Law Commons^™

Content-Based Copyright Denial, Ned Snow

Faculty Publications

No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …

Copyright Policy And The Problem Of Generalizing, Eva E. Subotnik

Faculty Publications

(Excerpt)

Today we have heard a variety of concerns expressed by professional authors, artists and performers. But one of the toughest aspects of determining how to make the copyright system work better is generalizing about what is and is not working. In these brief remarks, I would like to identify three areas that demonstrate this difficulty.

At the outset, a disclaimer: I took the animating theme of this Symposium to be the improvement of the financial stake of individual authors in some kind of direct way. This mode of analysis should be distinguished from other approaches, equally valid, that would …

Corporate "Human Rights" To Intellectual Property Protection?, J. Janewa Oseitutu

Faculty Publications

The global intellectual property system protects the interests of intellectual property owners, sometimes to the detriment of competing interests like public health or access to knowledge. Some scholars have proposed a human rights framework for intellectual property as a way to inject balance into the current system. However, the assertion that human rights will bring balance is often coupled with the assumption that corporations are, by definition, excluded from human rights-based intellectual property claims. Yet, corporations have used, and are likely to continue to use, human rights law to ground their intellectual property claims. Since multinational corporations were a major …

Constitutional Obstacles? Reconsidering Copyright Protection For Pre-1972 Sound Recordings, Eva E. Subotnik, June M. Besek

Faculty Publications

(Excerpt)

The typical complaint about intellectual property laws is that they are sluggish in responding to technological change. An unfolding question in the contemporary era, however, is the degree to which the threat of constitutional challenge will lead Congress to further adhere to the status quo. In the wake of the patent law overhaul several years ago, for example, the wisdom and scope of those amendments were widely debated, but concern about their constitutional soundness was also expressed in some quarters. Likewise, the latter concern is in play with respect to a proposed amendment of the law that applies to …

The Regressing Progress Clause: Rethinking Constitutional Indifference To Harmful Content In Copyright, Ned Snow

Faculty Publications

The Constitution's Progress Clause purports to restrict Congress's copyright power to works that "promote the Progress of Science and useful Arts." For most of the past two centuries, this Clause has set a minimal content-based standard for copyright eligibility. It denied protection for a work whose content did not rise to the level of useful knowledge, in that the work either lacked compositional value or portrayed an immoral or unlawful subject matter. As evidenced by judicial and scholarly writings, this construction of the Progress Clause was consistent with the 1903 decision in Bleistein v. Donaldson Lithographing Co., where the Court …

Overlapping Intellectual Property Doctrines: Election Of Rights Versus Selection Of Remedies, Laura A. Heymann

Faculty Publications

Overlaps exist across various doctrines in federal intellectual property law. Software can be protected under both copyright law and patent law; logos can be protected under both copyright law and trademark law. Design patents provide a particular opportunity to consider the issue of overlap, as an industrial design that qualifies for design patent protection might also, in particular circumstances, qualify for copyright protection as well as function as protectable trade dress.

When an overlap issue arises—that is, when an intellectual property rights holder asserts rights under more than one doctrine—the question then becomes how courts should respond. One response, of …

The New American Privacy, Richard J. Peltz-Steele

Faculty Publications

Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 …

The Meaning Of Science In The Copyright Clause, Ned Snow

Faculty Publications

The Constitution premises Congress’s copyright power on promoting “the Progress of Science.” The word Science therefore seems to define the scope of copyrightable subject matter. Modern courts and commentators have subscribed to an originalist view of Science, teaching that Science meant general knowledge at the time of the Framing. Under this interpretation, all subject matter may be copyrighted because expression about any subject increases society’s store of general knowledge. Science, however, did not originally mean general knowledge. In this Article, I examine evidence surrounding the Copyright Clause and conclude that at the Framing of the Constitution, Science meant a system …

Speaking Of Moral Rights: A Conversation Between Eva E. Subotnik And Jane C. Ginsburg, Eva E. Subotnik, Jane C. Ginsburg

Faculty Publications

This piece is the transcription of a conversation between two law faculty members speaking about moral rights in the digital age. Prof. Subotnik questions Prof. Ginsburg about some of the legal and technological developments that have occurred since Prof. Ginsburg’s 2001 essay, Have Moral Rights Come of (Digital) Age in the United States?. "If moral rights have come of digital age, should their realization be achieved by conveying more information about the copy, or by controlling the copy itself?" This question is now asked from the vantage point of 2012, ten years since Prof. Ginsburg first posed it.

