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Draft Of Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide - 2019, Wendy J. Gordon
Draft Of Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide - 2019, Wendy J. Gordon
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This Paper was presented at the conference, "A Celebration of the Work of Wendy Gordon," at Boston University school of law on June 14, 2019. In presented an earlier draft under the title, Transformative Use, Proximate Cause, and Copyright, at the University of Texas at Austin on March 23, 2017. Under the title, Inegrating Judge Legal's Theory of Fair Use into on Economic View of Copyright Law: From "proximate Cause" to "Transormative Use," the paper was also presented at the March, 2016, "Conference on IP and Private Law," held at Harvard Law School. I am grateful to …
Useful Articles In Copyright: Proposed Amendments To Section 101 And 114 - 2014, Wendy J. Gordon
Useful Articles In Copyright: Proposed Amendments To Section 101 And 114 - 2014, Wendy J. Gordon
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The origin of the definition probably lies with everyone's favorite protean decision, Baker v. Selden, 101 U.S. 99 (1879). For example, in 1924, the Second Circuit borrowed from Baker in upholding the copyright in 'Sparky,' a stuffed doll in the shape of a horse. The crucial distinction, which the court quoted from Baker, was the line between, on the one hand, "designs or pictorial illustrations addressed to the taste" whose "object [is] the production of pleasure in their contemplation," and, on the other hand, "methods of useful art [that] have their final end in application and use. "
Draft Of Product Design: The Misfit Of Intellectual Property Law - 2011, Wendy J. Gordon
Draft Of Product Design: The Misfit Of Intellectual Property Law - 2011, Wendy J. Gordon
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The collection of legal rights commonly labeled "intellectual property" does not reflect any comprehensive master plan. Indeed, the label itself does a disservice in suggesting a set of laws with some coherence, cohesion, or at least commonality. 1 In fact, the various laws governing so-called intellectual property have evolved to address disparate concerns, at different times, and through distinct legal tools. 2 As a result, the canvas of intellectual property laws looks more like a messy collage - with overlaps, unmarked or blank spaces, and jagged edges - than a neat landscape characterized by careful planning and harmony.
Speech In The Role Of Fiduciary Law And Trust In The Twenty-First Century, Wendy J. Gordon
Speech In The Role Of Fiduciary Law And Trust In The Twenty-First Century, Wendy J. Gordon
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As someone who is not a specialist in the area, I am grateful to be included in today's conference. I wanted to be here to mark the admiration I have for Professor Frankel. Like Ken Simons, I have benefited from Tamar's knowledge base which is both deep and wide, her lively and inexhaustible curiosity, her imagination, and the immense intellectual stimulation she inevitably provides. Her new book under discussion today reveals some of her extraordinary powers, in its skillful use of materials from sources as diverse as Hammurabi and Grotius, from histories ancient and modem, traditions religious and secular, and …
Draft Of Beck Lecture - 2010, Wendy J. Gordon
Draft Of Beck Lecture - 2010, Wendy J. Gordon
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I am grateful to the wonderful BU community that has taught me so much, and to those who made this event possible. I thank Dean O'Rourke for hosting this wonderful event, Mary Gallagher, Cornell Stinson and Erin Elwood for organizing it, and I thank you all for coming. I am honored to follow Bill Ryckman in the Chair, a man I admire. Most especially I thank Phil Beck for his generosity to the Boston University School of Law in funding this Chair. It's flattering to me having been chosen its recipient, and flattering to the school that Phil chose us …
Draft Of Beck Speech - 2010, Wendy J. Gordon
Draft Of Beck Speech - 2010, Wendy J. Gordon
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I come here with a sense of gratitude, to the intellectually stimulating BU community of students, staff and faculty, that has taught me so much, and grateful today especially to those who made this event possible. I would like to thank you all for coming, thank Dean O'Rourke for hosting this wonderful event, Mary Gallagher and Cornell Stinson for organizing it, and most especially I thank Phil Beck for his generosity to the Boston University School of Law in funding this Chair. It's immensely flattering to me having been chosen the initial recipient, and flattering to the school that Phil …
Copyright's Derivative Works Doctrine And An Upside-Down Proviso, Wendy J. Gordon
Copyright's Derivative Works Doctrine And An Upside-Down Proviso, Wendy J. Gordon
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It is sometimes observed that questions of "justice in acquisition" do not much arise any more. However, judges face those questions on a daily basis in courtrooms adjudicating copyright and patent matters. In United States copyright law, for example, an intriguing dilemma regarding derivative works has developed that raises what appears to be a new issue regarding John Locke's sufficiency proviso.
