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Full-Text Articles in Law
Useful Articles In Copyright: Proposed Amendments To Section 101 And 114 - 2014, Wendy J. Gordon
Useful Articles In Copyright: Proposed Amendments To Section 101 And 114 - 2014, Wendy J. Gordon
Scholarship Chronologically
The origin of the definition probably lies with everyone's favorite protean decision, Baker v. Selden, 101 U.S. 99 (1879). For example, in 1924, the Second Circuit borrowed from Baker in upholding the copyright in 'Sparky,' a stuffed doll in the shape of a horse. The crucial distinction, which the court quoted from Baker, was the line between, on the one hand, "designs or pictorial illustrations addressed to the taste" whose "object [is] the production of pleasure in their contemplation," and, on the other hand, "methods of useful art [that] have their final end in application and use. "
Afterword: Conferring About The Conference, Jessica Silbey, Aaron Perzanowski, Marketa Trimble
Afterword: Conferring About The Conference, Jessica Silbey, Aaron Perzanowski, Marketa Trimble
Faculty Scholarship
We heard at the conference five rich papers, all addressing in one way or another the conference's theme: "ReCalibrating Copyright: Continuity, Contemporary Culture, and Change." Professor Craig Joyce, in his capacity as conference convener, asked us as Fellows, at the end of the day of presentations and discussions, how we thought the Presenters' papers spoke to each other and to the conference's focus.
The Fair Use Doctrine: Markets, Market Failure And Rights Of Use, Wendy J. Gordon
The Fair Use Doctrine: Markets, Market Failure And Rights Of Use, Wendy J. Gordon
Faculty Scholarship
Markets are most acceptable when they serve efficiency and other goals. It is only under transaction-costless conditions of perfect knowledge, flawless and cost-free enforcement, full monetization, and instantaneous ability to organize and negotiate, that markets are guaranteed to generate efficient outcomes. And even then, markets could fall short as social tools, because goals other than allocative efficiency may fail to be met.
Parody As Brand, Stacey Dogan, Mark Lemley
Parody As Brand, Stacey Dogan, Mark Lemley
Faculty Scholarship
Courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. The problem is particularly severe with respect to parodies that are used to brand products, a growing category. The doctrinal tools that generally protect expressive parodies often don't apply to brand parodies. Our goal in this paper is to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite courts’ increasing attention to speech interests in recent years, the law’s treatment of parody …
Dissemination Must Serve Authors: How The U.S. Supreme Court Erred, Wendy J. Gordon
Dissemination Must Serve Authors: How The U.S. Supreme Court Erred, Wendy J. Gordon
Faculty Scholarship
The US Congress has enacted expansions of copyright which arguably impose high social costs and generate little incentives for authorial creativity. When the two most expansive statutes were challenged as unconstitutional, the US Supreme Court rebuffed the challenges, partly on the supposed ground that copyright law could legitimately seek to promote nonauthorial interests; apparently, Congress could enact provisions aiming to support noncreative disseminative activities such as publishing, or restoring and distributing old film stock, even if authorial incentives were not served. Such an error might have arisen because of three phenomena (in economics, history, and law, respectively) that might easily …
Draft Of Product Design: The Misfit Of Intellectual Property Law - 2011, Wendy J. Gordon
Draft Of Product Design: The Misfit Of Intellectual Property Law - 2011, Wendy J. Gordon
Scholarship Chronologically
The collection of legal rights commonly labeled "intellectual property" does not reflect any comprehensive master plan. Indeed, the label itself does a disservice in suggesting a set of laws with some coherence, cohesion, or at least commonality. 1 In fact, the various laws governing so-called intellectual property have evolved to address disparate concerns, at different times, and through distinct legal tools. 2 As a result, the canvas of intellectual property laws looks more like a messy collage - with overlaps, unmarked or blank spaces, and jagged edges - than a neat landscape characterized by careful planning and harmony.
Fair Use Markets: On Weighing Potential License Fees, Wendy J. Gordon
Fair Use Markets: On Weighing Potential License Fees, Wendy J. Gordon
Faculty Scholarship
Justice Breyer began his classic article, The Uneasy Case for Copyright, with a line from Lord Macaulay, that copyright is "'a tax on readers for the purpose of giving a bounty to writers.'" Our society and its law values both writers and readers; the law cannot favor one side too much without losing some of the benefits the other side could have contributed. Make reading expensive and it will decrease, and readers might substitute less socially productive behaviors to take its place.