Copyright Versus The Public Domain: Does The Constitution Allow Congress To Take Works From The Public Domain And Replace Those With Private Exclusive Rights?, Dennis D. Crouch, Ted Wright

Faculty Publications

This case arose out of U.S. treaty obligations to restore copyright to foreign authors who had failed to comply with the pre-1989 formalities in the law. Section 514 of the Uruguay Round Agreement Act (URAA) restores those copyrights and, in doing so, allowed thousands of widely disseminated works to be removed from the public domain. Petitioners challenge the law—arguing that the law overreaches constitutional authority and violates speech rights protected by the First Amendment.

Fair Use As A Matter Of Law, Ned Snow

Faculty Publications

Courts have recently abandoned the centuries-old practice of construing fair use as an issue of fact for the jury. Fair use now stands as an issue of law for the judge. This change is threatening traditional contours of copyright law that protect fair-use speech. Courts, then, must reform their current construction of fair use by returning to its origins— fair use as a factual matter for the jury. Yet even if courts do construe fair use as a matter of fact, the question remains whether courts should ever decide fair use as a matter of law. To answer this question, …

The Forgotten Right Of Fair Use, Ned Snow

Faculty Publications

Free speech was once an integral part of copyright law; today it is all but forgotten. At common law, principles of free speech protected those who expressed themselves by using another's expression. Free speech determined whether speakers had infringed a copyright. To prevail on a copyright claim, then, a copyright holder would need to prove that the speaker’s use fell outside the scope of permissible speech - or in other words, that the use was not fair. Where uncertainty prevented that proof, fair use would protect speakers from the suppression of copyright. Today, however, all this has changed. Copyright has …

Originality Proxies: Toward A Theory Of Copyright And Creativity, Eva E. Subotnik

Faculty Publications

This article contends that a definitive account of originality as a legal construct is not possible and that, as a result, the current low threshold for originality should be maintained. Under this analysis, most photographs, so long as they comply with certain requirements, should be granted protection, at the very least, against exact copying (for example, through digital copying and pasting). Arriving at this conclusion, however, requires a return to first principles, that is, to the copyright concepts of authorship and originality. These concepts saw their most recent articulation by the Supreme Court in the 1991 landmark decision of Feist …

Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow

Faculty Publications

Issues of fair use in copyright cases are usually decided at summary judgment. But it was not always so. For well over a century, juries routinely decided these issues. The law recognized that fair use issues were highly subjective and thereby inherently factual — unfit for summary disposition by a judge. Today, however, all this has been forgotten. Judges are characterizing factual issues as purely legal so that fair use may be decided at summary judgment. Even while judges acknowledge that reasonable minds may disagree on these issues, they characterize the issues as legal, preventing them from ever reaching a …

Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow

Faculty Publications

Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair-use burden of proof is repugnant to the fair use purpose. Today, copyright holders are exploiting the burden …

Protection For Works Of Foreign Origin Under The 1909 Copyright Act, Tyler T. Ochoa

Faculty Publications

One of the principal goals of the 1909 Copyright Act was to simplify and streamline the formalities required to obtain copyright protection. Before the 1909 Copyright Act, authors had to register their works before publication in order to be eligible for copyright protection; and notice of the registration had to be included on all copies published in the United States. If a work was published anywhere in the world before registration, or if the notice was omitted when the work was published domestically, the work went into the public domain. Under the 1909 Act, however, authors only had to publish …

What Kinds Of Statutory Restrictions Are Jurisdictional?, Scott Dodson

Faculty Publications

Section 411(a) of the Copyright Act of 1976 provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.” In this case, a district court approved a class action settlement that purported to resolve both registered and unregistered copyright claims. The Supreme Court is being asked to decide whether that registration requirement is a limitation on federal court subject-matter jurisdiction.

A Tale Of (At Least) Two Authors: Focusing Copyright Law On Process Over Product, Laura A. Heymann

Faculty Publications

No abstract provided.

Global Warming Trend? The Creeping Indulgence Of Fair Use In International Copyright Law, Richard J. Peltz-Steele

Faculty Publications

In her article Toward an International Fair Use Doctrine in 2000, Professor Ruth Okediji hypothesized that the internationalization of copyright law would threaten the freedom of expression if some doctrine akin to U.S. “fair use” were not established as an international legal norm. Acknowledging the central concern of the Okediji article, this paper analyzes research and legal developments since that article to determine how the present state of the “fair use” concept in international copyright law differs from its state in 2000. The paper concludes that in the last eight years, though there has been no formal adoption of an …

Intellectual Property Rights In An Attorney’S Work Product, Ralph D. Clifford

Faculty Publications

This paper addresses the main intellectual property consequences of practicing law and whether attorneys can prevent others from using their work-product. The article does not assume that the reader is an expert in intellectual property law; instead, it is designed to answer the types of questions practitioners have about their rights.

