Law Commons^™

Software's Copyright Anticommons, Clark D. Asay

Faculty Scholarship

Scholars have long assessed “anticommons” problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.

In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has …

Copyright, Jane C. Ginsburg

Faculty Scholarship

This chapter o􀁼ers an overview of copyright in general in common law and civil law countries, with an emphasis on the United States (US) and the European Union (EU). It addresses the history and philosophies of copyright (authors’ right), subject matter of copyright (including the requirement of 􀁿xation and the exclusion of “ideas”), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. It also covers the liability of …

The Rcep And Intellectual Property Normsetting In The Asia-Pacific, Peter K. Yu

Faculty Scholarship

Commissioned for the CEIPI-ICTSD Series on Global Perspectives and Challenges for the Intellectual Property System, this article examines the Regional Comprehensive Economic Partnership (RCEP) with a focus on the intellectual property norms it seeks to develop. It begins by briefly discussing the partnership’s historical origins and ongoing negotiations. It then examines the latest leaked draft of the RCEP intellectual property chapter, highlighting the key provisions concerning copyright and related rights, trademarks, patents, trade secrets and undisclosed information, and intellectual property enforcement. This article concludes by exploring three scenarios concerning the future of this chapter--namely, the lack of an intellectual property …

‘Courts Have Twisted Themselves Into Knots’ (And The Twisted Knots Remain To Untangle): Us Copyright Protection For Applied Art After Star Athletica, Jane C. Ginsburg

Faculty Scholarship

Domestic and international law makers have struggled to determine whether, and to what extent, copyright law should cover works that are both artistic and functional. American courts' application of a statutory “separability” standard has become so convoluted that the U.S. Supreme Court has decided an appeal from a case in which the appellate court expressed the lament quoted in the title of this Chapter. The Chapter will review the genesis and application of the statutory standard, especially in the Supreme Court’s decision in Star Athletica v. Varsity Brands (2017), and, having concluded that the Supreme Court has failed to untangle …

Clarifying The Clear Meaning Of Separability, Shyamkrishna Balganesh

Faculty Scholarship

Speaking of the Copyright Act of 1909, noted copyright scholar Benjamin Kaplan had this to say about the role of judges therein:

[T]he statute, like its predecessors, leaves the development of fundamentals to the judges. Indeed the courts have had to be consulted at nearly every point, for the text of the statute has a maddeningly casual prolixity and imprecision throughout....

Judges, however, who in recent times have inclined against brutality, have run the risk of appearing slightly ridiculous in their tortuous interpretations.

The Copyright Act of 1976 was designed to avoid this imprecision and overt reliance on judicial creativity. …

Revising Racial Patents In An Era Of Precision Medicine, Jonathan Kahn

Faculty Scholarship

In 2006, I published an article examining the rising use of racial categories in biomedical patents in the aftermath of the successful completion of the Human Genome Project and the production of the first draft of a complete human genome. Ten years on, it now seems time to revisit the issue and consider it in light of the current era of “Precision Medicine” so prominently promoted by President Obama in his 2015 State of the Union address where he announced a $215 million proposal for the Precision Medicine Initiative as “a bold new research effort to revolutionize how we improve …

The Myth Of Uniformity In Ip Laws, Sharon Sandeen

Faculty Scholarship

When Congress enacts federal laws, it is often because of the asserted benefits of a “uniform” law and the, often unspoken, assumption that federal laws are somehow more uniform than uniform state laws. In fact, the uniformity argument was a primary justification for the enactment of both the Defend Trade Secrets Act of 2016 and the EU Trade Secret Directive.

The quest for uniformity, particularly with respect to laws that relate to intellectual property rights, is an old story in the United States. During the drafting of the U.S. Constitution, the existence of inconsistent state laws was a central reason …

The Sum Is More Public Domain Than Its Parts: Us Copyright Protection For Works Of Applied Art Under Star Athletica's Imagination Test, Jane C. Ginsburg

Faculty Scholarship

In Star Athletica v. Varsity Brands, the Supreme Court granted certiorari to resolve confusion in the lower courts regarding the "separability" predicate to copyright protection of decorative features of useful articles. Adopting the Gordian imagery evoked by other appellate courts, the Sixth Circuit in Varsity Brands lamented "[c]ourts have twisted themselves into knots trying to create a test to effectively ascertain whether the artistic aspects of a useful article can be identified separately from and exist independently of the article's utilitarian function." Star Athletica involved the "surface decorations" of stripes, chevrons, and color blocks applied to cheerleader uniforms. While the …

Heuristic Interventions In The Study Of Intellectual Property, Jessica Silbey

Faculty Scholarship

In this Essay, I review and elaborate on Dan's Burk's On the Sociology of Patenting with three "heuristic interventions" for the study of intellectual property law. These interventions derive from sociology and anthropology, and to some extent also from critical literary theory. Unoriginal in the social sciences, these heuristic interventions remain largely original to the study of law within law schools and traditional legal scholarship (as opposed to the study of law from within the social sciences and humanities). Burk joins a small but growing group of legal scholars, reaching beyond legal doctrinal analysis and the economic analysis of law …

