Law Commons^™

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

The Institutional Progress Clause, Jake Linford

Vanderbilt Journal of Entertainment & Technology Law

There is a curious anomaly at the intersection of copyright and free speech. In cases like Citizens United v. Federal Election Commission, the United States Supreme Court has exhibited a profound distaste for tailoring free speech rights and restrictions based on the identity of the speaker. The Copyright Act, however, is full of such tailoring, extending special rights to some classes of copyright owners and special defenses to some classes of users. A Supreme Court serious about maintaining speaker neutrality would be appalled.

A set of compromises at the heart of the Copyright Act reflects interest-group lobbying rather than a …

How Many Wrongs Make A Copyright?, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Derek Bambauer’s provocative paper argues that, because the remedies available to people who suffer unconsented distribution of intimate images of themselves are insufficient, we should amend copyright law to fill the gap. Bambauer’s proposal requires significant changes to every part of copyright—what copyright seeks to encourage, who counts as an author/owner, what counts as an exclusive right, what qualifies as infringement, what suffices as a defense, and what remedies are available. These differences are not mere details. Among other things, incentivizing intimacy is not the same thing as incentivizing creativity. Bambauer’s argument that copyright is normatively empty and already full …

All Of This Has Happened Before And All Of This Will Happen Again: Innovation In Copyright Licensing, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Claims that copyright licensing can substitute for fair use have a long history. This article focuses on a new cycle of the copyright licensing debate, which has brought revised arguments in favor of universal copyright licensing. First, the new arrangements offered by large copyright owners often purport to sanction the large-scale creation of derivative works, rather than mere reproductions, which were the focus of earlier blanket licensing efforts. Second, the new licenses are often free. Rather than demanding royalties as in the past, copyright owners just want a piece of the action—along with the right to claim that unlicensed uses …

Copyright Crime And Punishment: The First Amendment's Proportionality Puzzle, Margot Kaminski

Publications

The United States is often considered to be the most speech-protective country in the world. Paradoxically, the features that have led to this reputation have created areas in which the United States is in fact less speech protective than other countries. The Supreme Court's increasing use of a categorical approach to the First Amendment has created a growing divide between the US. approach to reconciling copyright and free expression and the proportionality analysis adopted by most of the rest of the world.

In practice, the U.S. categorical approach to the First Amendment minimizes opportunities for judicial oversight of copyright. Consequently, …

“What He Said.” The Transformative Potential Of The Use Of Copyrighted Content In Political Campaigns —Or— How A Win For Mitt Romney Might Have Been A Victory For Free Speech, Deidre Keller

Journal Publications

In January 2012 Mitt Romney’s campaign received a cease-and-desist letter charging, among other things, that its use of news footage concerning Newt Gingrich’s ethics problems in the House of Representatives constituted a violation of NBC’s copyright. This is just the latest such charge and came amidst similar allegations against the Gingrich and Bachmann campaigns and in the wake of similar allegations against both the McCain and Obama campaigns in 2008. Such allegations have plagued political campaigns as far back as Reagan’s in 1984. The existing literature is nearly devoid of a consideration of such uses as political speech protected by …

“I’M A Lawyer, Not An Ethnographer, Jim”: Textual Poachers And Fair Use, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This short article, written for a festschrift for Henry Jenkins, discusses the influence of his work on media fandom in legal scholarship and advocacy around fair use.

The Semiotics Of Film In Us Supreme Court Cases, Jessica Silbey, Meghan Hayes Slack

Faculty Scholarship

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations …

Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer

Joseph P. Bauer

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no law...abridging the freedom of speech or of the press," thus at least nominally indicating that limitations on the reproduction …

Rankings, Reductionism, And Responsibility, Frank Pasquale

Frank A. Pasquale

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …

Deconstructing And Reconstructing Hot News: Toward A Functional Approach, Jeffrey L. Harrison, Robyn Shelton

UF Law Faculty Publications

Hot news is factual, time-sensitive information ranging from baseball scores to the outbreak of war. In recent years, hot news has found its own niche among legal scholars and courts. When deconstructed, though, hot news is simply information and, like most information, it has a public good character. The problem ultimately is that news is non-excludable and non-rivalrous – discoverers or creators of hot news cannot exclude others from using the news and hot news is not destroyed when used. This means it may be produced at levels that are less than optimal.

The critical element in hot news is …

Rediscovering Cumulative Creativity From The Oral Formulaic Tradition To Digital Remix: Can I Get A Witness?, Giancarlo Francesco Frosio

Giancarlo Francesco Frosio

For most of human history the essential nature of creativity was understood to be cumulative and collective. This notion has been largely forgotten by modern policies regulating creativity and speech. As hard as it may be to believe, the most valuable components of our immortal culture were created under a fully open regime with regard to access to pre-existing expressions and reuse. From the Platonic mimēsis to the Roman imitatio, from Macrobius’ Saturnalia to the imitatio Vergili, from medieval auctoritas and Chaucer the compilator to Anon the singer and social textuality, from Chrétien’s art of rewriting to Shakespeare’s “borrowed feathers,” …

Copyright And The First Amendment: Freedom Or Monopoly Of Expression?, Henry S. Hoberman

Pepperdine Law Review

No abstract provided.

