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Full-Text Articles in Law

A Transformative Use Taxonomy: Making Sense Of The Transformative Use Standard, David E. Shipley Jan 2018

A Transformative Use Taxonomy: Making Sense Of The Transformative Use Standard, David E. Shipley

Scholarly Works

The transformative use standard, which is an important aspect of copyright law’s fair use doctrine, has been confusing and uncertain since 1994 when it was first introduced by the United States Supreme Court in Campbell v. Acuff-Rose Music. To try to make some sense of this standard, this article extends the work of several scholars who have argued that the massive amount of fair use case law generally divides itself into categories, patterns or policy clusters which have their own internal coherence. This article contends that these observations apply as well to transformative use decisions more particularly, which similarly ...


Copyright As Market Prospect, Shyamkrishna Balganesh Jan 2018

Copyright As Market Prospect, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts—principally trespass and negligence—in order to understand copyright’s structure of entitlement and liability. This focus on property- and harm-based torts has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant's volitional actions interfere with a potential economic ...


Online Piracy Of Live Sports Telecasts In India, Seemantani Sharma Jan 2018

Online Piracy Of Live Sports Telecasts In India, Seemantani Sharma

Marquette Sports Law Review

None


All For Copyright Stand Up And Holler! Three Cheers For Star Athletica And The U.S. Supreme Court’S Perceived And Imagined Separately Test, David E. Shipley Jan 2018

All For Copyright Stand Up And Holler! Three Cheers For Star Athletica And The U.S. Supreme Court’S Perceived And Imagined Separately Test, David E. Shipley

Scholarly Works

In March 2017 the United States Supreme Court held in Star Athletica L.L.C. v. Varsity Brands Inc. that an artistic feature incorporated into the design of a useful article could be protected by copyright when that feature could be perceived as a two- or three-dimensional work of art separate from the useful article, and imagined separately as a protectable pictorial, graphic, or sculptural work. This two-part test replaces a variety of tests which courts and commentators proposed and applied during the last 40 years. The Star Athletica decision is predicted to be a boon to the fashion and ...


So Happy Together: Should The California Decision Be A Basis To Recognize A Right Of Public Performance In Pre-1972 Sound Recordings?, Vicenç Feliú Dec 2017

So Happy Together: Should The California Decision Be A Basis To Recognize A Right Of Public Performance In Pre-1972 Sound Recordings?, Vicenç Feliú

Vicenç Feliú

One of the peculiarities of American copyright law is the way it deals with sound recordings.  The federal copyright regime treated sound recordings as different from the protection awarded other copies and, consequently, there are some gaps in protection coverage.  Because of how federal protection developed, pre-1972 sound recordings are not protected by federal law and have only the patchwork protection afforded under state laws.
In August of 2013, Mark Volman and Howard Kaylan, the founding members of the 1960s rock group The Turtles, filed a $100 million class action suit in California, under the incorporated name Flo & Eddie, Inc ...


Copyright And Distributive Justice, Justin Hughes, Robert P. Merges Dec 2017

Copyright And Distributive Justice, Justin Hughes, Robert P. Merges

Robert P Merges

Is our copyright system basically fair? Does it exacerbate or ameliorate the skewed distribution of wealth in our society? Does it do anything at all for disempowered people, people at the bottom of the socio-economic hierarchy? In this Article we engage these questions. Our goal is to begin a more comprehensive discussion of the effect the copyright system has on the allocation of wealth in our society.


Piracy, Policy, And Pandora: Outdated Copyright In A Digital World, Stephanie Caress Dec 2017

Piracy, Policy, And Pandora: Outdated Copyright In A Digital World, Stephanie Caress

Student Research Day Abstracts and Posters

This project examines how current copyright laws and digital distribution practices in music can be improved for both the creator and the consumer. The laws that govern our digital atmosphere, and thus a large portion of music distribution, are outdated and cause a wide variety of problems for both artists and fans. To create a comprehensive picture and establish the scope of this problem, I start by outlining the process a song goes through from when it is written to when it is in the hands, or rather ears, of listeners. From there, copyright laws are entwined with this process ...