The Immanent Rationality Of Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

Why does copyright treat certain kinds of copying as legally actionable? For nearly a century, American copyright thinking has referenced a core consequentialist dogma to answer this question: incentivizing the production of creative expression at minimal social cost in an effort to further social welfare. This rationale, routinely traced back to the Constitution’s seemingly utilitarian mandate that copyright law should “promote the [p]rogress” of the sciences and useful arts, has come to dominate modern copyright jurisprudence and analysis.2 By classifying specific acts of copying as a wrong, and thereby recognizing a “right to the use of one’s expression,” copyright is …

The Court Of Justice Of The European Union Creates An Eu Law Of Liability For Facilitation Of Copyright Infringement: Observations On Brein V. Filmspeler [C-527/15] (2017) And Brein V. Ziggo [C-610/15] (2017), Jane C. Ginsburg

Faculty Scholarship

After a series of decisions in which the Court of Justice of the European Union appeared to be cutting back on the application of the right of communication to the public with respect to the provision of hyperlinks, the Court’s most recent decisions in Brein v. Filmspeler (C-527/15) and Brein v. Ziggo (C-610/15) concerning, respectively, sale of a device pre-loaded with hyperlinks to illegal streaming sites, and The Pirate Bay BitTorrent platform, indicate instead that the Court’s prior caselaw was in fact gradually advancing toward a European harmonization of the law on derivative liability (i.e., liability in the second degree) …

Extended Collective Licenses In International Treaty Perspective: Issues And Statutory Implementation, Jane C. Ginsburg

Faculty Scholarship

National legislation establishing extended collective licenses (ECLs) “authoriz[es] a collective organization to license all works within a category, such as literary works, for particular, limited uses, regardless of whether copyright owners belong to the organization or not. The collective then negotiates agreements with user groups, and the terms of those agreements are binding upon all copyright owners by operation of law.” Albeit authorized under national laws, collective coverage of non-members’ works may pose issues of compatibility with international norms. For example, if non-members must opt-out in order to preserve the individual management of their rights, is the opt-out a “formality” …

Crossfertilizing Isds With Trips, Peter K. Yu

Faculty Scholarship

In the past few years, investor-state dispute settlement (ISDS) has garnered considerable scholarly, policy and media attention. Such attention can be partly attributed to the negotiation of the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP). It can also be attributed the growing use of ISDS to address international disputes involving intellectual property investments. Recent examples include Philip Morris’s now-failed attempts to challenge the tobacco control measures in Australia and Uruguay and Eli Lilly's equally unsuccessful effort to invalidate the patentability requirements in Canada.

Written for a symposium on investor-state arbitration, this article focuses on the growing use …

Fair Use And Fair Dealing: Two Approaches To Limitations And Exceptions In Copyright Law, Shyamkrishna Balganesh, David Nimmer

Faculty Scholarship

Premised on realizing a balance between protection and access, ‘limitations and exceptions’ play an important role in the any copyright system. Jurisdictions around the world are generally thought to adopt one of two possible approaches to structuring limitations and exceptions: (a) the fair dealing approach, which delineates highly specific and carefully-worded exceptions with little room for judicial discretion, and (b) the fair use approach, which relies on more open-ended language and its contextual tailoring by courts. This chapter undertakes a comparative analysis of these two approaches using the Indian and US copyright systems as its focus. It shows that, although …

The Role Of The Author In Copyright, Jane C. Ginsburg

Faculty Scholarship

Two encroachments, one long-standing, the other a product of the digital era, cramp the author’s place in copyright today. First, most authors lack bargaining power; the real economic actors in the copyright system have long been the publishers and other exploiters to whom authors cede their rights. These actors may advance the figure of the author for the moral luster it lends their appeals to lawmakers, but then may promptly despoil the creators of whatever increased protections they may have garnered. Second, the advent of new technologies of creation and dissemination of works of authorship not only threatens traditional revenue …

Amazon's Antitrust Paradox, Lina M. Khan

Faculty Scholarship

Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead. Through this strategy, the company has positioned itself at the center of e-commerce and now serves as essential infrastructure for a host of other …

Causing Copyright, Shyamkrishna Balganesh

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 …

Euro-Yearnings? Moving Toward A "Substantive" Registration-Based Trademark Regime, Jane C. Ginsburg

Faculty Scholarship

In Alan Jay Lerner’s lyric, Professor Henry Higgins laments: "Why can’t a woman be more like a man?" Professor Rebecca Tushnet’s provocative article in effect urges that a U.S. trademark should be more like a European Union trademark, at least with respect to the relationship of registration to substantive protection. The article convincingly exposes the current incoherence in U.S. trademark law – a hybrid between “procedural” and “substantive” registration regimes, in which the traditional emphasis on use-based trademark rights undermines the business-planning benefits that flow from registration.

Before elaborating on the similarities between Tushnet’s suggested reforms of U.S. trademark law …

The Commodification Of Trademarks: Some Final Thoughts On Trademark Dilution, Kenneth L. Port

Faculty Scholarship

This article is an explication of the trend toward commodification of famous or putatively famous trademarks and the resultant urging that the FTDA be repealed. This article starts with a literature review showing that the vast majority of commentators have been severely critical of the FTDA. This has been ignored by Congress. The article next pursues Congress's blind support of the FTDA and suggests that more thought and analysis from Congress is still required. The article next explains the data regarding FTDA claims. All reported cases from 1996 through 2015 are coded and examined. The conclusion, looking at the data, …