Law Commons^™

A State Law Approach To Preserving Fair Use In Academic Libraries, David R. Hansen

David R Hansen

The Evolution Of The Us Drm Debate, 1987-2006, Bill D. Herman

Bill D. Herman

Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While the playing field is still quite slanted toward stronger copyright, the politics around the issue are much messier and less predictable. This study, a detailed political and legislative history of the major proposals regarding copyright and digital rights management from 1987 to 2006, illustrates how this policy dynamic has changed so drastically. In 1987, there was no organized opposition to copyright’s expansion. By 2006, however, there was a substantial coalition of …

Why Full Open Access Matters, Michael W. Carroll

Michael W. Carroll

First Amendment Based Copyright Misuse, David S. Olson

David S. Olson

We are at a crossroads with respect to the underdeveloped equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or—if judges accept the proposal of this Article—courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control others’ speech. The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new …

Copyright Basics, B. Douglas Robbins

B. Douglas Robbins

In this paper we discuss the fundamentals of copyright law: what sort of works are protected by copyright, what sort of works are not protected, how copyright protection operates, the term of copyright protection, and what the consequences are for copyright infringement.

Harvesting Intellectual Property: "Inspired Beginnings" And "Work Makes Work," Two Stages In The Creative Processes Of Artists And Innovators, Jessica M. Silbey

Jessica Silbey

This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents, and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists, and engineers about how and why they create and innovate. It also collects stories from their employers, business partners, managers, and lawyers about their role in facilitating the process of creating and innovating. The book’s aim is to make sense of the intersection between intellectual property law and creative and innovative activity, specifically to discern how intellectual property intervenes in the careers of the …

The Power Of Music: Applying First Amendment Scrutiny To Copyright Regulation Of Internet Radio, Amanda Reid

Amanda Reid

The Sine Qua Non Of Copyright Is Uniqueness, Not Originality, Samson Vermont

Samson Vermont

The Supreme Court tells us originality is the sine qua non of copyright. I argue uniqueness is. Copyright only protects unique work – work no one created before (novel) and no one could independently create after (unrepeatable).

The Court also tells us originality has two components: independent creation by the author and creativity. But they are mere heuristics for uniqueness. Independent creation is over-inclusive; creativity is both over- and under-inclusive. They do not offset each other, so gaps remain. Courts plug most of the gaps with limiting doctrines and the substantial similarity standard. To put it imprecisely: (independent creation) + …

Results-Oriented Jurisprudence: A Second Circuit Panel Meets J. D. Salinger Coming Through The Rye, Kathleen (Kate) M. O'Neill

Kathleen M. O'Neill

ABSTRACT The Second Circuit’s 2010 decision in Salinger v. Colting has been widely noticed for vacating a preliminary injunction J. D. Salinger obtained against distribution in the U.S. of Fredrik Colting’s novel, 60 YEARS LATER – COMING THROUGH THE RYE. In an opinion by Judge Guido Calabresi, the panel adopted the standard for equitable relief from eBay, Inc. v. MercExchange (U.S. 2006), overruled circuit precedent, and held that henceforth district courts must find, not presume, that irreparable harm is in fact likely before enjoining a copyright defendant’s activities. This is the first article to observe that what the Second Circuit …

Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright And The Birth Of Shakespeare Scholarship, Jeffrey M. Gaba

Jeffrey M. Gaba

In 1709, Jacob Tonson, the most significant publisher of his age, purchased the “copyright” to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare’s popularity and the critical study of his work. This article discusses the significance of copyright to the Tonsons’ publication decisions. It suggests that the Tonson copyright did not significantly “encourage” their contributions to Shakespeare scholarship. …

The Content Of Their Characters - J.D. Salinger, Holden Caulfield And Fredrik Colting, Kathleen (Kate) M. O'Neill

Kathleen M. O'Neill

This paper analyzes J. D. Salinger’s recent suit against Fredrik Colting for infringing Salinger’s copyright in THE CATCHER IN THE RYE and its character Holden Caulfield. The case has been widely noticed because the Second Circuit extended to copyright cases a heightened standard for injunctive relief that requires evidence of irreparable harm. Meanwhile, however, the court’s certainty that Salinger should prevail on the merits has escaped much critique. To begin, I argue that the district court misread Colting’s novel by mistaking his metafiction for a conventional sequel. I suggest two practical litigation strategies to avoid this outcome. Next, I fault …

Bugs For Sale: Legal And Ethical Proprieties Of The Market In Software Vulnerabilities, Taiwo Oriola

