Jurisprudence Commons^™

The Supreme Court’S Chief Justice Of Intellectual Property Law, Bob Gomulkiewicz

Articles

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions that call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as the most prolific author of patent law opinions in the history of the Supreme …

A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye

Law Faculty Scholarly Articles

For numberless generations, jurisprudes waged total war in the

conflict among textualism, intentionalism, and purposivism.

Textualists insisted that courts must interpret statutes based on the

meaning of their text, intentionalists insisted on the intention of the

legislature, and purposivists insisted on the purpose of the statute.

Eventually, textualism prevailed. Courts universally recognize

that they are obligated to interpret statutes in light of their text, or

at least pretend that the text of the statute determined their

interpretation. And the few remaining heretics are swiftly identified

and corrected by their superiors. As Justice Kagan famously

observed, “We’re all textualists now.” Whether …

Visual Appropriation Art, Transformativeness, And Fungibility, Jasmine C. Abdel-Khalik

Faculty Works

As an intentionally flexible doctrine, fair use in copyright has a long history of ambiguity and criticism. While courts have developed various standards and considerations to give fair use some shape, key decisions have generally done so in the context of textual material. Likewise, the examples in Judge Leval’s seminal work on fair use involve textual material. His argument to assess the first fair use factor based on transformativeness has won the day. But in contrast to the textual examples, interpreting the meaning and transformation of visual works is rife with danger.

Recent appropriation art cases exemplify this danger and …

Copyright As Legal Process: The Transformation Of American Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law – focusing on horizontal rights, privileges and private liability – copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and law-making that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. …

Privative Copyright, Shyamkrishna Balganesh

All Faculty Scholarship

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims …

Mashups And Fair Use: The Bold Misadventures Of The Seussian Starship Enterprise, Peter Menell, Shyamkrishna Balganesh, David Nimmer

All Faculty Scholarship

This amicus brief filed in the Ninth Circuit appeal of Dr. Seuss Enterprises v. ComicMix seeks to rectify and restore the balances underlying the Copyright Act of 1976 — particularly the interplay of the Section 106(2) right to prepare derivative works and the fair use doctrine. The District Court granted the defendants’ motion for summary judgment on the ground that OH THE PLACES YOU’LL BOLDLY GO! — the defendants’ illustrated book combining Dr. Seuss’s OH THE PLACES YOU’LL GO! and other Dr. Seuss books with Star Trek characters and themes — made fair use of the Dr. Seuss works.

Based …

Copyright As Market Prospect, Shyamkrishna Balganesh

All Faculty Scholarship

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 benefit that was likely …

Causing Copyright, Shyamkrishna Balganesh

All Faculty Scholarship

Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet, modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation in altogether extraneous considerations. This Article argues that copyright law embodies an unstated, yet distinct theory of authorial causation, which connects the element of human agency to a work …

The Dual-Grant Theory Of Fair Use, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Fair use is one of modern law's most fascinating and troubling doctrines. It is amorphous and vague, and notoriously difficult to apply. It is, at the same time, vitally important in copyright and perhaps the most frequently raised and litigated issue in the law of intellectual property.

This article offers a novel theory of fair use that provides both a better understanding of the underlying principles and better tools for applying the doctrine.

In contrast with the dominant understanding of fair use in the literature — that fair use addresses market failure — the article proposes viewing fair use as …

Copyright Trust, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Collaborative production of expressive content accounts for an ever growing number of copyrighted works. Indeed, in the age of content sharing and peer production, collaborative efforts may have become the paradigmatic form of authorship. Surprisingly, though, copyright law continues to view the single author model as the dominant model of peer production. Copyright law’s approach to authorship is currently based on a hodgepodge of rigid doctrines that conflate ownership and control. The result is a binary system under which a contributor to a collaborative work is either recognized as an author with a full control and management rights or a …

Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey

Faculty Scholarship

This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent …

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

All Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …

Structural Rights In Privacy, Harry Surden

Publications

This Essay challenges the view that privacy interests are protected primarily by law. Based upon the understanding that society relies upon nonlegal devices such as markets, norms, and structure to regulate human behavior, this Essay calls attention to a class of regulatory devices known as latent structural constraints and provides a positive account of their role in regulating privacy. Structural constraints are physical or technological barriers which regulate conduct; they can be either explicit or latent. An example of an explicit structural constraint is a fence which is designed to prevent entry onto real property, thereby effectively enforcing property rights. …

Fair Use And The Fairer Sex: Gender, Feminism, And Copyright Law, Ann Bartow

Law Faculty Scholarship

Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when …

Solving The Digital Piracy Puzzle: Disaggregating Fair Use From The Dmca's Anti-Device Provisions, Jacqueline D. Lipton

Articles

Copyright law has always involved balancing creative pursuits against innovations in copying, distribution and, more recently, encryption technologies. A significant problem for copyright law is that many such technologies can be utilized for both socially useful and socially harmful purposes. It is difficult to regulate such technologies in a way that prevents social harms while at the same time facilitating social benefits. The most recent example of this dynamic is evident in the 2005 United States Supreme Court decision in MGM v Grokster - dealing with digital file-sharing technologies. This article draws from the file sharing debate in considering another …

The Hegemony Of The Copyright Treatise, Ann Bartow

Law Faculty Scholarship

This Article asserts that major conceptions about the appropriate structure, texture, and span of copyright protections and privileges have been fashioned by copyright treatises, particularly the various editions of Nimmer on Copyright. Copyright treatises function in concert with the machinations of Congress, the courts, and custom, but their role is not often scrutinized.

Because copyright treatises typically do a far better job than Congress or the courts of explicating copyright law in straightforward and accessible language, such treatises can not only communicate the copyright law, but also influence its development and direction. Policy makers no doubt understand that content owners …

Resolving Tensions Between Copyright And The Internet, Walter Effross

Articles in Law Reviews & Other Academic Journals

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