'We Know It When We See It': Intermediary Trademark Liability And The Internet, Stacey Dogan
'We Know It When We See It': Intermediary Trademark Liability And The Internet, Stacey Dogan
Faculty Scholarship
The recent history of intermediary liability decisions in copyright and trademark law reflects a notable resistance to rules that might constrain judicial discretion to ferret out bad guys. Indeed, a dichotomy appears to be emerging between two types of defendants: those who want infringement to happen and those who do not. In both copyright and trademark cases, courts are developing two distinct sets of rules to deal with two different classes of intermediaries. Good-faith intermediaries — those with a core business model unrelated to infringement — have an obligation to address infringement upon notice, but need not go out of …
Harvesting Intellectual Property: Inspired Beginnings And 'Work-Makes-Work,' Two Stages In The Creative Processes Of Artists And Innovators, Jessica Silbey
Harvesting Intellectual Property: Inspired Beginnings And 'Work-Makes-Work,' Two Stages In The Creative Processes Of Artists And Innovators, Jessica Silbey
Faculty Scholarship
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 …
Speech In The Role Of Fiduciary Law And Trust In The Twenty-First Century, Wendy J. Gordon
Speech In The Role Of Fiduciary Law And Trust In The Twenty-First Century, Wendy J. Gordon
Scholarship Chronologically
As someone who is not a specialist in the area, I am grateful to be included in today's conference. I wanted to be here to mark the admiration I have for Professor Frankel. Like Ken Simons, I have benefited from Tamar's knowledge base which is both deep and wide, her lively and inexhaustible curiosity, her imagination, and the immense intellectual stimulation she inevitably provides. Her new book under discussion today reveals some of her extraordinary powers, in its skillful use of materials from sources as diverse as Hammurabi and Grotius, from histories ancient and modem, traditions religious and secular, and …
Draft Of Beck Lecture - 2010, Wendy J. Gordon
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 …
Draft Of Beck Speech - 2010, Wendy J. Gordon
Draft Of Beck Speech - 2010, Wendy J. Gordon
Scholarship Chronologically
I come here with a sense of gratitude, to the intellectually stimulating BU community of students, staff and faculty, that has taught me so much, and grateful today especially to those who made this event possible. I would like to thank you all for coming, thank Dean O'Rourke for hosting this wonderful event, Mary Gallagher and Cornell Stinson for organizing it, and most especially I thank Phil Beck for his generosity to the Boston University School of Law in funding this Chair. It's immensely flattering to me having been chosen the initial recipient, and flattering to the school that Phil …
Discipline And Nourish: On Constructing Commons, Wendy J. Gordon
Discipline And Nourish: On Constructing Commons, Wendy J. Gordon
Faculty Scholarship
Scholarship has examined many possible ways to encourage the creation and dissemination of art, works of authorship, ideas, and inventions: rights of exclusion (copyrights and patents), prizes, governmental subsidies, private subsidies (including both foundations and patronage), reputation, and so forth. Legal scholars have long recognized that copyright and patent are not the only options. And while some legal academics have mentioned the possibility of groups of users and creators interacting on a voluntary but structured basis, legal scholars did not give much sustained attention to such possibilities until fairly recently.
Copyright's Derivative Works Doctrine And An Upside-Down Proviso, Wendy J. Gordon
Copyright's Derivative Works Doctrine And An Upside-Down Proviso, Wendy J. Gordon
Scholarship Chronologically
It is sometimes observed that questions of "justice in acquisition" do not much arise any more. However, judges face those questions on a daily basis in courtrooms adjudicating copyright and patent matters. In United States copyright law, for example, an intriguing dilemma regarding derivative works has developed that raises what appears to be a new issue regarding John Locke's sufficiency proviso.
Draft Of Copyright's Derivative Works Doctrine And An Upside-Down Proviso - 2010, Wendy J. Gordon
Draft Of Copyright's Derivative Works Doctrine And An Upside-Down Proviso - 2010, Wendy J. Gordon
Scholarship Chronologically
It is sometimes observed that questions of'justice in acquisition" do not much arise any more. However, judges face those questions on a daily basis in courtrooms adjudicating copyright and patent matters. In United States copyright law, for example, an intriguing dilemma regarding derivative works has developed that raises what appears to be a new issue regarding John Locke's sufficiency proviso.
The Rhetoric Of Intellectual Property: Copyright Law And The Regulation Of Digital Culture, By Jessica Reyman (Book Review), Jessica Silbey
The Rhetoric Of Intellectual Property: Copyright Law And The Regulation Of Digital Culture, By Jessica Reyman (Book Review), Jessica Silbey
Faculty Scholarship
A short book review of Jessica Reyman’s, The Rhetoric of Intellectual Property: Copyright Law and the Regulation of Digital Culture.
Current Patent Laws Cannot Claim The Backing Of Human Rights, Wendy J. Gordon
Current Patent Laws Cannot Claim The Backing Of Human Rights, Wendy J. Gordon
Faculty Scholarship
In the dispute over the enforcement of pharmaceutical patents, the International Covenant on Economic, Social and Cultural Rights is sometimes cited as giving patent protection the status of a 'human right'. It is true that the ICESCR provides for ‘the right of everyone’ ‘[t]o benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. But that does not mean that patent protection is a human right. Patent fails as a human right for many reasons, one of which is the lack of fit between current patent …
Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey
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 …
Harmless Use: Gleaning From Fields Of Copyrighted Works, Wendy J. Gordon
Harmless Use: Gleaning From Fields Of Copyrighted Works, Wendy J. Gordon
Faculty Scholarship
I will first provide a brief comment about what I think brings us all together. Second, I will talk about a particular project - something that has preoccupied me ever since I entered the field - namely, the distinction between what I will call, for sake of abbreviation, harmful use and harmless use.
