Law Commons^™

Internationalizing Copyright: How Claims Of International, Extraterritorial Copyright Infringement May Be Brought In U.S. Courts, Elliot Cook

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This Comment assesses the use of the Alien Tort Statute (“ATS”) as a jurisdictional basis for claims of international copyright infringement occurring outside of the United States. Under the ATS, aliens may sue in United States district courts for torts that amount to violations of treaties or the law of nations.

Given that copyright infringement is a tort, an alien may only be able to establish ATS jurisdiction in a suit of extraterritorial infringement if the infringement violated a treaty or the law of nations. This comment argues that extraterritorial copyright infringement does indeed amount to a violation of the …

Design Patents: An Alternative When The Low Standards Of Copyright Are Too High?, Ryan G. Vacca

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The standard for copyright protection is notoriously low – the work must be independently created and possess a minimal degree of creativity. Nonetheless, even with that generous standard, the courts and the Copyright Office recognize that certain works do not contain even that minimum level of creativity such that they are categorically refused copyright protection. Blank forms, and other forms that do not convey information, fall within this category. In contrast, and for good reason, the standard for design patent protection is much more burdensome. The field of design patents protects new, original, ornamental, and non-obvious designs. This more difficult …

Copyright's Empire: Why The Law Matters , Alina Ng

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Two separate and distinct movements have colonized research in the field of intellectual property. Law and economics has deepened our understanding of the justification for granting monopoly rights over intellectual property. In recent years, economic theories have been used to support the growth of the commons – the free environment, where intellectual property plays little role in generating new creative works and innovation. The second movement is law and technology that has sought to increase understanding of intellectual property through the exploration of how technologies either provide freedoms or impose limitations to how creative works and innovation are created and …

Overcoming The Achilles Heel Of Copyright Law, Haochen Sun

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With the recent proliferation of international, regional and bilateral treaties associated with copyright protection, the three-step test has been hailed as the panacea for measuring the legality of all limitations on copyright. This article challenges the legitimacy of the three-step test as a one-size-fits-all standard for copyright protection and puts forward a proposal to reshape this test. It further argues that the inquiry into the legitimacy of the three-step test necessitates a careful reexamination of the conventional wisdom of copyright law in general and the nature of copyright limitations in particular. Central to this scrutiny are the inquiries into how …

Access To Knowledge As A Bridge Over The Troubled Waters Of Copyright Fair Use -- From Jefferson To Mandela To Google, Douglas L. Rogers

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The copyright fair use doctrine is a key to increasing access to knowledge and decreasing the digital divide between information-rich and information-poor countries. Publishers have sued Google for copyright infringement for scanning the copyrighted books of the publishers into a digital database, so Google users can search the database for certain words to determine what books contain words of interest to the user. The Google litigation, however, is only a small piece of the larger access to knowledge puzzle. The larger issue is access to the books themselves, translated into the native languages of citizens of developing countries. Yet copyright …

Technoconsen(T)Sus, Andrea M. Matwyshyn

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Law is contributing to an information security paradox. Consumers are regularly “consenting” to the installation of computer code that makes them more vulnerable to harms such as identity theft. In particular, digital rights management technology accompanying digital music has recently left a wake of compromised user machines. Using the case study of security-invasive digital rights management technology, this article argues that a fundamental tension exists among intellectual property law, computer intrusion law and contract law regarding meaningful consumer consent in digital contexts. This article proposes to ease the noise in consent doctrine through creating an objective “reasonable digital consumer” standard …

The Twilight Of The Opera Pirates: A Prehistory Of The Exclusive Right Of Public Performance For Musical Compositions, Zvi S. Rosen

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The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America’s first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance …

Defining Fair Use In The Digital Era, Joseph James Raffetto

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The increasing prevalence of technology, and the ease with which the public and companies can reproduce, recombine, and reuse copyrighted works, has rendered the once-confusing fair use doctrine a virtual uncertainty. Given limited congressional guidance, courts have relied heavily on the secondary use’s potential effect on the market for the original work. While this reliance is based on the valid concern of maintaining adequate creative incentives, the enormous growth of licensing markets has resulted in an overemphasis on economic concerns. Recent court decisions indicate that fair use now turns not on the protection of creative incentives, but rather the preservation …

Copyright Distributive Injustice, Daniel Benoliel

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By design, copyright is a legal field that is not distinctively designed for redistribution. And yet, numerous fairness scholars and other critics of the economics paradigm quite markedly argue that copyright law should be based upon some measure of distribution, not efficiency.

This essay argues that copyright law should not promote distributive justice concerns, subject to narrow exceptions and that other more efficient law such as taxation and welfare laws should do that instead. It does so in accordance to the prevailing welfare economics interpretative approach to copyright jurisprudence, with emphasis on the latest Peer-to-Peer (P2P) file sharing litigation.

