Law Commons^™

What's A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property, Christopher J. Buccafusco, Christopher Jon Sprigman, Zachary C. Burns

All Faculty Scholarship

Despite considerable research suggesting that creators value attribution – i.e., being named as the creator of a work – U.S. intellectual property (IP) law does not provide a right to attribution to the vast majority of creators. On the other side of the Atlantic, however, many European countries give creators, at least in their copyright laws, much stronger rights to attribution. At first blush it may seem that the U.S. has gotten it wrong, and the Europeans have made a better policy choice in providing to creators a right that they value. But for reasons we will explain in this …

Competition And Innovation In Copyright And The Dmca, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Objections To The Proposed Access Copyright Post-Secondary Tariff And Its Progeny Licenses: A Working Paper, Samuel Trosow, Scott Armstrong, Brent Harasym

FIMS Publications

On March 31, 2010, Access Copyright applied to the Copyright Board to certify a tariff that would govern the relationship between the organization and the members of the Association of Universities and Colleges of Canada (AUCC) and the Association of Community Colleges of Canada (ACCC). Previously, the relationship had been governed by a series of license agreements between the organizations which had been periodically renewed. But Access Copyright chose not to seek renewal of the licenses, and applied to the Board to certify a general tariff that would cover all post-secondary institutions for the period of 2011 through 2013.

Access …

District Court: Final Order (2012), Orinda Evans

Georgia State University Copyright Lawsuit

No abstract provided.

Book Review Of Copyright For Teachers & Librarians In The 21st Century, Benjamin J. Keele

Library Staff Publications

No abstract provided.

Three Theories Of Copyright In Ratings, James Grimmelmann

Cornell Law Faculty Publications

Are ratings copyrightable? The answer depends on what ratings are. As a history of copyright in ratings shows, some courts treat them as unoriginal facts, some treat them as creative opinions, and some treat them as troubling self-fulfilling prophecies. The push and pull among these three theories explains why ratings are such a difficult boundary case for copyright, both doctrinally and theoretically. The fact-opinion tension creates a perverse incentive for raters: the less useful a rating, the more copyrightable it looks. Self-fulfilling ratings are the most troubling of all: copyright’s usual balance between incentives and access becomes indeterminate when ratings …

One Step Ahead Two Steps Back: Reverse Engineering 2nd Draft For 3rd Revision Of The Chinese Copyright Law, Hong Xue

Joint PIJIP/TLS Research Paper Series

On July 6, 2012, the National Copyright Administration of China released the 2nd Draft of the 3rd Revision of the copyright law, in which 81 provisions were changed from the 1st Draft. It does contain a few improvements, but it contains more compromises and even steps backward under the pressure of interest groups. It is unfortunate that China, the largest country by both population and Internet users, despite its fast-growing economy, seems missing the opportunities to craft a 21st-Century Copyright Law, but instead follows the old path of “the more the better” (more copyright protection and enforcement, the better economic …

Innovation And Competition Policy: Statutory Supplement And Other Materials, Herbert J. Hovenkamp

All Faculty Scholarship

This Supplement to Cases and Materials on Innovation and Competition Policy includes the following: (1) a statutory supplement containing relevant provisions of the antitrust laws, the Patent Act, the Copyright Act, and the DMCA: (2) an annotated table of contents. Other supplemental materials, including discussion of recent decisions or other developments, will be added from time to time.

This book will be supplemented frequently as important new decisions or other developments occur. However, the author will attempt not to revise individual chapters during the course of the academic semester in order to avoid confusion in pagination or printing. Instead, supplemental …

The Uncertain Future Of "Hot News" Misappropriation After Barclays Capital V. Theflyonthewall.Com, Shyamkrishna Balganesh

All Faculty Scholarship

This is a follow-up piece to Professor Balganesh's 'Hot News': The Enduring Myth of Property in News, 111 COLUM. L. REV. 419 (2011), based on the Second Circuit's decision in Barclays Capital Inc. v. Theflyonthewall.com, 650 F.3d 876 (2d Cir. 2011).

Ruling In Georgia State Copyright Case Is Mostly Good News For Libraries, James S. Heller, Paul Hellyer, Benjamin J. Keele

Popular Media

No abstract provided.

District Court: Cambridge Univ. Press V. Becker - Ruling (2012), Orinda Evans

Georgia State University Copyright Lawsuit

Ruling from the District Court

Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190 (N.D. Ga. 2012)

Book Review Of Reclaiming Fair Use: How To Put Balance Back In Copyright, Benjamin J. Keele

Library Staff Publications

No abstract provided.