Unwinding Sony, Peter S. Menell, David Nimmer Dec 2017

Unwinding Sony, Peter S. Menell, David Nimmer

Peter Menell

No abstract provided.


"The Exclusive Right To Their Writings": Copyright And Control In The Digital Age, Jane C. Ginsburg Dec 2017

"The Exclusive Right To Their Writings": Copyright And Control In The Digital Age, Jane C. Ginsburg

Maine Law Review

The recent coincidence of new technology and new legislation in the United States may have enhanced the ability of U.S. copyright owners to wield electronic protective measures to control the exploitation of their works. The legislation, which reinforces the technology, has led many to perceive and to deplore a resulting imbalance between copyright owners and the copyright-using public. Critics assert that the goals of copyright law have never been, and should not now become, to grant “control” over works of authorship. Instead, copyright should accord certain limited rights over some kinds of exploitations. Economic incentives to create may be ...


The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre K. Mulligan, Aaron K. Perzanowski Nov 2017

The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre K. Mulligan, Aaron K. Perzanowski

Deirdre Mulligan

No abstract provided.


The Law And Economics Of Databases: A Balancing Act, Ya Shon Huang Nov 2017

The Law And Economics Of Databases: A Balancing Act, Ya Shon Huang

SPICE: Student Perspectives on Institutions, Choices and Ethics

In this paper, I demonstrate that the existing legal frameworks for database protection are inadequate – the American framework under-protects databases, while the European framework over-protects. This paper presents an economic analysis of the current scope of legal protections for databases versus the ideal, with an especial emphasis on the role of intellectual property rights in providing these protections, and concludes with proposals for an ideal system. After an overview of the current systems of legal protections for databases in the United States (US) and the European Union (EU), there will be an explanation of how different types of laws (competition ...


Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn Nov 2017

Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn

Maine Law Review

The Copyright Act establishes protection for original, creative works of authorship as a means of providing ex ante incentives for creativity. But how real is that protection? Imagine that you have written a script and managed to have your play produced in a local community theater. A few years later, you find that a major Hollywood studio has taken your script, adapted it slightly, and made it into the next summer blockbuster, raking in millions without ever obtaining a license from you. Of course, you can sue them for infringement. But how much will that litigation cost and what are ...


Book Review: Choreographing Copyright: Race, Gender, And Intellectual Property Rights In American Dance By Anthea Kraut, Carys Craig Nov 2017

Book Review: Choreographing Copyright: Race, Gender, And Intellectual Property Rights In American Dance By Anthea Kraut, Carys Craig

Articles & Book Chapters

Dance may be one of the world’s oldest art forms, but it is a relatively recent entrant into the sphere of copyright law—and remains something of an afterthought amongst copyright lawyers and scholars alike. For copyright scholars, at least, that should change with the publication of Anthea Kraut’s CHOREOGRAPHING COPYRIGHT: RACE, GENDER, AND INTELLECTUAL PROPERTY RIGHTS IN AMERICAN DANCE. Kraut performs a fascinating exploration of the evolution of choreographic copyright—sweeping, political, polemical—that should leave no one in doubt as to the normative significance of choreography as a subject matter of copyright law and policy. Nor ...


Digital Locks, Physical Objects And Immaterial Works, Pascale Chapdelaine Nov 2017

Digital Locks, Physical Objects And Immaterial Works, Pascale Chapdelaine

Law Publications

One of the greatest controversies in contemporary copyright law is the introduction of technological protection measures (TPMs) at the international and national level. By creating a separate parallel regime for digital copyright works, TPMs shifted the paradigm by redefining the rules of engagement of how users would increasingly access and experience digital copyright works.

In this chapter of my book Copyright User Rights, Contracts, and the Erosion of Property (Oxford University Press, 2017) I look at the implementation of TPMs as a regulatory tool from a multi-jurisdictional perspective. Initially mainly intended to protect copyright holders’ works made accessible online or ...


The Struggle Over Webcasting--Where Is The Stream Carrying Us?, Susan A. Russell Sep 2017

The Struggle Over Webcasting--Where Is The Stream Carrying Us?, Susan A. Russell

Oklahoma Journal of Law and Technology

No abstract provided.