A Copyright Conundrum: Protecting Email Privacy, Ned Snow

Faculty Publications

The practice of email forwarding deprives email senders of privacy. Expression meant for only a specific recipient often finds its way into myriad inboxes or onto a public website, exposed for all to see. Simply by clicking the "forward" button, email recipients routinely strip email senders of expressive privacy. The common law condemns such conduct. Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune …

F(R)Ee Expression: Reconciling Copyright & The First Amendment, Raymond Shih Ray Ku

Faculty Publications

This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers' intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers' intent arguably increases such conflicts. Moreover, …

The Trademark/Copyright Divide, Laura A. Heymann

Faculty Publications

No abstract provided.

Promoting Diverse Cultural Expression: Lessons From The U.S. Copyright Wars, Raymond Shih Ray Ku

Faculty Publications

In 2007, the United Nations adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expression (CCD) with the goal of creating an environment that encourages individuals and social groups to create, distribute, and have access to diverse cultural expression from their own cultural and from cultures around the world. With regard to domestic and international efforts to implement the CCD and reconcile its goals with other international norms, the author argues that valuable lessons can be learned from current trends and issues in U.S. copyright law. Specifically, the author argues that the current debate over copyright's …

Rethinking Patent Law’S Uniformity Principle, Craig Allen Nard, John F. Duffy

Faculty Publications

Modern law on expert testimony insists, as a condition of admissibility, that the asserted expertise be determined by the trial judge to be reliable. Reliability is usually characterized as a dichotomous attribute of evidence, as if expertise were either reliable or unreliable. This article argues that making progress in the development of meaningful and appropriate restrictions on the admissibility of expert testimony requires that we abandon this conceptualization and understand the implications of endorsing a gradational notion of reliability in which evidence can be more or less reliable and in which a comparative assessment of reliability is prominent. Consistent with …

The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski

Faculty Publications

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.

The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …

The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre Mulligan, Aaron K. Perzanowski

Faculty Publications

Late in 2005, Sony BMG released millions of Compact Discs containing digital rights management technologies that threatened the security of its customers' computers and the integrity of the information infrastructure more broadly. This Article aims to identify the market, technological, and legal factors that appear to have led a presumably rational actor toward a strategy that in retrospect appears obviously and fundamentally misguided.

The Article first addresses the market-based rationales that likely influenced Sony BMG's deployment of these DRM systems and reveals that even the most charitable interpretation of Sony BMG's internal strategizing demonstrates a failure to adequately value security …

Copyright Lochnerism, Raymond Shih Ray Ku

Faculty Publications

Part I of this essay outlines the conflict between copyright and the First amendment as well as, the complementary argument for reconciling copyright and free speech, as it has been formulated by scholars and the Supreme Court. Part II discusses what I have referred to as the Framers' copyright and the extent to which arguments based upon the Framers' intent in this area may reconcile copyright and free speech. Lastly, Part III argues that reliance upon the complementary argument to deny any role for heightened First Amendment review in copyright cases is subject to two interrelated criticisms of Lochner. By …

Random Numbers, Chaos Theory, And Cogitation: A Search For The Minimal Creativity Standard In Copyright Law, Ralph D. Clifford

Faculty Publications

This article explores the second type of expressive work, those where there is a question if the author’s contribution is qualitatively sufficient, to determine how much creativity and of what type is required to sustain a copyright. Initially, the historic standards of creativity use before Fiest was decided in 1991 will be presented. Then, after a brief discussion of Fiest, the scientific basis of creativity will be explored. Next, the confusion regarding creativity that exists in the lower courts will serve to expose the source of misapplication of the law – a disconnect between how courts perceive creativity and …

Copyright, Derivative Works And Fixation: Is Galoob A Mirage, Or Does The Form (Gen) Of The Alleged Derivative Work Matter?, Tyler T. Ochoa

Faculty Publications

The Copyright Act gives a copyright owner the exclusive right "to prepare derivative works based on the copyrighted work." Does the Copyright Act require that a derivative work be "fixed in a tangible medium of expression" in order to be infringing? Existing case law is contradictory, stating both that a derivative work does not need to be "fixed" but that it does need to be embodied in some "concrete or permanent form." This contradiction stems from the fact that although the statutory language does not appear to require fixation, reading the statutory language literally would render illegal merely imagining a …