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Full-Text Articles in Intellectual Property Law
Commercial Speech, Commercial Use, And The Intellectual Property Quagmire, Jennifer E. Rothman
Commercial Speech, Commercial Use, And The Intellectual Property Quagmire, Jennifer E. Rothman
All Faculty Scholarship
The commercial speech doctrine in First Amendment jurisprudence has frequently been criticized and is recognized as a highly contested, problematic and shifting landscape. Despite the compelling critique within constitutional law scholarship more broadly, Intellectual Property (“IP”) law has not only embraced the differential treatment of commercial speech, but has done so in ways that disfavor a much broader swath of speech than traditional commercial speech doctrine allows. One of the challenges for courts, litigants, and scholars alike is that the term “commercial” is used to mean multiple things, even within the same body of IP law. In this Article, I …
Liberating Copyright: Thinking Beyond Free Speech, Jennifer E. Rothman
Liberating Copyright: Thinking Beyond Free Speech, Jennifer E. Rothman
All Faculty Scholarship
Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious …