a well-meaning but ultimately bothersome friend, eager to help but nearly impossible to get rid of. It attaches indiscriminately to the simplest acts of expression, without regard for whether the author needs or wants its protection. This automatic propertization made sense in the print era, when mass distribution of information was an expensive process rarely undertaken by those with no plans to profit from their creativity. It makes little sense today. The following article shows that copyright's overly solicitous nature is the source of several seemingly unrelated and intractable problems - e.g., closed code, copyright as censorship, …

Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham

Michigan Law Review

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by nongovernmental organizations. Departures from such standards expose citizens to criminal, civil, and administrative sanctions, yet private actors generate, control, and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach ex ante and no framework exists to facilitate analysis. This Article contributes an analytical framework and proposes institutional mechanisms to implement it. The lack of a comprehensive framework for evaluating copyright to standards embodied in law is surprising because the range of standards potentially affected …

Size Matters (Or Should) In Copyright Law, Justin Hughes

Articles

American copyright law has a widely recognized prohibition against the copyrighting of titles, short phrases, and single words. Despite this bar, effective advocacy has often pushed courts into recognizing independent copyright protection for smaller and smaller pieces of expression, particularly in recent cases involving valuation and taxonomy systems. Copyright case law is rife with dicta suggesting protection of short phrases and single words.

This instability in copyright law is rooted in the fiction that we deny copyright protection to short phrases and single words because they lack originality. In fact, there are many short phrases that cross copyright's low threshold …

Google's (Fair) Use Of Copyrighted Work, James Gibson

Law Faculty Publications

Letters to the Editor on Google's (Fair) Use of Copyrighted Work

A New Weapon Against Piracy: Patent Protection As An Alternative Strategy For Enforcement Of Digital Rights, Dennis S. Fernandez, Matthew Chivvis, Mengfei Huang

ExpressO

This article illustrates how patents and copyrights complement each other to provide a better defense for creative works. Copyrights protect expression, and patents protect underlying functions. Currently, the one-time strengths of copyrights are being eroded as courts allow new technologies to flourish which enable digital reproduction and piracy. This has encouraged companies and industries to move increasingly to patent protection and any company that fails to pursue this trend may be left behind. In sum, patents are a worthwhile strategy because they assist copyright owners in controlling the technology that enables infringement while copyrights alone would leave a company vulnerable …

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Age has spawned major legal battles over the fundamental principles of intellectual property law and antitrust law. These diverse struggles can best be analyzed using the basic norm of "value added" from neo-classical normative economics. This analysis suggests that current intellectual property doctirnes provide excessive protection and current antitrust doctrines remain awkward in dealing with the cross-market leveraging of monopoly power in the presence of "natural monopolies" created by network effects.

Distinctively Delineated Fictional Characters Who Constitute The Story Being Told: Who Are They And Do They Deserve Separate Copyright Protection?, Jasmina D. Zecevic

ExpressO

Literary characters are protected within the copyright of the original work in which they appear, but the law is less clear when a character is separated from the original work and leads an independent life. The two main tests articulated by courts to deal with the phenomenon of an independent character, the “distinctly delineated” and “story being told” tests have not been particularly helpful. The tests are mainly used after a decision has already been reached to give the decision additional validity by uttering the magic words “distinctly delineated” or “story being told”.

A better alternative is to rely on …

Shades Of Grey: Can The Copyright Fair Use Defense Adapt To New Re-Contextualized Forms Of Music And Art?, Nicholas B. Lewis

American University Law Review

No abstract provided.

United States V. Martignon: The First Case To Rule That The Federal Anti-Bootlegging Statute Is Unconstitutional Copyright Legislation, Michael C. Shue

University of Miami Law Review

No abstract provided.

Harry Potter And The Three-Second Crime: Are We Vanishing The De Minimis Defense From Copyright Law?, Julie Cromer

ExpressO

No abstract provided.

