Law Commons^™

Performance Anxiety: The Internet And Copyright's Vanishing Performance/Distribution Distinction, Jonah M. Knobler

Jonah M. Knobler

This article attempts to answer two related questions on the subject of copyright law in the Internet age: First: Under present U.S. copyright law, does the delivery of a digital music file over the Internet as a “download” necessarily implicate the copyright holder’s right of public performance, above and beyond the obviously implicated rights of distribution and reproduction, as the music industry claims it does? This article examines the recent decision in United States v. ASCAP (S.D.N.Y. 2007), which held that it does not. The article also independently applies the major techniques of statutory interpretation to the relevant portions of …

The Freedom To Copy: Copyright, Creation And Context, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Although much separates them musically, George Harrison and Michael Bolton share a common legal fate. Both have been held liable in copyright infringement cases in which a court articulated theories of liability based on subconscious infringement. This Article discusses how decisions in the Bolton, Harrison, and other copyright infringement cases reflect a common failing. Such decisions highlight the incomplete nature of the theories of creativity and creation processes in copyright doctrine. After discussing current approaches to questions of creation, this Article suggests ways in which copyright theory can better incorporate a contextualized understanding of creativity and creation processes. Creativity in …

Making Money Making Music, Alan E. Garfield

Alan E Garfield

No abstract provided.

Assessing The Moral Legitimacy Of Statutory Damages In Copyright , Ben R. Kociubinski

Ben R Kociubinski

No abstract provided.

Submission: Draft Guidelines On The Infringement Notices And Forfeiture Of Infringing Copies And Devices Scheme, Copyright Amendment Regulations 2006, Kimberlee G. Weatherall

Kimberlee G Weatherall

Towards A Functional Definition Of Publication In Copyright Law, Thomas F. Cotter

Thomas F. Cotter

The questions of whether, when, and where an author has “published” her work of authorship traditionally has given rise to, and continues to give rise to, numerous consequences, including the protectability of the work under U.S. copyright law; the running of various time periods, including a grace period for registering the copyright and the termination of copyright in works made for hire; the applicability of fair use and other exceptions to copyright liability; and the imposition of the duty to deposit two copies of the work with the Library of Congress. Although the 1976 Copyright Act, unlike its predecessors, includes …

Property, Persona, And Publicity, Deven R. Desai

Deven R. Desai

This article focuses on a paradox latent within the nature of creative phenomenon: although one can find strong arguments for control over intangible creations during one’s life, these arguments falter if not fail after the creator dies. Two interconnected problems posed by the growth of online creation illustrate the problem. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people’s property all the time. In addition, when one dies, some …

Copyright And Creativity, Dennis S. Karjala

Dennis S Karjala

This article challenges the commonly articulated position that copyright is designed for the protection of “creativity” and argues that the Supreme Court in the well known case of Feist v. Rural Telephone Service was wrong in appending, as a constitutional matter, a creativity requirement for copyright protection. The central thrust is that “creativity” is useless in making the basis intellectual property determination of whether a given work should be (a) protected under copyright, (b) protected under patent, or (c) not protected at all under intellectual property law, because all three categories routinely include creative works, even highly creative works, within …

Copyright And Creativity, Dennis S. Karjala

Dennis S Karjala

This article challenges the commonly articulated position that copyright is designed for the protection of “creativity” and argues that the Supreme Court in the well known case of Feist v. Rural Telephone Service was wrong in appending, as a constitutional matter, a creativity requirement for copyright protection. The central thrust is that “creativity” is useless in making the basis intellectual property determination of whether a given work should be (a) protected under copyright, (b) protected under patent, or (c) not protected at all under intellectual property law, because all three categories routinely include creative works, even highly creative works, within …

The Cultural Property Claim Within The Same Sex Marriage Controversy, Marc R. Poirier

Marc R. Poirier

The Cultural Property Claim within the Same Sex Marriage Controversy.