Draft Of Copyright's Derivative Works Doctrine And An Upside-Down Proviso - 2010, Wendy J. Gordon
Draft Of Copyright's Derivative Works Doctrine And An Upside-Down Proviso - 2010, Wendy J. Gordon
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It is sometimes observed that questions of'justice in acquisition" do not much arise any more. However, judges face those questions on a daily basis in courtrooms adjudicating copyright and patent matters. In United States copyright law, for example, an intriguing dilemma regarding derivative works has developed that raises what appears to be a new issue regarding John Locke's sufficiency proviso.
Outline Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Outline Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
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We want to believe we have intrinsic importance. We want to believe our loved ones do too. That's one of the things that makes age and death so scary: at some point no one will know that green dress was the one grandma wore to your parents' wedding, all that matters to you will no longer matter to anyone. But we want to feel that living DID matter.
Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
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Recall Tina Turner's famous song, where the singer pounds the audience repeatedly with the insistent apparent question: "what's love got to do with it!?" We know she's not really asking, "What's love got to do with it"; she's making a statement. What she wants to do is deny love's force, and free herself from its disappointment. The singer's seeming repudiation of love is an attempted eradication of something that is definitely still part of her.
Handwritten Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Handwritten Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
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At fifteen I found myself looking at a tree against the sky and being filled up with something bigger than I could contain. It was a sensation that demanded to be poured into something. The best label I could find for the emotion was "gratitude": Gratitude for the world I had not made, but had been given.
Lecture Draft Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Lecture Draft Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
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I've taken advantage of Tom's invitation to write a paper on religion and copyright that was "informal in format, in keeping with the informal nature of this gathering". What I have had to say on the Jewish law of gleaning is already on record; 1 what you'll read here are more like meditations. Thinking about the connections between art, spirituality and law has touched some very personal issues for me. Further, I know that everything I have to say is partial. I hope what I am about to give you will nevertheless raise some questions of interest.
Draft For Harmless Use: Gleaning From Fields Of Copyrighted Works - 2008, Wendy J. Gordon
Draft For Harmless Use: Gleaning From Fields Of Copyrighted Works - 2008, Wendy J. Gordon
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My inquiry is into whether harmless uses of property should give the property owner a right to sue. Under current law, harmless trespasses to land and to copyrights and patents do indeed give rise to liability. Should they? Neither moral philosophy, political science nor economics deals well with the harmless free-rider. The possibility I'm exploring-- just exploring at this stage-- is the following: that where inexhaustible products like information become a primary source of value, our institutions might serve us better if instead of mandating payment for harmless use via legal compulsion, payment for harmless use be left to the …
Email To Bob Bone Re: Idea Expression Dichotomy, Wendy J. Gordon
Email To Bob Bone Re: Idea Expression Dichotomy, Wendy J. Gordon
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This is to recap our discussion, to make sure we're on the same page, and carry this a bit further. I'm very excited.