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Revolution has created the apparent anomaly that information, though very cheap to create and near costless to share, is managed by industries that are increasingly concentrated and roiled by endless legal warfare. This paper surveys the major legal battles by subjecting all of them to the familiar norm of "maximizing economic value added", as defined by neo-classical "welfare economics". The various legal wars are traced to defects and confusions in current legal approaches to intellectual property (the "property wars") and to antitrust doctrines (the "monopoly wars").

Building Universal Digital Libraries: An Agenda For Copyright Reform , Hannibal B. Travis

ExpressO

This article proposes a series of copyright reforms to pave the way for digital library projects like Project Gutenberg, the Internet Archive, and Google Print, which promise to make much of the world’s knowledge easily searchable and accessible from anywhere. Existing law frustrates digital library growth and development by granting overlapping, overbroad, and near-perpetual copyrights in books, art, audiovisual works, and digital content. Digital libraries would benefit from an expanded public domain, revitalized fair use doctrine and originality requirement, rationalized systems for copyright registration and transfer, and a new framework for compensating copyright owners for online infringement without imposing derivative …

The Role Of Levies In Canada's Digital Music Marketplace, Jeremy F. Debeer

Canadian Journal of Law and Technology

This paper considers whether such initiatives are a desirable alternative to the current system of exclusive proprietary copyrights. My goal is not to evaluate the nuances of any particular levy scheme or proposal, but to consider the implications of the concept from a specifically Canadian perspective. Despite the generality of the analysis, many of the observations and conclusions about the viability of levy schemes relate to Canada’s actual experiences with its existing private copying levy.

The paper concludes that tariffs or levies on the products and services of third parties are not the best method to support the Canadian music …

Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale

Faculty Scholarship

The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal.

In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …

Do We Have Too Many Intellectual Property Rights?, Richard A. Posner

Marquette Intellectual Property Law Review

The Honorable Richard A. Posner discusses the dangers presented by the propertization of intellectual property rights, particularly in the areas of copyright and patent. Unlike physical property, intellectual property rights are limited by duration, scope, and allowance of faire use. These limitations underlie the existence of a rich public domain that encourages the most valuable uses of intellectual property by reducing transaction costs and encouraging the creation of additional creative works.

Divergent Evolution Of The Patent Power And The Copyright Power, Edward C. Walterscheid

Marquette Intellectual Property Law Review

Patent and copyright law in the United States derives from a constitutional grant of power to Congress, which drafted the Patent and Copyright Acts. The U.S. Supreme Court has addressed the meaning of various terms in the Patent and Copyright Clause, but only addressed the constitutionality of a copyright statute in 2003. The Court has never considered the constitutionality of a patent statute. The purpose of this article is to explore Congress' and the courts' diverging interpretations of the patent and copyright powers. It explores the reasons for this divergence, tracing the historic kinship between the two powers from the …

A Technical Critique Of Fifty Software Patents, Martin Campbell-Kelly, Patrick Valduriez

Marquette Intellectual Property Law Review

There has been a great deal of discussion on the desirability of software patents in the legal, economic, and technical academic literature. Case law is the basis of most of the legal literature on the topic. Typically, the basis of the economic literature on patents is the statistical analysis of large numbers of patents. The technical literature frequently hostile to patents often is based on an examination of a small number of pathologically bad patents The authors seek to overcome the inherent limitations of each category of article. The approach taken was to conduct a detailed, technical examination of the …

Fair Use: Threat Or Threatened?, Wendy J. Gordon

Faculty Scholarship

Thank you for inviting me to address the Symposium. It is an honor to participate in the exchange of such interesting and informed views, and to be back at Case.

The original title for my talk had been Warring Frameworks for Fair Use. I had intended to discuss two interpretations of market failure analysis, and to suggest how resolving the conflict between those warring frameworks might resolve a variety of fair use issues.