Taiwo Oriola

Software vulnerabilities are inherent errors or mistakes in software programming and designs, and arguably the weakest link in digital information architecture with high propensity for rendering information systems infrastructure susceptible to compromise and hacking. Given the increasing reliance of the global economy on digital platforms with concomitant imperatives for securing sensitive intelligence, business and personal data, the need for continual corrective patch of perennially recurring critical software bugs is at once urgent and sacrosanct. This has precipitated research and a thriving market in software vulnerabilities, an integral element of the burgeoning multi-million dollars information security industry that epitomizes the externalization …

Vernor V. Autodesk: Power To The...Producers?!, Elizabeth F. Wilhelm

Elizabeth F. Wilhelm

Vernor v. Autodesk, a recent case from the Ninth Circuit, threatens the very core of the first sale doctrine. Vernor radically alters the test for determining whether a transfer of a physical copy of copyrighted material is a sale or a license for the purposes of the first sale doctrine. The new test makes a transfer much more likely to be a license than a sale, possibly extending copyright protection beyond what is called for in the Copyright Act and extending the use of licensing in more media than just computer software. Many resale industries face the peril of widespread …

Triggering Infection: Distribution And Derivative Works Under The Gnu General Public License, Theresa Gue

Theresa Gue

Imagine that Microsoft discovers that its profitable program, Microsoft Word, contains lines of code borrowed from an open-source software program. Further imagine that as a result of this oversight, all users of Microsoft Word now have a license to freely distribute, reproduce, and modify Word, and Microsoft is required to provide the source code to users in order to facilitate such actions. This is the exact scenario envisioned and feared by many corporations today. It is also the reason why the GNU General Public License (“GPL”), the most popular open-source license in the world, is also the most feared. The …

Insights From Psychology For Copyright's Originality Doctrine, Cameron J. Hutchison

Cameron J Hutchison

The discipline of psychology has much to offer the law of copyright. For example, determining whether or not a work is original in a legal sense implicates, and may be enriched by, the psychology of creativity. This paper is a foray into the linkage between psychological understandings of creativity and the legal standard of originality. While the methodologies and approaches to the psychological sub-discipline of creativity are many, certain frameworks are chosen which seem most relevant and probative to the task: psychoanalysis (specifically, Jungian psychoanalysis), experimental psychology (specifically, the cognitive science of creativity or “cognitive creativity”), and social psychology (specifically, …

Sampling, Looping, And Mashing … Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans

Tonya M. Evans

This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship.

For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) …

Marca Corporal, Derecho De Propiedad Intelectual (Derecho De Tatuajes), Rodolfo C. Rivas Rea Esq., Marco A. Vargas Esq.

Rodolfo C. Rivas

The authors go back to the origins of tattoos and trace its way into mainstream pop culture. In doing so, they analyze the legal implications of tattoos relating to IP through various brief case studies.////////////////////////////////////////////////////////////////////////////////////////////////Los autores se remontan a los orígenes de los tatuajes y trazan su camino dentro de la cultura pop. Paralelamente, analizan las implicaciones jurídicas de los tatuajes a través de diversos casos.

Copyrightability Of Choreography, Shawn Patrick Nee

shawn nee

Many choreographers are unaware of the laws that protect their works. This ignorance is not unwarranted. Dance, one of the oldest forms of art, is also one of the most seldom discussed subjects in the court system. This paper aims to discuss the copyrightability of choreography and the current customs of the dance community that attempt to work around the law. This paper is written in hopes to educate choreographers on the laws that protect the works into which they put their whole lives.

Readers' Copyright, Jessica Litman

Jessica Litman

This essay is part of a project intended to help reclaim copyright for readers, listeners, and viewers. A system of copyright protection makes little sense unless it is designed to encourage the use and enjoyment of the works it induces authors to create and publishers to disseminate. I argue that a clear-eyed examination of copyright's history reveals that solicitude for readers and members of the audience is, in fact, deeply encoded in copyright's DNA. Recently, readers' interests have faded in apparent importance in the copyright scheme in ways that have unbalanced the copyright system, and undermined public support for copyright …

Protection Of Traditional Knowledge: Trade Barriers And The Public Domain, David R. Hansen

David R Hansen

El "Product Placement" En El Cine, Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq.

Rodolfo C. Rivas

The authors discuss briefly the history of product placement in film citing several examples. Then, they analyze the current state of regulation and look forward at what lies ahead, as product placement has become ingrained in the entertainment industry.///////////////////////////////////////////////////////////////////////////////////////////////Los autores analizan de una forma breve la historia del emplazamiento de productos o product placement en el cine, utilizando varios ejemplos. Después se adentran en el estado actual de la regulación y miran hacia el futuro de la industria.

