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Full-Text Articles in Law

Legal Nature Of Emails: A Comparative Perspective, Edina Harbinja Feb 2016

Legal Nature Of Emails: A Comparative Perspective, Edina Harbinja

Duke Law & Technology Review

There is currently a conflict between laws and the market in their treatment of email. Laws mandate that emails are not protected as property unless copyrightable or protected by another legal mechanism. But the market suggests that emails are user-owned property without further qualification. Moreover, the nature of email is treated slightly differently between the U.S. and U.K. legal regimes. While the current legal regimes applicable to email in the U.K. and U.S. are reasonable, legal harmonization within these systems, and with the service provider market, should be achieved.


Last Sale? Libraries’ Rights In The Digital Age, Jennifer Jenkins Jan 2014

Last Sale? Libraries’ Rights In The Digital Age, Jennifer Jenkins

Faculty Scholarship

No abstract provided.


From Berne To Beijing: A Critical Perspective, David L. Lange Jan 2013

From Berne To Beijing: A Critical Perspective, David L. Lange

Faculty Scholarship

Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law’s Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange’s preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs ...


Promoting Progress With Fair Use, Joshua N. Mitchell Apr 2011

Promoting Progress With Fair Use, Joshua N. Mitchell

Duke Law Journal

The Intellectual Property (IP) Clause provides that Congress has the power "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." In the realm of copyright, Congress and the courts have interpreted the clause as granting Congress a power not to promote progress but to establish limited IP monopolies. To return to an understanding of the IP power better grounded in the constitutional text, Congress and the courts should ensure that any IP enactment "promote[s] ... Progress" by considering whether it improves the ...


Golan V. Holder: Copyright In The Image Of The First Amendment, David L. Lange, Risa J. Weaver, Shiveh Roxana Reed Jan 2011

Golan V. Holder: Copyright In The Image Of The First Amendment, David L. Lange, Risa J. Weaver, Shiveh Roxana Reed

Faculty Scholarship

Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of ...


Collective Management Of Copyrights And Human Rights: An Uneasy Alliance Revisited, Laurence R. Helfer Jan 2010

Collective Management Of Copyrights And Human Rights: An Uneasy Alliance Revisited, Laurence R. Helfer

Faculty Scholarship

This essay analyzes the “creators’ rights” provisions of the International Covenant on Economic Social and Cultural Rights (ICESCR) in the context of the collective administration of copyright and neighboring rights and the policies and practices of collective management organizations (CMOs). It also addresses other human rights treaties and international court rulings relevant to collective rights management. The essay begins with an overview of the ICESCR Committee’s General Comment on ICESCR Article 15(1)(c), “the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which ...


Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin Jan 2010

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the ...


Creative Reading, Jessica Litman Apr 2007

Creative Reading, Jessica Litman

Law and Contemporary Problems

Litman argues that by ignoring the central importance of readers, listeners, viewers, and players in the copyright scheme, the essential policy question in determining whether a use of copyrighted material should be lawful is the way the use looks from the viewpoint of the copyright owner is conceded. The comfort level supplied by an implied license analysis is emblematic of the failure to pay enough attention to reader interests and there is need to take another look at copyright, keeping the significance of readers, listeners, and viewers in mind. Furthermore, failure to pay sufficient attention to the interests of readers ...


Should A Licensing Market Require Licensing?, Mark A. Lemley Apr 2007

Should A Licensing Market Require Licensing?, Mark A. Lemley

Law and Contemporary Problems

Many circumstances fair use should separate the idea that the copyright owner should be compensated for a use from the idea that the copyright owner should be able to control that use. The licensing-market cases provide a perfect vehicle for dividing rights but if a use is considered unfair because the copyright owner could have gotten paid to permit that use, the argument may or may not justify compensating the copyright owner for the loss, but it does not justify giving the copyright owner control over the defendant's use. Here, Lemley explains the development of the licensing-market rationale, critiques ...


Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet Apr 2007

Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet

Law and Contemporary Problems

Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but know less about the choices people make about copyright on a daily basis, especially when they are not working. Here, Tushnet examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Among other things, she discusses some differences between fair use and fan practices, focused around attribution as an alternative ...


Nine-Tenths Of The Law: The English Copyright Debates And The Rhetoric Of The Public Domain , Mark Rose Apr 2003

Nine-Tenths Of The Law: The English Copyright Debates And The Rhetoric Of The Public Domain , Mark Rose

Law and Contemporary Problems

No abstract provided.


Romans, Roads, And Romantic Creators: Traditions Of Public Property In The Information Age , Carol M. Rose Apr 2003

Romans, Roads, And Romantic Creators: Traditions Of Public Property In The Information Age , Carol M. Rose

Law and Contemporary Problems

No abstract provided.


Foreword: The Opposite Of Property?, James Boyle Apr 2003

Foreword: The Opposite Of Property?, James Boyle

Law and Contemporary Problems

In November of 2001, Duke University School of Law held a conference on the public domain; the "outside" of the intellectual property system, the material that is free for all to use and to build upon.1 So far as we could tell, this was the first conference on the subject, which is surprising when one realizes the central role of the public domain in our traditions of speech, innovation and culture. In many ways, this imbalance-the hundreds of conferences, centers and initiatives that have intellectual property as their focus, and the comparative dearth of attention on the public domain-provided ...


Mapping The Digital Public Domain: Threats And Opportunities, Pamela Samuelson Apr 2003

Mapping The Digital Public Domain: Threats And Opportunities, Pamela Samuelson

Law and Contemporary Problems

No abstract provided.


Ideas, Artifacts, And Facilities: Information As A Common-Pool Resource, Charlotte Hess, Elinor Ostrom Apr 2003

Ideas, Artifacts, And Facilities: Information As A Common-Pool Resource, Charlotte Hess, Elinor Ostrom

Law and Contemporary Problems

No abstract provided.