It …

Risk Aversion And Rights Accretion In Intellectual Property Law, James Gibson

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Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict, intellectual property users often seek licenses even when proceeding without one might be permissible. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine; the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory--where risk aversion again creates licensing markets, which cause …

Taking Copyright Seriously: Abridging Rights Is More Serious Than Inflating Rights, Alina Ng

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The proper balance between private rights and public interests in copyright has always been a heated debate. As communication and information technologies converge and develop to enable authors and users of creative works to create and use works without the physical limitations of the analog world, the debate has become more intense. This paper intends to contribute to the debate by bringing attention to basic ideas about rights and the importance of copyright as an institution to ensure that authors create new literary and artistic works for the benefit of the public. Rights under copyright are rights that define the …

Performing Rights Societies And The Digital Environment, Philippe Gilliéron

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No abstract provided.

Protecting Menard’S Quixote: A Return To The Strict Originality Standard In Copyright Law, Daniel R. Connolly

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Copyright protection extends to “original” works. The adjective “original” here means a work that originated with its purported author, and is not meant to impute any novelty requirement to copyright law. However, case law and literature offer up several odd examples where two individuals have independently created identical works of art. The theory underlying copyright law requires that, because each work originated independently from separate authors, each work be independently copyrightable. Applying this strict, objective standard of originality to the transformative arts, we begin to see new possibilities for grounding copyrights in parodies and satires. Under current law, parodies escape …

The Problem Of Freedom Override By Digital Rights Management Technologies: The Market Mechanisms And Possible Legal Options, Yuko Noguchi

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One of the major problems of copyright regulations in the digital and network era is that the Digital Rights Management (DRM) technologies are overriding the freedom incorporated within the copyright regulations in the analog world. The override problem partly comes from the strict implementation of the DRM systems by the market, and partly from the anti-circumvention regulations that almost blindly protect such implementation. This research reviews the scope of anti-circumvention regulations by introducing Japanese regulations, which are rather modest, and by comparing with the U.S. regulations. It also extensively analyzes the market mechanisms that cause rather strict implementation of DRM …

Copyright On Catfish Row: Musical Borrowing, Porgy & Bess And Unfair Use, Olufunmilayo B. Arewa

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Treatment of musical borrowing under current copyright standards is far too often inequitable. This is evident in the works of George Gershwin, who for a number of reasons was able to borrow freely from existing traditions, works and artists, copyright the works he produced that reflected such borrowings and then restrict future borrowings and reinterpretations of his works. Looking at the operation and uses of copyright in the specific instance of George Gershwin’s musical practice reflects uses of copyright in the musical arena and demonstrates some ways in which current copyright rules may not adequately contemplate actual practices of music …

Beyond Abstraction, The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew J. Sag

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Uncertainty as to the optimum extent of protection has generally limited the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This article explores the relationship between copyright scope, doctrinal efficiency and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law. The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use.

Opting Out: Procedural Fair Use, Michael R. Mattioli

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This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright’s doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn’t want their books scanned. Despite this measure, two major authors’ groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract …

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

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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

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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

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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 …

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

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No abstract provided.

Copyright And Open Source Software Licensing, Sau Sheong Chang

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The open source software movement has swept the software industry by storm in recent times, challenging many pre-conceptions about existing software development and licensing models. Copyright have protected software ownership and licensing of much of the closed source software in the market but how does copyright relate to open source software licensing? This dissertation describes the past and present of legal software protection and traces the history of the open source software movement from the Free Software Foundation and Open Source Initiative to the current state of the industry. The various open source licences are compared and explained. The discussion …

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

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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

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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 …

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

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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

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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 …

The Utility Of A Bright-Line Rule In Copyright Law: Freeing Judges From Aesthetic Controversy And Conceptual Separability In Leicester V. Warner Bros., John B. Fowles

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No abstract provided.

God In The Machine: A New Structural Analysis Of Copyright’S Fair Use Doctrine, Matthew J. Sag

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This article is a broad reconceptualization of the role of fair use within copyright law. Fair use is commonly thought of as just one of many exceptions limiting copyright. I show that fair use has actually enabled the expansion of copyright protection, through its structural role.

The structural role of fair use has two aspects. First, copyright necessarily must balance intellectual property incentives with the protection of free speech and innovation; fair use constitutes that balancing mechanism. By establishing the outer limits of copyright, fair use in fact enables an expansive interpretation of author’s rights within those bounds. Second, because …

Keeping Score: The Struggle For Music Copyright, Michael W. Carroll

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Inspired by the passionate contemporary debates about music copyright, this Article investigates how, when, and why music first came within copyright's domain. Although music publishers and recording companies are among the most aggressive advocates for strong copyright protection today, when copyright law was first invented in eighteenth-century England, music publishers resisted its extension to music. This Article sheds light on a series of early legal disputes concerning printed music that yield important insights into original understandings of copyright law and music's role in society. By focusing attention on this understudied episode, this Article demonstrates that the concept of copyright was …

Thinking Outside The Pandora's Box: Why The Dmca Is Unconstitutional Under Article I §8 Of The U.S. Constitution, Joshua L. Schwartz

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No abstract provided.