The New American Privacy, Richard J. Peltz-Steele

Faculty Publications

Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 …

Tattoos & Ip Norms, Aaron K. Perzanowski

Aaron K. Perzanowski

The U.S. tattoo industry generates billions of dollars in annual revenue. Like the music, film, and publishing industries, it derives value from the creation of new, original works of authorship. But unlike rights holders in those more traditional creative industries, tattoo artists rarely assert formal legal rights in disputes over copying or ownership of the works they create. Instead, tattooing is governed by a set of nuanced, overlapping, and occasionally contradictory social norms enforced through informal sanctions. And in contrast to other creative communities that rely on social norms because of the unavailability of formal intellectual property protection, the tattoo …

An Intersystemic View Of Intellectual Property And Free Speech, Mark Bartholomew, John Tehranian

Journal Articles

Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Interestingly, each intellectual property regime strikes the balance between ownership rights and free speech in a dramatically different way. Despite a large volume of scholarship on intellectual property rights and free speech considerations, this Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, …

Performance Anxiety: Copyright Embodied And Disembodied, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance—both as protected work and as right—is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

One key problem of performance from copyright’s perspective …

From Berne To Beijing: A Critical Perspective, David L. Lange

Faculty Scholarship

Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law’s Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange’s preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated …

Why Copyright Law Lacks Taste And Scents, Leon R. Calleja

Leon R Calleja

This paper explores the resistance in U.S. copyright law to extend copyright protection to scents and tastes, and advances the position that copyright law’s originality and expression requirements limit copyrightable subject matter to expressions that engage both author and audience in a way that requires reflection upon the work—or at least, the capacity for reflection—in a necessarily intersubjective and communicative fashion, what I call a “public dimension.” That the sensations of taste and smell are inescapably immediate and private suggest that they lack the kind of public dimension that visual and audio works exhibit. Indeed, this creates an ineffability characterized …

As Unoriginal As They Wanna Be: Upholding Musical Parody In Campell V. Acuff-Rose Music, Inc., Gregory D. Deutsch

Pepperdine Law Review

No abstract provided.

Building Universal Digital Libraries: An Agenda For Copyright Reform, Hannibal Travis

Pepperdine Law Review

This article proposes a series of copyright reforms to pave the way for digital library projects like Project Gutenberg, the Internet Archive, and Google Print, which promise to make much of the world's knowledge easily searchable and accessible from anywhere. Existing law frustrates digital library growth and development by granting overlapping, overbroad, and near-perpetual copyrights in books, art, audiovisual works, and digital content. Digital libraries would benefit from an expanded public domain, revitalized fair use doctrine and originality requirement, rationalized systems for copyright registration and transfer, and a new framework for compensating copyright owners for online infringement without imposing derivative …

Copyright Law And Pornography, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

Sex-for-hire is usually illegal, unless it is being filmed. Debates about pornography tread uneasily into legal terrain that implicates freedom of expression under the First Amendment, the specter of censorship, and genuine concerns about the function and role of pornography in persistent gender inequality. It is less common for conversations about pornography to include a discussion of copyright law. Yet copyright law is a powerful tool that operates to protect the financial interests of pornographers. Owners of copyrighted pornography frequently threaten public exposure of an alleged infringer’s consumption habits in order to force a financial settlement. Thus copyright law operates …

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 of new …

The Anti-Bootlegging Provisions: Congressional Power And Constitutional Limitations, Craig W. Dallon

Vanderbilt Journal of Entertainment & Technology Law

Courts and scholars have considered the constitutional validity of 17 U.S.C. § 1101 (civil), and 18 U.S.C. § 2319A (criminal), known together as "the anti-bootlegging provisions." These provisions prohibit unauthorized recording, copying, and distribution of live musical performances. The provisions have been challenged in three cases, resulting in five published opinions. Two district court opinions held the provisions unconstitutional, but subsequent opinions vacated those decisions. Notwithstanding a sharp division among copyright scholars, the courts have upheld these provisions. The discussion surrounding them is part of a continuing struggle to ascertain limits on congressional power to regulate copying and distribution of …

Twittering Away The Right Of Publicity: Personality Rights And Celebrity Impersonation On Social Networking Websites, Andrew M. Jung

Chicago-Kent Law Review

Within the past couple of years, social networking websites have become an immensely popular destination for people from all walks of life. Websites like Facebook and Twitter now count tens of millions of worldwide users, including world leaders and a number of celebrities. Eventually, users realized that social networking websites lent themselves to the quick and easy impersonation of celebrities through the creation of fake social networking accounts, often as a form of parody. One subject of such impersonation was professional baseball manager Tony La Russa, who took the then-unprecedented step of suing his impersonators and Twitter over the incident. …

First Amendment Based Copyright Misuse, David S. Olson

William & Mary Law Review

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 of new …

Draft Of Beck Lecture - 2010, Wendy J. Gordon

Scholarship Chronologically

I am grateful to the wonderful BU community that has taught me so much, and to those who made this event possible. I thank Dean O'Rourke for hosting this wonderful event, Mary Gallagher, Cornell Stinson and Erin Elwood for organizing it, and I thank you all for coming. I am honored to follow Bill Ryckman in the Chair, a man I admire. Most especially I thank Phil Beck for his generosity to the Boston University School of Law in funding this Chair. It's flattering to me having been chosen its recipient, and flattering to the school that Phil chose us …

Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow

Faculty Publications

Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair-use burden of proof is repugnant to the fair use purpose. Today, copyright holders are exploiting the burden …

Best Intentions: Reconsidering Best Practices Statements In The Context Of Fair Use And Copyright Law, Jennifer E. Rothman

All Faculty Scholarship

Private ordering is increasingly playing a role in determining the scope of intellectual property rights both as a de facto and a de jure matter. In this essay, I consider the best practices movement and its efforts to use private ordering to limit the scope and enforcement of copyright law. Best practices statements in the copyright context establish voluntary guidelines for what should be deemed fair uses of others’ copyrighted works. I identify some of the de facto successes of the best practices movement, but also raise a number of concerns about the project. As I have discussed elsewhere, the …

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 …