Reconciling What The First Amendment Forbids With What The Copyright Clause Permits: A Summary Explanation And Review, William W. Van Alstyne Apr 2003

Reconciling What The First Amendment Forbids With What The Copyright Clause Permits: A Summary Explanation And Review, William W. Van Alstyne

Law and Contemporary Problems

No abstract provided.


Two Relationships To A Cultural Public Domain Apr 2003

Two Relationships To A Cultural Public Domain

Law and Contemporary Problems

It's been well over ten years since Negativland was sued by Island Records for supposed copyright infringement, trademark infringement, defamation of character and consumer fraud contained in our 1991 U2 single. In the big wide world of the ownership of ideas, a lot has changed since then-the advent of the Internet and its worldwide empowerment of individuals through personalized interconnection, the effects of economic globalization and how it bypasses both the ideologies of local governments and the rule of their national laws, and the Digital Millennium Copyright Act with which intellectual property owners are attempting to survive as all ...


“Fairest Of Them All” And Other Fairy Tales Of Fair Use, David Nimmer Apr 2003

“Fairest Of Them All” And Other Fairy Tales Of Fair Use, David Nimmer

Law and Contemporary Problems

No abstract provided.


The Second Enclosure Movement And The Construction Of The Public Domain, James Boyle Apr 2003

The Second Enclosure Movement And The Construction Of The Public Domain, James Boyle

Law and Contemporary Problems

No abstract provided.


Reimagining The Public Domain, David Lange Apr 2003

Reimagining The Public Domain, David Lange

Law and Contemporary Problems

In a paper included among this collection of works from the Duke Law School’s Conference on the Public Domain, James Boyle kindly credits an early essay of mine, Recognizing the Public Domain, with having contributed initially to the contemporary study of the subject. Boyle quotes a passage from that essay in which I suggested that "recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain . . . . Each [intellectual property] right ought to be marked off clearly against the public domain."


Bayh-Dole Reform And The Progress Of Biomedicine, Arti K. Rai, Rebecca S. Eisenberg Apr 2003

Bayh-Dole Reform And The Progress Of Biomedicine, Arti K. Rai, Rebecca S. Eisenberg

Law and Contemporary Problems

No abstract provided.


Through The Looking Glass: Alice And The Constitutional Foundations Of The Public Domain , Yochai Benkler Apr 2003

Through The Looking Glass: Alice And The Constitutional Foundations Of The Public Domain , Yochai Benkler

Law and Contemporary Problems

No abstract provided.


A Contractually Reconstructed Research Commons For Scientific Data In A Highly Protectionist Intellectual Property Environment, J. H. Reichman, Paul F. Uhlir Apr 2003

A Contractually Reconstructed Research Commons For Scientific Data In A Highly Protectionist Intellectual Property Environment, J. H. Reichman, Paul F. Uhlir

Law and Contemporary Problems

No abstract provided.


Piracy In Russia And China: A Different U.S. Reaction, Connie Neigel Oct 2000

Piracy In Russia And China: A Different U.S. Reaction, Connie Neigel

Law and Contemporary Problems

Both Russia and China refused to adopt international copyright agreements until pressured by other countries, particularly the US. The US has pursued China's copyright abuses more aggressively than it has pursued similar abuses by Russia. Neigel attempts to explain the reasons for this disparate treatment.


Administrative Management And Enforcement Of Copyright In China, Chen Zhaokuan Oct 1998

Administrative Management And Enforcement Of Copyright In China, Chen Zhaokuan

Duke Journal of Comparative & International Law

No abstract provided.


Reviving The Rhetoric Of The Public Interest: Choir Directors, Copy Machines, And New Arrangements Of Public Domain Music, Paul J. Heald Nov 1996

Reviving The Rhetoric Of The Public Interest: Choir Directors, Copy Machines, And New Arrangements Of Public Domain Music, Paul J. Heald

Duke Law Journal

No abstract provided.


Intellectual Property Policy Online: A Young Person’S Guide, James Boyle Jan 1996

Intellectual Property Policy Online: A Young Person’S Guide, James Boyle

Faculty Scholarship

This is an edited version of a presentation to the "Intellectual Property Online" panel at the Harvard Conference on the Internet and Society, May 28-31, 1996. The panel was a reminder of both the importance of intellectual property and the dangers of legal insularity. Of approximately 400 panel attendees, 90% were not lawyers. Accordingly, the remarks that follow are an attempt to lay out the basics of intellectual property policy in a straighforward and non-technical manner. In other words, this is what non-lawyers should know (and what a number of government lawyers seem to have forgotten) about intellectual property policy ...


Remembering Melville Nimmer: Some Cautionary Notes On Commercial Speech, William W. Van Alstyne Jan 1996

Remembering Melville Nimmer: Some Cautionary Notes On Commercial Speech, William W. Van Alstyne

Faculty Scholarship

This examination concerns itself with two main questions: what qualifies as commercial speech and how much protection does commercial speech enjoy under the First Amendment when compared to other forms of speech. The trend of the Court indicates that commercial speech enjoys protections similar to political speech.


Drawing The Boundary Between Copyright And Contract: Copyright Preemption Of Software License Terms, Maureen A. O'Rourke Dec 1995

Drawing The Boundary Between Copyright And Contract: Copyright Preemption Of Software License Terms, Maureen A. O'Rourke

Duke Law Journal

No abstract provided.


The Uncertain Future Of Computer Software Users’ Rights In The Aftermath Of Mai Systems, Michael E. Johnson Nov 1994

The Uncertain Future Of Computer Software Users’ Rights In The Aftermath Of Mai Systems, Michael E. Johnson

Duke Law Journal

No abstract provided.