Law Commons^™

Copyright For A Social Species, Robert E. Suggs

Robert E. Suggs

Arguments about the proper scope of copyright protection focus on the economic consequences of varying degrees of protection. Most analysts view copyright as an economic phenomenon, and the size and health of our copyright industries measure the success of copyright policies. The constitutional text granting Congress the copyright power and the nature of special interest lobbying naturally create this economic focus; but this is a serious mistake. An exclusively economic focus makes no more sense than measuring the nutritional merits of our food supply from the size and profitability of the fast food industry. The expressive culture that copyright protects …

The Anti-Counterfeiting Trade Agreement: An Updated Analysis, Kimberlee G. Weatherall

Kimberlee G Weatherall

This paper provides an updated analysis of the issues posed by negotiations for the ACTA, as at November 2009.

The Google Book Search Settlement And The View From The Public Interest World, Laura Quilter

Laura Quilter

No abstract provided.

Waardering Van Intellectuele Eigensomsrechten, Severin De Wit

Severin de Wit

Waardering van Intellectuele eigendomsrechten is een nog onontgonnen terrein. Bestaande waarderingstechnieken zijn in veel gevallen ontoereikend voor een bruikbare waardering. Omstandigheden die voor een waardering van belang kunnen zijn.

The Imperfect Is The Enemy Of The Good: Anticircumvention Versus Open Innovation, Wendy Seltzer

Wendy Seltzer

Digital Rights Management, law-backed technological control of usage of copyrighted works, is clearly imperfect: It often fails to stop piracy and frequently blocks non-infringing uses. Yet the drive to correct these imperfections masks a deeper conflict, between the DRM system of anticircumvention and open development in the entire surrounding media environment. This conflict, at the heart of the DRM schema, will only deepen, even if other aspects of DRM can be improved. This paper takes a systemic look at the legal, technical, and business environment of DRM to highlight this openness conflict and its effects.

Scholars have described DRM’s failures …

La Belgique : Un Pays De Cocagne Pour Les Créateurs De Dessins Et Modèles ?, Estelle Derclaye

Estelle Derclaye

No abstract provided.

Intellectual Property Protection Or Protectionism? Declaratory Judgment Use By Patent Owners Against Prospective Infringers, Lawrence M. Sung

Lawrence M. Sung

No abstract provided.

From The Mouths Of Babes: Protecting Child Authors From Themselves, Julie Cromer Young

Julie Cromer Young

This article explores the explosion of copyright protection now granted to authors under the age of eighteen, the age of majority in most states. Historically, contracting parties have been able to use the doctrine of infancy to disaffirm contracts they made when they were not yet of legal age. The Internet is changing this. As with most Internet sites, sites targeted at minors require young authors to accept terms of use in order to publish and distribute works online. Those terms and conditions often compromise the copyrights of the child authors, preventing them from reclaiming the licenses once the authors …

Thwack!! Take That, User-Generated Content!: Marvel Enterprises, Inc. V. Ncsoft Corp., Carl M. Szabo

Carl M Szabo

Dear Madam or Sir: As seen in the attached note, I am to make two contributions. First, I address the issue of copyright liability of websites for infringement by the website users. A constant struggle as old as the constitution itself, the issue of copyright protection now makes its way into the virtual world of the internet. While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed could endanger the protection afforded to authors …

I, Thomas F. Cotter

Thomas F. Cotter

Many states confer upon natural persons a “right of publicity” that renders unlawful the unauthorized use of a person’s name or other indicia of identity for purposes of trade. Efforts to reconcile publicity rights with the First Amendment and with principles of copyright preemption, however, have differed radically from one state or circuit to another, as well as within the scholarly community. In this Article, we present a comprehensive framework for integrating both First Amendment and copyright preemption principles into standard publicity analysis. Our framework eliminates much of the incoherence found in contemporary right of publicity case law by adopting …

P2p 'System Caching' – The Copyright Dilemma, Assaf Jacob, Zoe Argento

Assaf Jacob

This paper explores the legal ramifications of the prevalent Internet Service Provider practice of providing caching services to P2P network users. First, the paper describes the P2P industry, its benefits and drawbacks. Then the paper discusses several caching techniques that can be implemented, and indeed are implemented, by ISPs around the globe. These practices allow ISPs to provide clients with better services but, by the same token, expose them to copyright infringement suits by third parties. The article will discuss how copyright law should consider the costs and benefits to the public of P2P caching practices, especially in the application …

