Law Commons^™

Law, Social Welfare, And Net Neutrality, Keith N. Hylton

Faculty Scholarship

Net neutrality generates wealth transfers from one type of internet content provider to another. In theory, these transfers might be socially desirable, and could be justified on the basis of informational externalities similar to those cited to justify fair use in copyright law. In practice, however, the conditions that justify fair use do not hold where net neutrality operates. Moreover, the internal subsidization required by net neutrality generates a regressive transfer. The welfare gains that might come from controlling anticompetitive abuse or government coercion through implementation of net neutrality can be achieved by alternative policies with less harmful consequences.

The Dual-Grant Theory Of Fair Use, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Fair use is one of modern law's most fascinating and troubling doctrines. It is amorphous and vague, and notoriously difficult to apply. It is, at the same time, vitally important in copyright and perhaps the most frequently raised and litigated issue in the law of intellectual property.

This article offers a novel theory of fair use that provides both a better understanding of the underlying principles and better tools for applying the doctrine.

In contrast with the dominant understanding of fair use in the literature — that fair use addresses market failure — the article proposes viewing fair use as …

Derivative Works 2.0: Reconsidering Transformative Use In The Age Of Crowdsourced Creation, Jacqueline D. Lipton, John Tehranian

Articles

Apple invites us to “Rip. Mix. Burn.” while Sony exhorts us to “make.believe.” Digital service providers enable us to create new forms of derivative work — work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement …

A Positive Externalities Approach To Copyright Law: Theory And Application, Jeffrey L. Harrison

Jeffrey L Harrison

The basic goal of copyright law is, at a general level, fairly well understood, yet the law itself seems untethered to any consistent analytical approach designed to achieve that goal. This Article has two goals. The first is to explain in some detail what copyright law might look like if it reflected economic reasoning. The second is to put to the test the question of whether copyright law is as far out of sync with economic guidelines as White-Smith Music and Eldred suggest. In order to understand the economic approach and the inconsistency of copyright law, as well as the …

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.

Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale

Frank A. Pasquale

The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal. In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …

Madisonian Fair Use, Michael J. Madison

Articles

This short essay reflects on developments in the law, scholarship, and practice of fair use since the publication in 2004 of an earlier article on patterns in fair use practice and adjudication. It synthesizes many of those developments in the idea of “Madisonian” fair use, borrowing the separation of powers metaphor from James Madison’s work on the US Constitution and applying it, lightly and in a preliminary way, to copyright.

Introduction To Crtical Concepts In Intellectual Property Law: Copyright, Christopher S. Yoo

All Faculty Scholarship

The two-volume set entitled Critical Concepts in Intellectual Property Law: Copyright brings together a thought-provoking collection of landmark and recent scholarship on copyright. Section 1 of Volume I focuses on the history of copyright, with Tyler Ochoa and Mark Rose providing an example of the prevailing interpretation of the history and articles by Thomas Nachbar and by William Treanor and Paul Schwartz offering fresh takes on the early English and American experiences. Section 2 focuses on copyright’s philosophical foundations, framed by the work of Justin Hughes and followed by revisionist perspectives on Lockean and Hegelian theory offered by Seana Shiffrin …

Some Optimism About Fair Use And Copyright Law, Michael J. Madison

Articles

This short paper reflects on the emergence of codes of best practices in fair use, highlighting both the relationship between the best practices approach and an institutional perspective on copyright and the relationship between the best practices approach and social processes of innovation and creativity.

File Sharing, Copyright, And The Optimal Production Of Music, Gerald R. Faulhaber

Michigan Telecommunications & Technology Law Review

Much economic, political, judicial and legal attention has been showered on the significant changes currently taking place within the music production and distribution business forced by the use of the Internet for both file sharing (of unauthorized copyrighted material) and more recent online (legal) music distribution. The strong demand for music, coupled with the low cost of distributing illegal copies via peer-to-peer (P2P) systems, is unraveling the business model by which music has traditionally been created, developed, and distributed. Application of traditional copyright law has been ineffective in stopping the loss of business in the traditional channels. Producers have implemented …

Risk Aversion And Rights Accretion In Intellectual Property Law, James Gibson

ExpressO

Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict, intellectual property users often seek licenses even when proceeding without one might be permissible. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine; the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory--where risk aversion again creates licensing markets, which cause …

Beyond Abstraction, The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew J. Sag

ExpressO

Uncertainty as to the optimum extent of protection has generally limited the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This article explores the relationship between copyright scope, doctrinal efficiency and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law. The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use.

Beyond Abstraction: The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew Sag

Faculty Articles

Uncertainty as to the optimum extent of protection generally limits the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This Article explores the relationship between copyright scope, doctrinal efficiency, and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law.

The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use. The metric-driven analysis adopted in this Article demonstrates the general robustness of the market-failure approach to …

A Positive Externalities Approach To Copyright Law: Theory And Application, Jeffrey L. Harrison

UF Law Faculty Publications

The basic goal of copyright law is, at a general level, fairly well understood, yet the law itself seems untethered to any consistent analytical approach designed to achieve that goal. This Article has two goals. The first is to explain in some detail what copyright law might look like if it reflected economic reasoning. The second is to put to the test the question of whether copyright law is as far out of sync with economic guidelines as White-Smith Music and Eldred suggest.

In order to understand the economic approach and the inconsistency of copyright law, as well as the …

Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale

Faculty Scholarship

The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal.