Who's The Author? A Bright-Line Rule For Specially Commissioned Works Made For Hire, Richard D. Palmieri

Law Student Publications

This comment argues that the best way to clarify the answer to the question "Who's the author?" (and thus to clarify whether the creator has a termination right) is to resolve the circuit split in favor of a bright-line rule requiring execution of the written agreement prior to the creation of the work. Part I introduces the legal framework under which the issue must be analyzed. Part II reviews the holdings on each side of the circuit split. Part III presents the arguments that both proper statutory construction of U.S. copyright law and the legislative history of the termination right, …

Panel Discussion On Libraries And Best Practices In Fair Use, Andrée J. Rathemacher

Technical Services Department Faculty Publications

This report covers a panel discussion on the Code of Best Practices in Fair Use for Academic and Research Libraries, published in January 2012 by the Association of Research Libraries (ARL). The panel was held at the Massachusetts Institute of Technology (MIT) on March 23, 2012 and was hosted by the MIT Libraries. Panelists were Patricia Aufderheide of the Center for Social Media at American University; Brandon Butler of ARL; Kyle Courtney of Harvard Law School; and Jay Wilcoxson of MIT.

Beyond The Unrealistic Solution For Development Provided By The Appendix Of The Berne Convention On Copyright, Alberto Cerda Silva

Joint PIJIP/TLS Research Paper Series

The standards of copyright protection promoted by the Berne Convention are highly problematic for developing countries because these countries need to ensure a wide dissemination of works for teaching, scholarship, and research purposes. In order to accommodate these needs and to promote accession to this Convention, the 1971 Paris Act of the Berne Convention, included an Appendix that allowed developing countries to issue compulsory licenses for translating and/or reproducing foreign works into languages of general use in their territories. Unfortunately, the Appendix has not met the needs of developing countries, which, instead, have relied on idiosyncratic solutions. Additionally, the instrument …

A Pragmatic Approach To Intellectual Property And Development: A Case Study Of The Jordanian Copyright Law In The Internet Age, Rami Olwan

Joint PIJIP/TLS Research Paper Series

On October 4, 2004, Brazil and Argentina requested that WIPO adopt a development-oriented approach to IP and to reconsider its work in relation to developing countries. In October, 2007, WIPO member States adopted a historic decision for the benefit of developing countries, to establish a WIPO Development Agenda. Although there have been several studies related to IP and development that call for IP laws in developing countries to be development-friendly, there is little research that attempts to provide developing countries with practical measures to achieve that goal. This article takes the copyright law in Jordan as a case study and …

Advising Faculty On Law Journal Publication Agreements, Benjamin J. Keele

Library Staff Publications

No abstract provided.

The Sopa-Tpp Nexus, Jonathan Band

Joint PIJIP/TLS Research Paper Series

The controversy in the United States over the Stop Online Piracy Act (SOPA) has profound implications for the Trans-Pacific Partnership (TPP) agreement. The SOPA debate underscores the importance of striking the proper balance in intellectual property laws to promote creativity and innovation. It demonstrates that over-protection can stifle free expression and the effective operation of the Internet as a medium of communication and commerce not only within a jurisdiction, but also extraterritorially. Additionally, the debate reveals the ability of the Internet community to mobilize quickly to defeat policies that it believes threaten its existence. TPP negotiators should understand the SOPA …

Positive Proposals For Treatment Of Online Intermediaries, Margot E. Kaminski

Joint PIJIP/TLS Research Paper Series

In the past several years of free trade agreement negotiations, a number of proposals for establishing an international standard of liability for copyright infringement by online intermediaries have emerged. These proposals consistently lack consideration of their implications for Internet users. Building off a public stakeholder presentation given by the author at the ninth round of negotiations of the Trans-Pacific Partnership (TPP) Agreement, held in Lima, Peru, this paper aims to identify both general principles and specific user-protecting provisions that should be considered when discussing proposals for intermediary liability.

Privacy, Copyright, And Letters, Jeffrey L. Harrison

UF Law Faculty Publications

The focus of this Essay is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …

The Librarian’S Copyright Companion, James S. Heller, Paul Hellyer, Benjamin J. Keele

Library Staff Publications

The transition from print to digital continues. The Copyright Act has changed a little, but not for the better. This book begins with the premise that copyright exists to promote the dissemination of information, and while creators have certain rights, so do users. This new edition updates every chapter and adds a new chapter on the library as a publisher. Also included is information on recent developments such as Creative Common licenses and the use of digital video (e.g. YouTube) in the classroom.