Integrating The Right Of Publicity With First Amendment And Copyright Preemption Analysis, Thomas F. Cotter

Thomas F. Cotter

Many states confer upon natural persons a “right of publicity” that renders unlawful the unauthorized use of a person’s name or other indicia of identity for purposes of trade. Efforts to reconcile publicity rights with the First Amendment and with principles of copyright preemption, however, have differed radically from one state or circuit to another, as well as within the scholarly community. In this Article, we present a comprehensive framework for integrating both First Amendment and copyright preemption principles into standard publicity analysis. Our framework eliminates much of the incoherence found in contemporary right of publicity case law by adopting …

Copyright After Death, Deven R. Desai

Deven R. Desai

Should copyright extend after death? In the United States, the duration of copyright is the author’s life plus seventy years. Discussions of copyright often treat pre and post death copyright as equal, holding that the entire length of the term faces uniform problems and fulfills uniform goals. Copyright law operates with a hidden assumption: that copyright after death is the same as copyright during life. Numerous debates over copyright’s duration rely on this post-mortem assumption. In this article, Professor Deven Desai argues that this assumption is false and that copyright’s extension after the author’s death is unjustifiable. He explores the …

Ip And Antitrust: Errands Into The Wilderness, Herbert Hovenkamp

Herbert Hovenkamp

IP AND ANTITRUST: ERRANDS INTO THE WILDERNESS

ABSTRACT

Antitrust and intellectual property law both seek to promote economic welfare by facilitating competition and investment in innovation. At various times both antitrust and IP law have wandered off this course and have become more driven by special interests. Today, antitrust and IP are on very different roads to reform. Antitrust began an Errand into the Wilderness in the late 1970s with a series of Supreme Court decisions that linked the plaintiff’s harm and right to obtain a remedy to the competition-furthering goals of antitrust policy. Today, patent law has begun its …

Copyright Infringement And Harmless Speech, Christina Bohannan

Christina Bohannan

Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required …

Why Typefaces Proliferate Without Copyright Protection, Blake Fry

Blake Fry

Classic economic theory predicts that without copyright protection authors and publishers would not have sufficient incentive to invest the time or money needed to produce or distribute new works, and the public would suffer a shortage. Copyrights are an attempt to solve this problem. By granting a monopoly to the author of an expressive work the government gives him the sole right to copy it. If only the author has this right, authors will get a reasonable rate of return, and thus a sufficient incentive to create new works. However, empirical evidence on whether adequate expressive works would be created …

You Gotta Pay To Play: An Analysis Of Copyright Infringement Actions Brought By Performing Rights Organizations, Ben Thompson

Ben Thompson

This paper, through the tale of the recent case, BMI v. Buckaroo's, explains the typical, almost systemic, process of infringement actions brought by performing rights organizations against licensing venues. The author, Ben Thompson, can be reached at (646) 770-1097 or bthompson@thomplegal.com.

The Author's Rights In Literary And Artistic Works, Alina Ng

Alina Ng

This paper suggests that authorship and creativity, which necessarily precedes the production of literary and artistic works, are products of authentic human expression that the law must encourage in order for works, contributing to the progress of science and the useful arts, to be produced. While the commercial market for literary and artistic works encourages the creation of diverse works to meet popular consumer demand, encouraging the production of works for the commercial market may however result in works, which may lack social, educational and cultural value or utility. Natural law philosophy, which advocates a natural order for society and …

What Is Really Fair: Internet Sales And The Georgia Long-Arm Statute, Ryan T. Holte

Prof. Ryan T. Holte

This article analyzes the current issue of online merchants being forced to defend themselves in foreign jurisdictions during litigation concerning online sales. Part I describes the history of personal jurisdiction from its nineteenth century concerns with territoriality to the twentieth century minimum contacts standard to other, more recent developments. Part II summarizes personal jurisdiction and minimum contacts as applied to the Internet generally and discusses whether Internet sales contain sufficient minimum contacts to satisfy the constitutional prerequisites for the exercise of personal jurisdiction over the seller. Part III analyzes the Georgia long-arm statute as it relates to jurisdiction over persons …

The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel J. Gervais

Daniel J Gervais

Even as a mere conceptual cloud, the term “user-generated content” is useful to discuss the societal shifts in content creation brought about by the participative Web and perhaps best epitomized by the remix phenomenon. This Essay considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation—the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work …