Pirates In The Family Room: How Performances From Abroad, To U.S. Consumers, Might Evade Copyright Law, Tom W. Bell

Tom W. Bell

What will international copyright law look like in ten years? It will doubtless offer many different facets and will, as at present, elude any comprehensive portrait. This brief paper thus focuses on just one plausible and interesting scenario: Parties overseas will come to offer unauthorized performances of copyrighted works to consumers in the United States, a practice that will rouse the ire of copyright holders but that the Copyright Act will do little to stop. Depending on where the transmitted performances take place, legally speaking, they might not qualify as infringing under the Act. Even if they do qualify as …

A “License To Read”: The Effect Of E-Books On Publishers, Libraries, And The First Sale Doctrine, Rachel A. Berube

Rachel A Berube

E-books are rapidly displacing sales of books and transforming the way the American public understands and accesses information. Yet as e-books grow in popularity, the threat of piracy grows alongside them. Thousands of people search for pirated books online every day, and more are likely to follow as e-books become the norm rather than the exception. To displace this threat, publishers convinced Congress to abandon the first sale doctrine in favor of a market theory that allowed publishers to license, rather than sell, their copyrighted works.

Yet a decade later, Congress’ decision has not only failed to ensure publishers’ continued …

Defining Criminal Liability For Primary Acts Of Copyright Infringement: The Singapore Experience, Cheng Lim Saw, Susanna Leong

Cheng L Saw

No abstract provided.

Recent Developments In Intellectual Property Law In Nigeria, Ufuoma Barbara Akpotaire

Ufuoma Barbara Akpotaire

Key Point – This article provides an overview of the developments in the field of Intellectual Property (IP) in Nigeria and highlights key issues in 10 recent judgments on IP Law in Nigeria. The cases are organized thematically according to the type of Intellectual Property Rights (IPRs) protected under the Nigerian legal system such as trademarks, copyrights, patents, and designs. The decision to pen this Article is borne out of a conversation with a colleague in New York, who seemed surprised to learn that I had worked as an IP lawyer in Nigeria. My colleague was aware of the existence …

Warranting Rightful Claims, Karen E. Sandrik

Karen E. Sandrik

Damage awards for patent infringement have sky-rocketed and sparked significant debate in recent years. A part of this patent damage debate focuses on non-practicing entities, or so-called “patent trolls.” A patent troll is a patent owner that demands a royalty based on patented technology, yet does not actually make use of the technology to provide an end product or service. Patent trolls are known for their aggressive and opportunistic behavior. Their strategy is simple: create nuisance and inflict fear. Often, patent trolls employ this strategy against the buyers of goods that use the patented technology. Increasingly, those buyers are availing …

Museum And Royalties: A Proposal To Facilitate Loans, Daniella Fischetti

Daniella Fischetti

This paper will consider the ways in which the principles of copyright may be extended to otherwise unprotected works thereby allowing for a system of royalties, similar to that used by ASCAP or BMI in the music industry, applicable to cultural property located outside its source county and of disputed provenance and legal controversy. While a system of royalties is predicated on the ownership of a copyright of a work in a fixed, tangible form, antiquities and other types of cultural property predate copyright, placing them in the public domain. By comparing the underlying ideas of copyright and intellectual property …

Copyright And The Vagueness Doctrine, Bradley E. Abruzzi

Bradley E Abruzzi

The Constitution’s void-for-vagueness doctrine is itself vaguely stated. The law does little to describe at what point vague laws — other than those that are entirely standardless — might be unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three “collateral factors” that affect its inclination to invalidate a law for vagueness, including (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Against this backdrop, it is fair to say that copyright law, in its current configuration, does …

Internet Creativity, Communicative Freedom And A Constitutional Rights Theory Response To “Code Is Law”, Christoph B. Graber

Christoph B. Graber

The code that regulates cyberspace empowers private bodies to set standards of Internet access and use, which are often not visible. Content filtering, as a response to copyright infringement, or models differentiating between various data transmissions are examples of measures that have been undertaken by Internet intermediaries. Arguably, they are necessary to protect intellectual property and digital business. Emanating from private bodies, such measures are beyond the reach of constitutional rights, although they may strongly impact conditions of communicative freedom and creativity on the Internet. This paper endeavours to explore from a law and society perspective whether a theory of …

Rethinking Intangible Cultural Heritage And Expressions Of Folklore: A Lesson From The Fcc’S Localism Standards, Jon M. Garon

Jon M. Garon

This article reviews the underlying societal imperatives reflected in a policy of intangible cultural heritage and the intellectual property-like regimes being developed to protect these interests. It contrasts UNESCO efforts with more narrowly tailored efforts of WIPO and juxtaposes those approaches with the localism model developed under the FCC. While aspects of the WIPO protection efforts focusing on trademark-like and trade secret-like protections benefit the people and cultures these policies hope to serve, additional copyright-like protections will likely do more harm than good. Instead, global public policy will be far better served through emphasis on the FCC's localism attributes of …