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Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey
Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey
Faculty Scholarship
This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. …
Draft Of Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide - 2019, Wendy J. Gordon
Draft Of Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide - 2019, Wendy J. Gordon
Scholarship Chronologically
This Paper was presented at the conference, "A Celebration of the Work of Wendy Gordon," at Boston University school of law on June 14, 2019. In presented an earlier draft under the title, Transformative Use, Proximate Cause, and Copyright, at the University of Texas at Austin on March 23, 2017. Under the title, Inegrating Judge Legal's Theory of Fair Use into on Economic View of Copyright Law: From "proximate Cause" to "Transormative Use," the paper was also presented at the March, 2016, "Conference on IP and Private Law," held at Harvard Law School. I am grateful to …
Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon
Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon
Faculty Scholarship
My own view is that Goold overstates the explanatory role of tort law. But even were that not the case, the courts need to reach some kind of “settled” understanding on these various interests before a cause of action is created or definitively rejected, and that no such consensus on the three matters mentioned yet exists, whether they are viewed as forms of tort or otherwise. Goold’s work may nevertheless be an important step toward reaching closure on these and other open questions in copyright law.
Copyright And Tort As Mirror Models: On Not Mistaking For The Right Hand What The Left Hand Is Doing, Wendy J. Gordon
Copyright And Tort As Mirror Models: On Not Mistaking For The Right Hand What The Left Hand Is Doing, Wendy J. Gordon
Faculty Scholarship
No abstract provided.
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 …
Copyright And Parody: Touring The Certainties Of Property And Restitution, Wendy J. Gordon
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.