Marc R. Poirier, Seton Hall University School of Law

This article argues that traditionalist opposition to same sex marriage can be understood as a cultural property claim -- the sort of claim that is often made by Native American tribes and other subordinated cultural groups of a right to control the uses of sacred or culturally central rituals, places and objects. Ultimately, it disagrees with the traditionalist position, and argues that traditionalists should not be allowed to maintain a property-like right to exclude same sex couples from marriage. Nevertheless, the …

"Copynorms, Black Cultural Production And The Debate Over African-American Reparations, Kevin Greene

Kevin Greene

The cultural production of black artists has been central to American society, yet virtually ignored in intellectual property scholarship. This article exlpores how the historical appropriation of works of black authorship ties into the raging debate over black reparations, and contends that providing atonement and apology for cultural appropriation can provide not only redress for the great injustice of cultural appropriation, but can also help inculcate "copynorms" favoring the protection of intellectual property at time when copyright law faces enormous challegnes to its legitimacy.

Who Is Your Starting Pitcher? - Roger Clemens Or #22 On The Yankees?: Why Major League Basaeball Players Should Have Rights In Their Names. , Jason B. Baum

Jason B. Baum

The author examines how complex intellectual property issues affect fantasy baseball. Using CBC Distribution v. Major League Baseball, the author explores why the right of publicity should protect Major League Baseball players from the unauthorized use of Major League Baseball players' statistics in conjunction with their names.

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

Zvi S Rosen

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 …

Fair Use And Copyright Overenforcement, Thomas F. Cotter

Thomas F. Cotter

Economic analysis has long suggested that there are two distinct categories of cases in which the fair use defense, which permits the unauthorized reproduction and other use of copyrighted materials, should apply: first, when the transaction cost of negotiating with the copyright owner for permission to use exceeds the private value of the use to the would-be user; and second, when the individual use is thought to generate some positive externality, such that the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn may exceed the value of the …

Le Droit De Suite: An Unartistic Approach To American Law, Jonathan D. Tepper

Jonathan D Tepper

This article investigates the expansion of copyright law to include the implementation of the droit de suite or resale royalty on the sale of art in the United States. The articles concludes that royalty rights should not be implemented in the United States because it not only conflicts with many common law doctrines, but also fails to further the goals enumerated in the Copyright Clause of the U.S. Constitution.

The provision and treatment of royalty rights on the resale of art marks a major distinction in the treatment of art between civil law countries such as France and common law …

Domain And Forum: Public Space, Public Freedom, Rebecca Tushnet

Rebecca Tushnet

How should we think about the relationship between copyright and the First Amendment? Many answers have been proposed to that question, and this short essay does not attempt a comprehensive assessment of the debate. Rather, it examines the similarities and divergences between copyright and First Amendment principles using two points of comparison: the public forum and the public domain. A “public forum” in First Amendment law is a place held in trust by the government for use by the people, whether generally (a traditional public forum) or for specific topics (a limited public forum). By “public domain,” I refer to …

Section 512 In The Educational Context, Laura Quilter

Laura Quilter

No abstract provided.

Teaching Intellectual Property As A Skills Course , Malla Pollack

Malla Pollack

Students can gain experience in practical skills in substantive courses if professors spend the time to create appropriate projects. This article demonstrates by providing reproducible projects involving non-competition agreements, trademarks/trade dress, copyright, and patent. The article also explains the how projects can be expanded and how they can be transposed between counseling and litigation settings.

This paper is part of a symposium entitled “Reflections on Legal Education: How We Teach, How They Learn".

Lawful Personal Use, Jessica Litman

Jessica Litman

Whenever someone makes a copy of a copyrighted work, that copy is either authorized by the copyright owner, permitted by some express provision of the copyright statute (such as the ephemeral copy provision in section 112 or the fair use provision in section 107), or infringing. That's what we tell our colleagues and what we teach our students. But most of us don't actually believe it, and this article argues that that understanding of the copyright law is wrong. I make this argument by examining the copyright law through the lens of personal use. Unlike many other jurisdictions, the United …

The Impact Of Regional Trade Areas On International Intellectual Property Rights, Brian Cimbolic