Outline Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Outline Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Scholarship Chronologically
We want to believe we have intrinsic importance. We want to believe our loved ones do too. That's one of the things that makes age and death so scary: at some point no one will know that green dress was the one grandma wore to your parents' wedding, all that matters to you will no longer matter to anyone. But we want to feel that living DID matter.
Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Scholarship Chronologically
Recall Tina Turner's famous song, where the singer pounds the audience repeatedly with the insistent apparent question: "what's love got to do with it!?" We know she's not really asking, "What's love got to do with it"; she's making a statement. What she wants to do is deny love's force, and free herself from its disappointment. The singer's seeming repudiation of love is an attempted eradication of something that is definitely still part of her.
Handwritten Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Handwritten Notes On Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Scholarship Chronologically
At fifteen I found myself looking at a tree against the sky and being filled up with something bigger than I could contain. It was a sensation that demanded to be poured into something. The best label I could find for the emotion was "gratitude": Gratitude for the world I had not made, but had been given.
Lecture Draft Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Lecture Draft Of Art And The Intrinsic Worth Of A Human Life - 2009, Wendy J. Gordon
Scholarship Chronologically
I've taken advantage of Tom's invitation to write a paper on religion and copyright that was "informal in format, in keeping with the informal nature of this gathering". What I have had to say on the Jewish law of gleaning is already on record; 1 what you'll read here are more like meditations. Thinking about the connections between art, spirituality and law has touched some very personal issues for me. Further, I know that everything I have to say is partial. I hope what I am about to give you will nevertheless raise some questions of interest.
Trespass-Copyright Parallels And The Harm-Benefit Distinction, Wendy J. Gordon
Trespass-Copyright Parallels And The Harm-Benefit Distinction, Wendy J. Gordon
Faculty Scholarship
Currently, the elements of a plaintiff’s cause of action for copyright largely follow the tort of trespass to land in that volitional entry (for land) or volitional copying (for copyright) gives rise to liability regardless of proof of harm and without any need for the plaintiff to prove the defendant acted unreasonably. Many scholars have criticized copyright law for following the strict liability model of real property trespass, and have suggested alternatives that would more resemble conditional causes of action such as unfair competition, nuisance, or negligence. In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that copyright plaintiffs …
Draft For Harmless Use: Gleaning From Fields Of Copyrighted Works - 2008, Wendy J. Gordon
Draft For Harmless Use: Gleaning From Fields Of Copyrighted Works - 2008, Wendy J. Gordon
Scholarship Chronologically
My inquiry is into whether harmless uses of property should give the property owner a right to sue. Under current law, harmless trespasses to land and to copyrights and patents do indeed give rise to liability. Should they? Neither moral philosophy, political science nor economics deals well with the harmless free-rider. The possibility I'm exploring-- just exploring at this stage-- is the following: that where inexhaustible products like information become a primary source of value, our institutions might serve us better if instead of mandating payment for harmless use via legal compulsion, payment for harmless use be left to the …
Email To Bob Bone Re: Idea Expression Dichotomy, Wendy J. Gordon
Email To Bob Bone Re: Idea Expression Dichotomy, Wendy J. Gordon
Scholarship Chronologically
This is to recap our discussion, to make sure we're on the same page, and carry this a bit further. I'm very excited.
Moral Philosophy, Information Technology, And Copyright, Wendy J. Gordon
Moral Philosophy, Information Technology, And Copyright, Wendy J. Gordon
Faculty Scholarship
A plethora of philosophical issues arise where copyright and patent laws intersect with information technology. Given the necessary brevity of the chapter, my strategy will be to make general observations that can be applied to illuminate one particular issue. I have chosen the issue considered in MGM v. Grokster,2 a recent copyright case from the U.S. Supreme Court Grokster, Ltd., provided a decentralized peer-to-peer technology that many people, typically students, used to copy and distribute music in ways that violated copyright law. The Supreme Court addressed the extent to which Grokster and other technology providers should be held …
Fair Use, "Fared Use," And Public Rights: Amending Section 107 - Draft - 08-19-2007, Wendy J. Gordon
Fair Use, "Fared Use," And Public Rights: Amending Section 107 - Draft - 08-19-2007, Wendy J. Gordon
Scholarship Chronologically
Under provocative titles like "Fared Use', and '"the end of friction," commentators argue about the viability of copyright's fair use doctrine in a word of instantaneous transactions. As collecting societies such as the Copyright Clearance Center extend their licensing prowess, and Internet-based electronic commerce has made it possible to purchase digital copies with the click of a mouse, the suggestion is sometimes made that fair use could or should disappear. Decisions in the Second and Sixth Circuits have hinted that fair use may be foreclosed if a licensing market exists or is possible. The presence of "traditional, reasonable, or likely …
Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Scholarship Chronologically
Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …
Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Scholarship Chronologically
Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …