Law Commons^™

Legal Nature Of Emails: A Comparative Perspective, Edina Harbinja

Duke Law & Technology Review

There is currently a conflict between laws and the market in their treatment of email. Laws mandate that emails are not protected as property unless copyrightable or protected by another legal mechanism. But the market suggests that emails are user-owned property without further qualification. Moreover, the nature of email is treated slightly differently between the U.S. and U.K. legal regimes. While the current legal regimes applicable to email in the U.K. and U.S. are reasonable, legal harmonization within these systems, and with the service provider market, should be achieved.

Extending Copyright Protection To Combat Free-Riding By Digital News Aggregators And Online Search Engines, Nancy Whitmore

Nancy J. Whitmore

No abstract provided.

You(Tube), Me, And Content Id: Paving The Way For Compulsory Synchronization Licensing On User-Generated Content Platforms, Nicholas Thomas Delisa

Brooklyn Law Review

The changing landscape of digital media technology makes it increasingly difficult for owners of copyrighted music to monitor how their works are being exploited across the Internet. This is especially true of user-generated content (UGC) platforms—websites and applications such as Facebook, YouTube, and Snapchat, where content is created or uploaded predominantly by users. These services pose a special problem to copyright owners because, instead of content being uploaded from a single source that is easily sued and has deep pockets, content is uploaded by users. Users are a troublesome group because they are innumerable, sometimes anonymous, and mostly click on …

Fetishizing Copies, Jessica Litman

Jessica Litman

We have copyright laws to encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This …

Copyright For Literate Robots, James Grimmelmann

Cornell Law Faculty Publications

Almost by accident, copyright has concluded that copyright law is for humans only: reading performed by computers doesn't count as infringement. Conceptually, this makes sense: copyright's ideal of romantic readership involves humans writing for other humans. But in an age when more and more manipulation of copyrighted works is carried out by automated processes, this split between human reading (infringement) and robotic reading (exempt) has odd consequences and creates its own tendencies toward a copyright system in which humans occupy a surprisingly peripheral place. This essay describes the shifts in fair use law that brought us here and reflects on …

Authority And Authors And Codes, Michael J. Madison

Articles

Contests over the meaning and application of the federal Computer Fraud and Abuse Act (“CFAA”) expose long-standing, complex questions about the sources and impacts of the concept of authority in law and culture. Accessing a computer network “without authorization” and by “exceeding authorized access” is forbidden by the CFAA. Courts are divided in their interpretation of this language in the statute. This Article first proposes to address the issue with an insight from social science research. Neither criminal nor civil liability under the CFAA should attach unless the alleged violator has transgressed some border or boundary that is rendered visible …

Intellectual Property In News? Why Not?, Sam Ricketson, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out …

Extending Copyright Protection To Combat Free-Riding By Digital News Aggregators And Online Search Engines, Nancy J. Whitmore

Catholic University Journal of Law and Technology

No abstract provided.

Some Key Things Entrepreneurs Need To Know About The Law And Lawyers, Lawrence J. Trautman, Anthony Luppino, Malika S. Simmons

Lawrence J. Trautman Sr.

New business formation is a powerful economic engine that creates jobs. Diverse legal issues are encountered as a start-up entity approaches formation, initial capitalization and fundraising, arrangements with employees and independent contractors, and relationships with other third parties. The endeavors of a typical start-up in the United States will likely implicate many of the following areas of law: intellectual property; business organizations; tax laws; employment and labor laws; securities regulation; contracts and licensing agreements; commercial sales; debtor-creditor relations; real estate law; health and safety laws/codes; permits and licenses; environmental protection; industry specific regulatory laws and approval processes; tort/personal injury, products …

Users' Patronage: The Return Of The Gift In The "Crowd Society", Giancarlo F. Frosio

Giancarlo Francesco Frosio

In this work, I discuss the tension between gift and market economy throughout the history of creativity. For millennia, the production of creative artifacts has lain at the intersection between gift and market economy. From the time of Pindar and Simonides – and until the Romanticism will commence a process leading to the complete commodification of creative artifacts – market exchange models run parallel to gift exchange. From Roman amicitia to the medieval and Renaissance belief that “scientia donum dei est, unde vendi non potest,” creativity has been repeatedly construed as a gift. Again, at the time of the British …

Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest

Sean Pager

INFRINGEMENT AS UNFAIR COMPETITION: A BLUEPRINT FOR GLOBAL GOVERNANCE?