Dastar V. Twentieth Century Fox--One Can't Get Back By Trademark What One Gave Up Under Copyright, Sue Mota Sep 2017

Dastar V. Twentieth Century Fox--One Can't Get Back By Trademark What One Gave Up Under Copyright, Sue Mota

Oklahoma Journal of Law and Technology

No abstract provided.


Piracy On Peer-To-Peer File Sharing Networks: Why A Streamlined Online Dispute Resolution System Should Not Be Forgotten In The Shadow Of A Federal Small Claims Tribunal, Naomi Gemmell Sep 2017

Piracy On Peer-To-Peer File Sharing Networks: Why A Streamlined Online Dispute Resolution System Should Not Be Forgotten In The Shadow Of A Federal Small Claims Tribunal, Naomi Gemmell

Pepperdine Dispute Resolution Law Journal

This Article proposes application of an ADR system for resolving online copyright disputes related to P2P file sharing. Section II provides an overview of P2P file sharing networks and associated copyright infringement. Section III explores current approaches that fall short in resolving P2P copyright disputes, namely the Digital Millennium Copyright Act, litigation, and private agreements. Section IV examines the two primary proposed solutions to online copyright disputes: alternative dispute resolution and federal small claims. Section V recommends that a streamlined online dispute resolution system is necessary (even if a federal small claims tribunal is adopted), and concludes.


The Quandary Of Being Interactive: The Impact Of Arista Records V. Launch Media On The Viability Of Webcasting Services, Todd E. Saucedo Sep 2017

The Quandary Of Being Interactive: The Impact Of Arista Records V. Launch Media On The Viability Of Webcasting Services, Todd E. Saucedo

Oklahoma Journal of Law and Technology

No abstract provided.


Panel Ii: The Death Or Rebirth Of The Copyright?, Hugh C. Hansen, Diane Zimmerman, Robert Kasunic, Brett Frischmann Sep 2017

Panel Ii: The Death Or Rebirth Of The Copyright?, Hugh C. Hansen, Diane Zimmerman, Robert Kasunic, Brett Frischmann

Brett Frischmann

No abstract provided.


Intellectual Property And Competition, Herbert J. Hovenkamp Aug 2017

Intellectual Property And Competition, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

A legal system that relies on private property rights to promote economic development must consider that profits can come from two different sources. First, both competition under constant technology and innovation promote economic growth by granting many of the returns to the successful developer. Competition and innovation both increase output, whether measured by quantity or quality. Second, however, profits can come from practices that reduce output, in some cases by reducing quantity, or in others by reducing innovation.

IP rights and competition policy were traditionally regarded as in conflict. IP rights create monopoly, which was thought to be inimical to ...


Trademark Boundaries And 3d Printing, Lucas S. Osborn Aug 2017

Trademark Boundaries And 3d Printing, Lucas S. Osborn

Akron Law Review

3D printing technology promises to disrupt trademark law at the same time that trademark law and policy sustain repeated criticism. The controversial growth of trademark law over the last century has yielded amorphous sponsorship and affiliation confusion issues and empirically fragile post-sale and initial-interest confusion theories, among others. Into this melee marches 3D printing technology, which dissociates the process of design from that of manufacturing and democratizes manufacturing. Rather than being embodied only in physical objects, design is embodied in digital CAD files that users can post and sell on the internet. The digitization of physical objects raises fundamental questions ...


Redefining The Intended Copyright Infringer, Yvette Joy Liebesman Aug 2017

Redefining The Intended Copyright Infringer, Yvette Joy Liebesman

Akron Law Review

The contemporary copyright infringer is pretty much anyone who can get caught. Yet, who could be caught back when the Copyright Act of 1976 was enacted is just a subset of those who can be caught today—we had very different concepts about who was the intended target of an infringement action than who fits into that mold today. The advent and growth of cyberspace communication now makes it both easier to infringe and for IP owners, with very little effort, to capture infringers. The ability of individuals to both easily infringe and easily be found infringing has altered the ...