Fair Use, "Fared Use," And Public Rights: Amending Section 107 - Draft - 08-19-2007, Wendy J. Gordon
Fair Use, "Fared Use," And Public Rights: Amending Section 107 - Draft - 08-19-2007, Wendy J. Gordon
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Under provocative titles like "Fared Use', and '"the end of friction," commentators argue about the viability of copyright's fair use doctrine in a word of instantaneous transactions. As collecting societies such as the Copyright Clearance Center extend their licensing prowess, and Internet-based electronic commerce has made it possible to purchase digital copies with the click of a mouse, the suggestion is sometimes made that fair use could or should disappear. Decisions in the Second and Sixth Circuits have hinted that fair use may be foreclosed if a licensing market exists or is possible. The presence of "traditional, reasonable, or likely …
Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
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Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …
Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
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Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …
Draft Of Fair Use And Face-To-Face Bargaining - 2007, Wendy J. Gordon
Draft Of Fair Use And Face-To-Face Bargaining - 2007, Wendy J. Gordon
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Alex has a ten-year-old cassette of a favorite movie. Unfortunately, she does not have a video cassette player. She wants to copy the movie onto her iPod. To do this, she borrows a VCR from a friend, runs a cable to a video capture port on my computer, reformats the file into something the iPod can read, and sends the file to the iPod, which she will use to watch the movie in the future. After the file is securely on the iPod, she will delete all records of the movie from my computer. Destroy the original VHS copy seems …
Footnote Draft Of Render Copyright Unto Caesar - 2004, Wendy J. Gordon
Footnote Draft Of Render Copyright Unto Caesar - 2004, Wendy J. Gordon
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This essay, however, does not press any particular agenda; rather, it tries to make our thinking about the topic more flexible. It is my hope that some conduct-specific rule as was adopted in the defamation context will eventually be adopted for intellectual property. Copyright law cannot continue forever closing its eyes and hoping its house will stop being haunted.
Draft Of Rendering Copyright Into Caesar - 2003, Wendy J. Gordon
Draft Of Rendering Copyright Into Caesar - 2003, Wendy J. Gordon
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This article makes a simple suggestion. Copyright rules by money, so let it rule the money-bound. Let a different set of rules evolve for more complex uses, particularly when the users have a personal relationship with the utilized text. Copyright. When new artists make transformative use of existing works in settings not characterized by pre-use commercial negotiations, copyright should avoid imposing a distorting burden.
Notes On Dissemination: The Prop/Tort Distinction - 2002, Wendy J. Gordon
Notes On Dissemination: The Prop/Tort Distinction - 2002, Wendy J. Gordon
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Most of the proviso-based reasons for restricting property rights come into play after dissemination.[1] Is there any other way in which dissemination matters? Yes; the point of dissemination demarks a crucial shift in the Kind of legal protection that must be given- and thus the Kind of institutional decisions that must be made- if the creator is to be protected.
Classroom Lecture For Copyright Law, Wendy J. Gordon
Classroom Lecture For Copyright Law, Wendy J. Gordon
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The differences between direct, vicarious and contributory liability, Section 512 in related matters. Alright, now let's move on to the next question, which is criminal liability. You read some material on that. And the basic lessons that I want you to take from the material are the following. First, notice that federal copyright law does not impose criminal liability easily as ordinary laws of tangible property do. And I think that that's a good thing. Remember that guy in Les Miserables who's pursued for stealing a loaf of bread. Stealing in the sense of copying one song would not make …
Draft Of Ralph Sharp Brown, Intellectual Property And The Public Interest - 1999, Wendy J. Gordon
Draft Of Ralph Sharp Brown, Intellectual Property And The Public Interest - 1999, Wendy J. Gordon
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Ralph Sharp Brown crossed out the "Junior" that followed his name after his father died. In explanation of the hand-altered stationery, he said (if my recollection holds), "I'm the only one left now." Now, after Ralph's death, there may remain no Ralph Sharp Browns. But there are many law teachers who continue to wage the campaign that Ralph made his life work: to save an interdependent society from unnecessary and stagnating restraints on liberty. In the intellectual property area, Ralph sought to teach us that it can be both right and necessary to give individuals the liberty to "reap without …
New Thoughts And Excerpt From On Commodifying Intangibles - 1999, Wendy J. Gordon
New Thoughts And Excerpt From On Commodifying Intangibles - 1999, Wendy J. Gordon
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Here is a ten-page excerpt from! a published piece, followed by some more recent and more random thoughts. Community is not civility. That is, I imagine my ideal community as one where people aren't always sweet to each other; I imagine a community where truth is more important than hurt feelings, and fun is more important than money. I imagine a community of individualists: raucous, iconoclastic. Steve Shiffrin's ROMANCE OF THE FIRST AMENDMENT and Ed Baker's work seems to have the kind of community in mind that I am interested in.