Copyright And Federal Supremacy, James Gibson

Law Faculty Publications

The extent of federal power over our lives has been much in the news recently, what with the Supreme Court holding days of hearings on whether the Affordable Care Act is an unconstitutional exercise of Congress’s power under the Commerce Clause. Like the ACA, copyright regulation is federal, but it derives its constitutional authority from a different part of the Constitution, known as the Patent and Copyright Clause, which gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” …

Trademark Tension, Part Ii, James Gibson

Law Faculty Publications

In the previous entry in this series, I discussed the narrow foundations of trademark law and its more recent expansion – in particular, how new approaches to trademark liability have departed from the law’s traditional focus on disputes about the source of competing goods. I continue that theme now by considering a tension that emerges from this expansion. Although trademark liability has expanded beyond source-identification, other aspects of trademark law have not, and these more traditional aspects can rise up and trap the unwary mark owner, or at least turn its expanded rights into expanded costs.

To understand the tension …

Orphan Works As Grist For The Data Mill, Matthew Sag

Faculty Articles

The phenomenon of library digitization in general, and the digitization of so-called “orphan works” in particular, raises many important copyright law questions. However, as this Article explains, correctly understood, there is no orphan works problem for certain kinds of library digitization.

The distinction between expressive and non-expressive works is already well recognized in copyright law as the gatekeeper to copyright protection—novels are protected by copyright, while telephone books and other uncreative compilations of data are not. The same distinction should generally be made in relation to potential acts of infringement. Preserving the functional force of the idea-expression distinction in the …

Personal Jurisdiction And Joinder In Mass Copyright Troll Litigation, Jason R. Lafond

Maryland Law Review Online

No abstract provided.

Top Tens In 2011: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

This paper discusses notable intellectual property law cases in the United States in 2011. Patent cases addressed such issues as the scope of patent subject matter (the patentability of human genes and methods for testing for genetic links to cancer), the standards for challenges to the validity of patents (such as where technology that was not considered by the patent office is put in evidence), and the breadth of patent protection (especially with respect to the scope of protection for software patents). Other cases tested the borders of trademark protection – distinctiveness, functionality, and the interplay between trademark law and …

The Top Three Patent Cases Of 2012, James Gibson

Law Faculty Publications

New Year’s Day prompts us to reflect on what the last 12 months have brought, so I’ve taken the opportunity to think back on 2012’s intellectual property developments. It’s been a busy year, with patent reform, new technologies, multilateral treaties, and more. To make my task more manageable, I’m going to focus on three important patent law cases – one at the Supreme Court level, one at the appellate level, and one at the trial court level. I’ll conclude with an extra-special bonus: the Case To Watch for patent law in 2013. Then, in my next entry in this series, …

Google Books: Finally, An Actual Fair Use Ruling!, James Gibson

Law Faculty Publications

One of our favorite topics in this Intellectual Property Issues series – perhaps the favorite – is Google Books, the massive project through which Google hopes to bring its search capability to the text of all books in the English language. To make a book’s text searchable, however, Google must scan the book. And scanning is copying. And copying usually means copyright infringement. Certainly the many authors and publishers who have sued Google take this view.

There are two ways to avoid infringement when copying a copyrighted book: get a license or prove that the copying constitutes fair use. Many …

Apple V. Samsung: A Primer, James Gibson

Law Faculty Publications

The jury verdict in the Apple v. Samsung case is in, and it is a whopper: $1.05 billion in damages, to be paid by Samsung to Apple for violating various intellectual property rights in the iPhone and iPad. In all likelihood, the court will follow that up with an order banning several Samsung products from the U.S. marketplace. So what is this case all about?

What Are Apple’s Claims?

Apple had several different theories of infringement here, and the jury bought almost all of them, at least with regard to certain Samsung devices. Here are the theories that won Apple …

Copyright's Gray Market, Redux, James Gibson

Law Faculty Publications

In an earlier entry in this series, I discussed an important issue in copyright law – whether the first sale doctrine applies to goods manufactured abroad. The Supreme Court was set to decide the issue in Costco v. Omega, but the Court split 4-4 and so left the matter unresolved.

Now the issue is back before the Supreme Court, in a case for which certiorari was granted this month: Kirtsaeng v. John Wiley & Sons. Supap Kirtsaeng is a native of Thailand who moved to the United States to attend college. To subsidize his tuition, he began importing textbooks that …