Sean A. Pager Michigan State University College of Law

Eric Priest University of Oregon School of Law

ABSTRACT

This Article examines a new approach to address persistent regulatory failures in global supply chains. In a series of recent cases, unfair competition actions have been brought in U.S. court against foreign manufacturers who infringe software overseas under the theory that the cost savings from infringement confers an unfair advantage in U.S. markets. While this theory has been advanced in the intellectual property context, the same approach could work to target abuses in …

Copyright Tensions In A Digital Age, John D. Shuff, Geoffrey T. Holtz

Akron Law Review

The rapid and exponential expansion of our ability to duplicate and disseminate information by digital means has rejuvenated inherent tensions in the law pertaining to copyright and has created some new ones. Not since the advent of radio in the early 1900s have such tensions come so squarely into focus. Even though courts are rarely, if ever, called upon to address certain of these tensions since the passage of the Copyright Act of 1976, they are being called upon to do so now

The Medium Is The Message: Copyright Law Confronts The Information Age In New York Times V. Tasini, Mark B. Radefeld

Akron Law Review

This Note analyzes the Supreme Court’s recent opinion in New York Times Co. v. Tasini and its implications for the future of copyright law and electronic publishing. Part II of this Note documents the background of copyright law, and details how the default provisions of §201(c) govern the publisher-author relationship. Part III of this Note introduces the parties and circumstances surrounding the Tasini case. Part III continues by outlining the District Court for the Southern District of New York, the Court of Appeals for the Second Circuit, and the Supreme Court decisions in this landmark case. Part IV of this …

Transforming “Transformative Use”: The Growing Misinterpretation Of The Fair Use Doctrine, Caile Morris

Pace Intellectual Property, Sports & Entertainment Law Forum

Starting in late 2012, and continuing into late 2013, the United States District Court for the Southern District of New York wreaked havoc on the traditional interpretation of the copyright infringement defense known as “fair use.” Two cases stemming from the advent of the Google Books Project are Author’s Guild, Inc. v. HathiTrust and Author’s Guild, Inc. v. Google, Inc. These cases adopted a controversial interpretation of the fair use defense, codified in 17 U.S.C. § 107, when each case determined that the mass digitization of thousands of books constituted fair use merely because the digitization was what is known …

Campbell At 21/Sony At 31, Jessica Litman

Jessica Litman

When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly 40 years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty …

Copyright And Social Media: A Tale Of Legislative Abdication, Diane Leenheer Zimmerman

Pace Law Review

The focus of this article will be on what I call DMCA 2.0. It will begin by discussing the Digital Millennium Copyright Act (DMCA) and why that statute, passed in 1998 to shore up the enforceability of copyright online by protecting content providers’ ability to engage in forms of technological self-help against online copyright infringers, has been problematic. Part II describes largely unsuccessful efforts in the form of statutes and trade agreements to shore up the DMCA. Part III turns to the latest salvo, the adoption of “voluntary agreements” whereby content owners and ISPs, in particular social media platforms, join …

Transformative Teaching And Educational Fair Use After Georgia State, Brandon C. Butler

Brandon C. Butler

The Supreme Court has said that copyright’s fair use doctrine is a “First Amendment safety valve” because it ensures that certain crucial cultural activities are not unduly burdened by copyright. While many such activities (criticism, commentary, parody) have benefited from the courts’ increased attention to first amendment values, one such activity, education, has been mired for years in a minimalist, market-based vision of fair use that is largely out of touch with mainstream fair use jurisprudence. The latest installment in the history of educational fair use, the 11th Circuit’s opinion in the Georgia State e-reserves case, may be the last …

Copyright, Consumerism, And The Cloud: Proposing Standards-Essential Technology To Support First Sale In Digital Copyright, Marco Puccia

Seattle University Law Review

America’s entertainment industry, and the creative talent that drives it, is a national treasure. Equally valuable, however, is America’s drive and commitment toward technological innovation. These two sectors have been in tension since at least 1908, when the U.S. Supreme Court was asked to determine whether the makers of piano rolls for automatically playing pianos had to pay royalties to the composers. Since that time, the entertainment industry has continued to use copyright law to resist advances in technological innovation that it views as a threat to its existing business models. This Note seeks to provide the necessary context and …

Doma's Ghost And Copyright Reversionary Interests, Brad A. Greenberg

Northwestern University Law Review

No abstract provided.

Ip Basics: Copyright On The Internet, Thomas G. Field Jr.

Law Faculty Scholarship

This discussion focuses on copyright issues most apt to concern those who post to or own email lists or those who have put up web pages. Such matters as the fundamental distinction between works that are and are not "for hire," registration, and issues to consider in transferring copyright interests are treated in other copyright discussions above.