Outline Of Epstein's Possession As The Root Of Title, And Other Matters - 1999, Wendy J. Gordon
Outline Of Epstein's Possession As The Root Of Title, And Other Matters - 1999, Wendy J. Gordon
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While it may be premature to expect a full working out of detail, it is surely time enough for some semblance of a unified theory of intellectual property law to have emerged. That it has not is due to some extent to the very evil which the existence of such a theory (or the beginnings of one) would prevent, namely, the errors that opinions are heir to. Recognizing common themes would help to isolate deviations, and thus help to clarify their nature; whether in a given context a deviation is justified could then be discussed on its own merits, wihout …
Notes On Trademark Monopolies, Wendy J. Gordon, Glynn S. Lunney Jr.
Notes On Trademark Monopolies, Wendy J. Gordon, Glynn S. Lunney Jr.
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Since 1742, when Lord Hardwicke seemingly equated trademark protection with monopoly in one of the first trademark cases, until the mid- 1950s, concerns that trademarks represented a form of illegitimate monopoly effectively constrained the growth of trademark protection. In the twentieth century, Edward Chamberlain became the leading proponent of the trademark as monopoly view with the publication of his work, The Theory of Monopolistic Competition, in 1933. In his work, Chamberlain argued that a trademark enabled its owner to differentiate her products and then to exclude others from using the differentiating feature. By doing so, trademark protection can effectively …
The Economics Of Copyright, Robert G. Bone, Wendy J. Gordon
The Economics Of Copyright, Robert G. Bone, Wendy J. Gordon
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Copyright law protects works of creative expression. At its relatively uncontroversial core lie songs, plays, novels, paintings, and other works of aesthetic value. But copyright is not confined solely to aesthetic subject matter; in many countries, it extends to works of fact, such as biographies, maps, and telephone directories, and to works with practical value. For example, one of the most controversial issues in copyright law today is whether and how much copyright should protect computer programs.
What's Art Got To Do With It?, Wendy J. Gordon
What's Art Got To Do With It?, Wendy J. Gordon
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I would like to thank the Cardozo LR for their invitation to speak, and all those who have taken the time to discuss this issue w[ith] me in the recent past, including my commentator Marci Hamilton. I also thank the audience for its attendance and attention, and I look forward to the criticisms/reactions from all of you and from Prof Hamilton.
Cd-Rom Symposium Transcript One - 1992, Wendy J. Gordon
Cd-Rom Symposium Transcript One - 1992, Wendy J. Gordon
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Enclosed are the corrected pages of the transcript. The article itself will follow shortly.
Draft Of Reality As Artifact: From Feist To Fair Use - 1992, Wendy J. Gordon
Draft Of Reality As Artifact: From Feist To Fair Use - 1992, Wendy J. Gordon
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Lawyers more than most people should be aware that what language calls "facts" are not necessarily equivalent to things that exist in the world. After all, when in ordinary conversation someone says "It's a fact that this [ X ] happened," the speaker usually means, "I believe the thing I describe has happened in the world". But when a litigator says something is a "fact" she often means only that a good faith argument can be made on behalf of its existence. Two sets of fact finders can look at the same event and come to diametrically opposed conclusions-- each …