How ‘Choruss’ Can Turn Into A Cacophony: The Record Industry’S Stranglehold On The Future Of Music Business, Andrey Spektor

Andrey Spektor

March of 2009 was a significant month for shaping the battles for the upcoming year. First, the mastermind of the RIAA’s new plan to legalize peer-to-peer file sharing, Jim Giffin, finally gave a presentation about Choruss—an independent entity that will be unveiled in the Fall of 2009. Choruss will aggregate licenses from major record labels and sell them to universities and other internet service providers. The cost would be passed on to users, who would in turn have an all-you-can-download access to music. While Choruss would obviously increase the RIAA’s profits and inoculate online music piracy, the emerging digital markets …

The Google Book Search Settlement: Ends, Means, And The Future Of Books, James Grimmelmann

James Grimmelmann

For the past four years, Google has been systematically making digital copies of books in the collections of many major university libraries. It made the digital copies searchable through its web site--you couldn't read the books, but you could at least find out where the phrase you're looking for appears within them. This outraged copyright owners, who filed a class action lawsuit to make Google stop. Then, last fall, the parties to this large class action announced an even larger settlement: one that would give Google a license not only to scan books, but also to sell them.

The settlement …

Copyright And Cultural Heritage - Transcripts From Bileta Conference 30 March 2009, Estelle Derclaye

Estelle Derclaye

This file comprises the comments made by the panelists at the conference I organised on 30 March 2009 on copyright and cultural heritage. They can be read together and are referred to in E. Derclaye (ed), Copyright and Cultural Heritage: Preservation and Access to Works in a Digital World, E. Elgar Publishing, Cheltemham/Northampton, 2010.

Copyright Harm And The First Amendment, Christina Bohannan

Christina Bohannan

Abstract Copyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is …

Hoisting Originality: A Response, Roberta R. Kwall

Roberta R Kwall

Inspiration Or Imitation: Copyright Protection For Stage Directions, Margit Livingston

Margit Livingston

Does The Song Remain The Same? An Empirical Study Of Bestselling Muiscal Compositions (1913-32) And Their Use In Cinema (1968-2008), Paul J. Heald

Paul J. Heald

In regularly extending the copyright term of existing works, Congress has relied upon predictions by economists that bad things happen to works that fall into the public domain. Economists claim that as the copyright in some valuable works expires, they will be underexploited and their value dissipated. Other works, it is argued, will be overused or debased by inappropriate uses. This study of the most valuable musical compositions from 1913-32 demonstrates that neither hypothesis is true applied to the exploitation of musical composition in movies from 1968-2007. Combined with an earlier study on books from the same era, grave doubt …

To © Or Not To ©? Copyright And Innovation In The Digital Typeface Industry, Jacqueline D. Lipton

Jacqueline D Lipton

Intellectual property rights are often justified by utilitarian theory. However, recent scholarship suggests that creativity thrives in some industries in the absence of intellectual property protection. These industries might be called IP’s negative spaces. One such industry that has received little scholarly attention is the typeface industry. This industry has recently digitized. Its adoption of digital processes has altered its market structure in ways that necessitate reconsideration of its IP negative status, with particular emphasis on copyright. This article considers the historical denial of copyright protection for typefaces in the United States, and examines arguments both for and against extending …

Looking For Fair Use In The Dmca's Safety Dance, Ira Nathenson

Ira Steven Nathenson

Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ("DMCA") provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the "third wheel," the users of internet services. Even Senator John McCain - who in 1998 voted for the DMCA - wrote in exasperation to YouTube after some of his presidential campaign videos were removed due to take-downs. McCain …

Theft, Transformation, And The Need Of The Immaterial: A Proposal For A Fair Use Digital Sampling Regime, Reuven Ashtar

Reuven Ashtar

Theft, Transformation, and the Need of the Immaterial:

A Proposal for a Fair Use Digital Sampling Regime

ABSTRACT

At its inception, American copyright law had a clear purpose: to incentivize creativity. To this end, the Framers reluctantly granted monopolies to authors. This paper examines the extent to which their original intention has been forgotten, and their granting of monopolies abused, in contemporary practice. It does so through the examination of a specific case: that of sampling—the process of manipulating pre-existing sound recordings and incorporating them in one’s music. While licensing is an expensive and demanding process, imaginative unlicensed borrowing is …