In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …

Solving The Digital Piracy Puzzle: Disaggregating Fair Use From The Dmca's Anti-Device Provisions, Jacqueline D. Lipton

Articles

Copyright law has always involved balancing creative pursuits against innovations in copying, distribution and, more recently, encryption technologies. A significant problem for copyright law is that many such technologies can be utilized for both socially useful and socially harmful purposes. It is difficult to regulate such technologies in a way that prevents social harms while at the same time facilitating social benefits. The most recent example of this dynamic is evident in the 2005 United States Supreme Court decision in MGM v Grokster - dealing with digital file-sharing technologies. This article draws from the file sharing debate in considering another …

Rewriting Fair Use And The Future Of Copyright Reform, Michael J. Madison

Articles

This Essay describes a social practices approach to the production of creative expression, as a construct to guide reform of copyright law. Specifically, it reimagines copyright's fair use doctrine by basing its statutory text explicitly on social practices. It argues that the social practices approach is consistent with the historical development of the fair use doctrine and with the policy goals of copyright law, and that the approach should be recognized in the text of the statute as well as in judicial applications of fair use.

Paradigm Shifts And Access Controls: An Economic Analysis Of The Anticircumvention Provisions Of The Digital Millennium Copyright Act, Melissa A. Kern

University of Michigan Journal of Law Reform

This Note addresses the broadened scope of protection granted to copyright holders under the anticircumvention provisions of the Digital Millennium Copyright Act of 1998 (DMCA). This broadened scope extends to copyright holders the right to control access to their works, diminishing the consumer's 'fair use" of those works that previously served as a defense to alleged copyright infringements. While access controls are supported by economists who believe they are useful in correcting market inefficiencies and excluding free riders, this Note suggests that access controls cannot correct all market inefficiencies. Furthermore, such access controls deny access and use of copyrighted material …

What's My Copy Right?, Michael J. Madison

Articles

This piece consists of an early 21st century whimsy, a dialogue that borrows and blends history and humor to illustrate some puzzles of copyright law in the context of digital technology (with references to Folsom v. Marsh and Abbott & Costello).

Copyright And Parody: Touring The Certainties Of Property And Restitution, Wendy J. Gordon

Faculty Scholarship

One of the supposed certainties of the common law is that persons need not pay for benefits they receive except when they have agreed in advance to make payment. The rule takes many forms. One of the most familiar is the doctrine that absent a contractual obligation, a person benefited by a volunteer ordinarily need not pay for what he has received. This rule supposedly both encourages economic efficiency and respects autonomy.

Complexity And Copyright In Contradiction, Michael J. Madison

Articles

The title of the article is a deliberate play on architect Robert Venturi's classic of post-modern architectural theory, Complexity and Contradiction in Architecture. The article analyzes metaphorical 'architectures' of copyright and cyberspace using architectural and land use theories developed for the physical world. It applies this analysis to copyright law through the lens of the First Amendment. I argue that the 'simplicity' of digital engineering is undermining desirable 'complexity' in legal and physical structures that regulate expressive works.

Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen

Michigan Law Review

Ninety-three years ago, in Lochner v. New York, the Supreme Court struck down a maximum-working-hours law for bakers as an impermissible invasion of employer-employee liberty of contract and, by implication, of the employer's property rights in his business. Lochner came to symbolize, and was vilified for, a vision of state power as rigidly circumscribed by the operation of judicially-determined laws of social ordering. By the late 1930s, the Court had changed course and accepted that the states' police power - or, in the case of Congress, the commerce power - encompassed even protective regulation of the parameters of the private …

Legal-Ware: Contract And Copyright In The Digital Age, Michael J. Madison

Articles

ProCD, Inc. v. Zeidenberg, which enforced a shrinkwrap license for computer software, has encouraged the expansion of the shrinkwrap form beyond computer programs, forward, onto the Internet, and backward, toward such traditional works as books and magazines. Authors and publishers are using that case to advance norms of information use that exclude, practically and conceptually, a robust public domain and a meaningful doctrine of fair use. Contesting such efforts by focusing on the contractual nature of traditional shrinkwrap, by relying on market principles, on adhesion theory, on commercial law concepts of usage and custom, or on federal preemption doctrine, feeds …

Is Turn About Fair Play? Copyright Law And The Fair Use Of Computer Software Loaded Into Ram, Chad G. Asarch

Michigan Law Review

Computer systems, especially those in heavy-use commercial settings, often require routine maintenance to continue functioning properly. Many businesses turn to an independent service organization ("IS0") to provide computer maintenance services because ISOs frequently charge less than the original equipment manufacturer ("OEM") for those services. The tremendous growth in computer use has spawned a multi-billion dollar computer maintenance industry in the United States, and ISOs and OEMs have become engaged in fierce competition for this computer service business. The struggle between ISOs and OEMs to capture this expanding market has spilled over into the courts, spawning a number of recent decisions …

The Economics Of Copyright, Robert G. Bone, Wendy J. Gordon

Scholarship Chronologically

Copyright law protects works of creative expression. At its relatively uncontroversial core lie songs, plays, novels, paintings, and other works of aesthetic value. But copyright is not confined solely to aesthetic subject matter; in many countries, it extends to works of fact, such as biographies, maps, and telephone directories, and to works with practical value. For example, one of the most controversial issues in copyright law today is whether and how much copyright should protect computer programs.