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Copyright

2011

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Full-Text Articles in Law

A State Law Approach To Preserving Fair Use In Academic Libraries, David R. Hansen Nov 2011

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

David R Hansen

Every year academic libraries spend millions of dollars to provide their users access to copyrighted works. Much of that money goes not toward purchasing physical copies of books or journals, but toward licensing electronic content from publishers. In those electronic license agreements, the default rules for how users interact with copyrighted content is often altered, and academic library users are deprived of basic rights — especially rights such as fair use — which are granted under federal copyright law. The literature is flush with discussion of the misuse of private contracts to alter the rights granted by Congress in copyright’s statutory ...


The Evolution Of The Us Drm Debate, 1987-2006, Bill D. Herman Nov 2011

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 ...


Why Full Open Access Matters, Michael W. Carroll Nov 2011

Why Full Open Access Matters, Michael W. Carroll

PIJIP Research Paper Series

This Perspective argues that when authors or funders pay the full cost of publishing a scientific or scholarly journal article in an open access journal, the terms of reuse should require only attribution to some combination of the author(s), the original publisher, and the funder. Publications that charge authors and their financial backers the full cost of publication and then add other reuse restrictions are not fully open access publications.


Why Full Open Access Matters, Michael Carroll Nov 2011

Why Full Open Access Matters, Michael Carroll

Articles in Law Reviews & Other Academic Journals

This Perspective argues that when authors or funders pay the full cost of publishing a scientific or scholarly journal article in an open access journal, the terms of reuse should require only attribution to some combination of the author(s), the original publisher, and the funder. Publications that charge authors and their financial backers the full cost of publication and then add other reuse restrictions are not fully open access publications.


Why Full Open Access Matters, Michael W. Carroll Nov 2011

Why Full Open Access Matters, Michael W. Carroll

Michael W. Carroll

This Perspective argues that when authors or funders pay the full cost of publishing a scientific or scholarly journal article in an open access journal, the terms of reuse should require only attribution to some combination of the author(s), the original publisher, and the funder. Publications that charge authors and their financial backers the full cost of publication and then add other reuse restrictions are not fully open access publications.


What Can I Do With This?: Deciphering Copyright And License Notices, Benjamin J. Keele, Fred Dingledy Oct 2011

What Can I Do With This?: Deciphering Copyright And License Notices, Benjamin J. Keele, Fred Dingledy

Library Staff Publications

No abstract provided.


First Amendment Based Copyright Misuse, David S. Olson Oct 2011

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 ...


Cablevision's Remote Dv-R System And A Solution For The Digital-Recording Age, Justin M. Jacobson Oct 2011

Cablevision's Remote Dv-R System And A Solution For The Digital-Recording Age, Justin M. Jacobson

Touro Law Review

No abstract provided.


Copyright Basics, B. Douglas Robbins Oct 2011

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 Oct 2011

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 Power Of Music: Applying First Amendment Scrutiny To Copyright Regulation Of Internet Radio, Amanda Reid Sep 2011

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

Amanda Reid

The growing body of literature documenting the power of music, from promoting the well-being of individuals to fostering reconciliation of cross-cultural disputes underscores that the value of music extends beyond the private interests of the copyright holders. The current dialogue about the First Amendment interests affected by modern copyright law has not fully acknowledged the research that supports the unique communicative potential of music. First Amendment protections for music encompass a listener’s right to hear it, as well as a speaker’s interest in playing it. The ever-expanding copyright regulations of online music have been used by incumbents to ...


The Sine Qua Non Of Copyright Is Uniqueness, Not Originality, Samson Vermont Sep 2011

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) + (creativity) + (limiting ...


Results-Oriented Jurisprudence: A Second Circuit Panel Meets J. D. Salinger Coming Through The Rye, Kathleen (Kate) M. O'Neill Sep 2011

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 ...


Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright And The Birth Of Shakespeare Scholarship, Jeffrey M. Gaba Sep 2011

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 ...


The Content Of Their Characters - J.D. Salinger, Holden Caulfield And Fredrik Colting, Kathleen (Kate) M. O'Neill Sep 2011

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 ...


Bugs For Sale: Legal And Ethical Proprieties Of The Market In Software Vulnerabilities, Taiwo Oriola Aug 2011

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 Aug 2011

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 Aug 2011

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 Aug 2011

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 ...


Librarians Can Improve Law Journal Publishing, Benjamin J. Keele, Michelle Pearse Jul 2011

Librarians Can Improve Law Journal Publishing, Benjamin J. Keele, Michelle Pearse

Library Staff Publications

No abstract provided.


Sampling, Looping, And Mashing . . . Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans Jul 2011

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

Fordham Intellectual Property, Media and Entertainment Law Journal

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 ...


Sampling, Looping, And Mashing … Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans Jul 2011

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. Jun 2011

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 Jun 2011

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 Jun 2011

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 ...


Protection Of Traditional Knowledge: Trade Barriers And The Public Domain, David R. Hansen May 2011

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

David R Hansen

In recent years, developing nations have pushed for international copyright and other intellectual property regimes to expand protection over the cultural heritage and collective knowledge of particular indigenous groups. These “traditional knowledge” protections have been justified by factors like economic protection, equity in intellectual property ownership, cultural protection, and economic development. These motivating factors are a far cry from the underpinnings of traditional Western intellectual property law - and in particular, U.S. copyright law - which focuses on incentivizing the creation of new content for the promotion of “the Progress of Science and useful Arts.” Because of these differing justifications, traditional ...


El "Product Placement" En El Cine, Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq. Apr 2011

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 Apr 2011

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 Apr 2011

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 Apr 2011

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

Cheng L Saw

No abstract provided.