Copyright Easements, Jason Mazzone Aug 2017

Copyright Easements, Jason Mazzone

Akron Law Review

When authors assign the copyright in their work to publishers, some productive uses of the work are impeded. The author loses opportunities to use or to authorize others to use the work unless the publisher consents; the publisher does not permit all uses of the work that the author would like or that would benefit a consuming audience. Copyright easements can solve the problem. Under a system of copyright easements, an easement holder would have designated rights in a creative work that would permit uses of the work that would ordinarily require permission of the copyright owner. If the author ...


E-Sports: More Than Just A Fad, Michael Mctee Aug 2017

E-Sports: More Than Just A Fad, Michael Mctee

Oklahoma Journal of Law and Technology

No abstract provided.


Post-Myriad Genetics Copyright Of Synthetic Biology And Living Media, Michael D. Murray Aug 2017

Post-Myriad Genetics Copyright Of Synthetic Biology And Living Media, Michael D. Murray

Oklahoma Journal of Law and Technology

No abstract provided.


Bridgemen Art Library, Ltd. V. Corel Corporation Revisited: Authors Guild V. Hathitrust And The New Frontier Of Fair Use, Caitlin A. Buxton Aug 2017

Bridgemen Art Library, Ltd. V. Corel Corporation Revisited: Authors Guild V. Hathitrust And The New Frontier Of Fair Use, Caitlin A. Buxton

Oklahoma Journal of Law and Technology

No abstract provided.


Strategies For Teaching Copyright & Fair Use In Academic Libraries, Emily Jonhson Aug 2017

Strategies For Teaching Copyright & Fair Use In Academic Libraries, Emily Jonhson

Library Instruction

This document presents five strategies that librarians can use to teach copyright and fair use at an academic library. It is especially helpful for those with little or no experience in teaching these subjects.


A Picture's Worth: The Future Of Copyright Protection Of User-Generated Images On Social Media, Elizabeth Tao Aug 2017

A Picture's Worth: The Future Of Copyright Protection Of User-Generated Images On Social Media, Elizabeth Tao

Indiana Journal of Global Legal Studies

In the current digital age, the internet is teeming with personal websites and social media posts. As more people around the world are becoming and staying connected to the internet, more stories and photos are sharing over social networking sites each second. Social media presents a ubiquitous platform to share one's life with others, but this accessibility comes at a price. This Note examines the history and present state of copyright law, within the framework of photography, to highlight the gaps within these laws as applied to personal works of art, like personal photographs, posted to social media sites ...


The Right-Based View Of The Cathedral: Liability Rules And Corrective Justice, Omri Rachum-Twaig, Ohad Somech Jul 2017

The Right-Based View Of The Cathedral: Liability Rules And Corrective Justice, Omri Rachum-Twaig, Ohad Somech

Pepperdine Law Review

In their celebrated paper, Calabresi and Melamed offered a framework, often referred to as the ‘‘Cathedral’’ analysis, which explains when and why entitlements should be protected using two main sets of rules—property rules and liability rules. This framework is now widely used to explain some private law doctrines. However, cases that are easily explained as applications of liability rules are usually difficult to explain under the private law theory of correlative corrective justice. This is because the basic idea underlying corrective justice conflicts with the notion of rules that allow the nonconsensual property appropriation subject to compensation. In this ...


Consent Decrees In The Streaming Era: Digital Withdrawal, Fractional Licensing, And § 114(I), Steven J. Gagliano Jul 2017

Consent Decrees In The Streaming Era: Digital Withdrawal, Fractional Licensing, And § 114(I), Steven J. Gagliano

The Journal of Business, Entrepreneurship & the Law

Clear disagreement exists about how best to reconcile the copyright protections afforded to songwriters with the antitrust considerations protecting consumers. Songwriter public performance royalty collections account for over $2 billion in annual U.S. revenue, roughly 90% of which is collected by the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI). ASCAP and BMI are performance rights organizations (PROs) regulated by seventy-five-year-old consent decrees. After the Second Circuit determined that these consent decrees prohibit music publishers from selectively withdrawing their new media rights from ASCAP and BMI to directly negotiating with new media services, the ...