But then it struck me that this might not be what you, a group made up of both generalists and specialists, would most want in a luncheon …

Comment: Sony, Fair Use, And File Sharing, Stacey Dogan

Faculty Scholarship

In this short Commentary, I would like to explore just one of the interesting strands developed in her paper-the scope of personal fair use in Sony, and its implications for peer-to-peer file sharing. More specifically, I want to reflect on the suggestion that Sony's broad exemption for personal copying has eroded into something unrecognizable, and that it is this erosion-rather than any difference between file-sharing and time shifting-that explains the courts' hostility to the fair use defense in the peer-to-peer context.

Panel Ii: Licensing In The Digital Age: The Future Of Digital Rights Management, Marybeth Peters, Joseph Salvo, Fred Von Lohmann, Hugh C. Hansen

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Martignon And Kiss Catalog: Can Live Performances Be Protected?, Brian Danitz

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Panel Ii: Licensing In The Digital Age: The Future Of Digital Rights Management, Marybeth Peters, Joseph Salvo, Fred Von Lohmann, Hugh C. Hansen

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Martignon And Kiss Catalog: Can Live Performances Be Protected?, Brian Danitz

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Intellectual Property Rights In Digital Media: A Comparative Analysis Of Legal Protection, Technological Measures And New Business Models Under E.U. And U.S. Law, Nicola Lucchi

ExpressO

The production of digital content is a phenomenon which has completely changed the conditions of access to knowledge. Within this framework it becomes even more important to find and to formulate a new settlement for intellectual property rights balancing contrasted rights. Owners of the old technology and policy makers have found two different solutions and remedies for intellectual property rights: legal and technological. When both remedies work together any rights that a consumer may have under copyright law could be replaced by a unilaterally defined contractual term and condition. To balance this inequity this article analyses different solutions under U.S. …

The Drm Dilemma: Re-Aligning Rights Under The Digital Millennium Copyright Act, Jacqueline D. Lipton

ExpressO

The Digital Millennium Copyright Act (‘DMCA’) prevents unauthorized copying and distribution of digital copyright works by regulating devices that can be used to circumvent Digital Rights Management (‘DRM’) measures that are used to restrict access to those works. A significant problem is that those devices, like many new technologies, have the potential to be used for both socially harmful and socially beneficial purposes. There is no obvious way for Congress to regulate circumvention devices to prevent the social harms, while at the same time facilitating the social benefits they might provide. Recent judicial interpretations of the DMCA have unsurprisingly erred …

Special Project: Current Issues In Intellectual Property, W. Russell Taber

Vanderbilt Law Review

A single legal concept has produced some of the greatest achievements of the human mind: intellectual property. Thousands of years ago, Aristotle denounced the then novel notion of rewarding those who create inventions beneficial to the state. History has been kind to Aristotle, but not because of his insights on intellectual property. The Venetian Senate's passage of the 1474 Act marked the beginning of systematic patent protection on European soil. Along with blown glassware, Venice later exported its penchant for patent protection to the rest of Europe, including Great Britain by the mid- sixteenth century. During the same era, the …

Introduction: Special Project - Current Issues In Intellectual Property, W. Russell Taber

Vanderbilt Law Review

A single legal concept has produced some of the greatest achievements of the human mind: intellectual property. Thousands of years ago, Aristotle denounced the then novel notion of rewarding those who create inventions beneficial to the state. History has been kind to Aristotle, but not because of his insights on intellectual property. The Venetian Senate's passage of the 1474 Act marked the beginning of systematic patent protection on European soil. Along with blown glassware, Venice later exported its penchant for patent protection to the rest of Europe, including Great Britain by the mid- sixteenth century. During the same era, the …

When Will We Have Cross-Border Licensing Of Copyright And Related Rights In Europe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

In Europe, much has been written recently about the collective management of copyright and related rights. April 2004 saw the publication of the European Commission’s Communication to the Council and the European Parliament on the Management of Copyright and Related Rights in the Internal Market.1 This communication confirms the Commission’s intention to adopt, in the not too distant future, a directive on the governance of the societies for collective management of copyright and related rights (collecting societies) in Europe. In addition to describing the current situation in the area of collective management of copyright and related rights in the European …