Brian Cimbolic

This article seeks to explore the impact of Customs Unions and Free Trade Areas (Regional Trade Areas, or “RTAs”) on both the developing world’s intellectual property concerns and on the international trade principle of most favored nation status. By examining various RTAs such as the North American Free Trade Agreement (“NAFTA”) and the upcoming Free Trade Agreement of the Americas (the “FTAA”), along with several smaller RTAs, this paper seeks to show that RTAs are undermining the principles of the International Trade Agreements they are a supposed to be a part of by refusing to apply MFN principles and by …

Fair Use And Copyright Overenforcement, Thomas F. Cotter

Thomas F. Cotter

Copyright’s fair use doctrine permits the unauthorized reproduction and adaptation of copyrighted expression under a variety of circumstances. Economic analysis posits that these circumstances can be roughly grouped into two categories: first, when the transaction costs of negotiating with the copyright owner for permission exceed the value of the use to the would-be user; and second, when the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn exceeds the value of the use to the individual user. Considerable anecdotal evidence, however, suggests that would-be users are often deterred from …

Fixing Fair Use, Michael W. Carroll

Michael W. Carroll

The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another's copyrighted expression under certain circumstances. The doctrine's extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another's copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a …

Re-Evaluating Declaratory Judgment Jurisdiction In Intellectual Property Disputes, Lorelei Ritchie De Larena

Lorelei Ritchie de Larena

The Declaratory Judgment Act of 1934 was quickly tagged by the U.S. Supreme Court as a simple procedural measure. Whether simple or procedural, the addition of the declaratory judgment option has dramatically increased the rights of would-be defendants. This is of special interest in patent law, where without the ability to initiate legal action, an alleged infringer would typically have no recourse but to either drop a lucrative business and lose a massive investment, or to languish in legal limbo while potentially accruing liability for treble damages. The option of a mirror-image lawsuit removes the patentee’s ability to unilaterally decide …

My Fair Ladies : Sex, Gender, And Fair Use In Copyright, Rebecca Tushnet

Rebecca Tushnet

No abstract provided.

Fair Use And Copyright Overenforcement, Thomas F. Cotter

Thomas F. Cotter

Copyright’s fair use doctrine permits the unauthorized reproduction and adaptation of copyrighted expression under a variety of circumstances. Economic analysis posits that these circumstances can be roughly grouped into two categories: first, when the transaction costs of negotiating with the copyright owner for permission exceed the value of the use to the would-be user; and second, when the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn exceeds the value of the use to the individual user. Considerable anecdotal evidence, however, suggests that would-be users are often deterred from …

Response To The Library Of Congress Request For Comment On Specific Issues In Section 108., Denise Troll Covey

Denise Troll Covey

No abstract provided.

On The Legal Consequences Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco

Christopher J. Buccafusco

The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for …

Total Upgrade: Intellectual Property Law Reform In Russia, Sergey Budylin, Yulia Osipova

Sergey Budylin

Russia has undertaken a large-scale intellectual prop-erty (IP) law reform. The reform abolishes most of the ex-isting IP legislation and instead puts all IP issues into the new Fourth Part of the Civil Code. The new legislation was signed into force at the end of 2006, but it was made effective starting from January 1, 2008. While the new leg-islation largely restates, consolidates, and refines the exist-ing legislation, it also introduces some concepts not known to Russian law before (such as “unified technology”). Im-portantly, the new Russian IP legislation addresses issues currently being a matter of international concern (such as …

The Denial Of A General Performance Right In Sound Recordings: A Policy That Facilitates Our Democratic Civil Society?, Shourin W. Sen

Shourin W Sen

John Coltrane, as a musical performer, is not granted the right to exclude others from performing his recording of ‘My Favorite Things’ on the radio, television, or at a public setting such as a restaurant or hotel. Under the Copyright Act, only Rogers and Hammerstein, the composers of ‘My Favorite Things,’ are granted the right to authorize the analog public performance of the composition. But musical performers can claim the same royalties granted to composers by simply writing their own songs. Congress and legal scholars have failed to realize that, over the last six decades, performers have responded to the …

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

Alina Ng

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 …