Authors, Online, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The fate of professional creators is a major cultural issue. While specific copyright rules are obviously contingent and should be adapted to the new realities of online distribution and easy reuse, professional authorship remains necessary. I also believe that to be a professional author, creators need time, which, in turn, does require some form of payment. We need healthy financial flows to allow professional authors to make a decent, market-based living. This requires a move away from one-size-fits-all copyright and the resulting "tug of norms" that requires a shift of the entire policy package to the benefit of one category …

The Multiplicity Of Copyright Laws On The Internet, Marketa Trimble

Scholarly Works

From the early days of the Internet, commentators have warned that it would be impossible for those who act on the Internet (“Internet actors”) to comply with the copyright laws of all Internet-connected countries if the national copyright laws of all those countries were to apply simultaneously to Internet activity. A multiplicity of applicable copyright laws seems plausible at least when the Internet activity is ubiquitous — i.e., unrestricted by geoblocking or by other means — given the territoriality principle that governs international copyright law and the choice-of-law rules that countries typically use for copyright infringements.

This Article posits that …

Danger In The Dmca Safe Harbors: The Need To Narrow What Constitutes Red Flag Knowledge, Hank Fisher

University of Richmond Law Review

No abstract provided.

Copyright Porn Trolls, Wasting Taxi Medallions, And The Propriety Of ‘Property’, Tom W. Bell

Tom W. Bell

What happens when the government creates privileges that have powers rivaling those that the common law accords to property? Recent events in two seemingly unrelated areas suggest a troubling answer to that question. First, in copyright, porn trolls have sued thousands of John Does for allegedly participating in illegal file sharing. These suits evidently seek not judicial vindication but merely the defendants' identities, which the plaintiffs then use to reap settlement payments from guilty and innocent alike. Second, taxi drivers in cities across the world have launched legal, political, and physical attacks against Uber and other networked transportation services, accusing …

The Google Art Project: An Analysis From A Legal And Social Perspective On Copyright Implications, Katrina Wu

Katrina Wu

The Google Art Project is an ambitious attempt by Google to curate worldwide artwork online in the highest resolution possible. Google accomplishes this by partnering with museums where museums provide access to art collections and Google provides the technology to capture high quality images. Under this existing model, Google places the burden of copyright clearances on museums and removes images from online if requested by copyright owners. An endeavor like the Google Art Project is not unprecedented however, when Google attempted to put the world’s books online under the Google Books Project, scanning millions of titles and offering snippets for …

Stay Tuned: Whether Cloud-Based Service Providers Can Have Their Copyrighted Cake And Eat It Too, Amanda Asaro

Fordham Law Review

Copyright owners have the exclusive right to perform their works publicly and the ability to license their work to others who want to share that right. Subsections 106(4) and (5) of the Copyright Act govern this exclusive public performance right, but neither subsection elaborates on what constitutes a performance made “to the public” versus one that remains private. This lack of clarity has made it difficult for courts to apply the Copyright Act consistently, especially in the face of changing technology.

Companies like Aereo, Inc. and AereoKiller, Inc. developed novel ways to transmit content over the internet to be viewed …

Digital Music Sampling And Copyright Policy - A Bittersweet Symphony? Assessing The Continued Legality Of Music Sampling In The United Kingdom, The Netherlands, And The United States, Melissa Hahn

Georgia Journal of International & Comparative Law

No abstract provided.

Reforming Copyright Interpretation, Zahr K. Said

Zahr K Said

This Article argues that copyright law needs to acknowledge and reform its interpretive choice regime. Even though judges face potentially outcome-determinative choices among competing sources of interpretive authority when they adjudicate copyrightable works, their selection of interpretive methods has been almost entirely overlooked by scholars and judges alike. This selection among competing interpretive methods demands that judges choose where to locate their own authority: in the work itself; in the context around the work, including its reception, or in the author’s intentions; in expert opinions; or in judicial intuition. Copyright’s interpretive choice regime controls questions of major importance for the …

The Next Great Youtube: Improving Content Id To Foster Creativity, Cooperation, And Fair Compensation, Benjamin Boroughf

Benjamin Boroughf

YouTube prides itself on its automatic copyright detection and filtering program known as Content ID because it goes beyond YouTube’s legal responsibilities under the Digital Millennium Copyright Act and because it allows copyright holders to control and profit from their content. However, Content ID is not the technological paragon YouTube and some scholars see it as. By relying on a system that automatically matches, blocks, and monetizes videos that allegedly contain any amount of infringing content, both YouTube and copyright holders have promoted a system that opposes the Copyright Act and YouTube’s goals of promoting creativity and protecting fair use. …

Ip Law Book Review: Configuring The Networked Self: Law, Code, And The Play Of Every Day Practice, Frank Pasquale

Frank A. Pasquale

Julie Cohen's Configuring the Networked Self is an extraordinarily insightful book. Cohen not only applies extant theory to law; she also distills it into her own distinctive social theory of the information age. Thus, even relatively short sections of chapters of her book often merit article-length close readings. I here offer a brief for the practical importance of Cohen’s theory, and ways it should influence intellectual property policy and scholarship.