Law Commons^™

Extraterritoriality And Multiterritorality In Copyright Infringement, Jane C. Ginsburg

Faculty Scholarship

Extraterritorial application of U.S. law, as Professor Curtis Bradley demonstrates, is highly suspect, if not illegitimate, unless clearly authorized by Congress. The apparently “extraterritorial” character of much recent copyright litigation has led some U.S. courts to dismiss for lack of subject matter jurisdiction or on grounds of forum non conveniens when the cases present offshore points of attachment. As copyright commerce becomes increasingly international, some of these dismissals may be unwarranted. They also may be incorrect in their refusal to apply U.S. law or retain U.S. jurisdiction over the parties: the decisions may be too quick to perceive "extra"-territoriality in …

Deregulatory Takings, Breach Of The Regulatory Contract, And The Telecommunications Act Of 1996, William J. Baumol, Thomas W. Merrill

Faculty Scholarship

Professors Baumol and Merrill reply to Deregulatory Takings and Breach of the Regulatory Contract, published last year in this Review, which argued that the price incumbents may charge potential competitors for bottleneck facilities under the Telecommunications Act of 1996 should be based not on forward-looking costs but on historical costs. Professors Baumol and Merrill contend that pricing with reference to historical costs would depart from the principles called for by economic analysis for efficient pricing and they further argue that neither the Takings Clause nor the regulatory contract precludes the use of forward-looking costs in setting prices. If a taking …

Copyright, Common Law, And Sui Generis Protection Of Databases In The United States And Abroad, Jane C. Ginsburg

Faculty Scholarship

What protection remains for compilations of information, particularly digital databases, since the United States Supreme Court swept away "sweat copyright" in its 1991 Feist decision? "Thin" copyright protection is still available, but it covers only the original contributions (if any) that the compiler brings to the public domain information. Moreover, Feist makes clear that padding the compilation with original added value will not flesh out the skeletal figure beneath: the information, stripped of selection, arrangement, or other copyrightable frills, remains free for the taking.

If copyright is unavailing, contract is appearing more promising, as mass-market, "shrinkwrap" and "click-on" licenses gain …

Copyright Without Borders? Choice Of Forum And Choice Of Law For Copyright Infringement In Cyberspace, Jane C. Ginsburg

Faculty Scholarship

The disjunction between territorial treatment of copyright claims and the ubiquity of cyberspace has led some commentators to urge abandonment of landlocked notions of judicial and legislative competence. Since digital communications resist grounding in particular fora, or governance by individual national laws, these writers contend it would be best to devise a cyberian legal system that would supply cyber-specific substantive copyright law, and/ or virtual dispute settlers whose competence – and whose determinations – would transcend national borders.

My analysis will be more earthbound. This is not to belittle the important ongoing efforts to achieve international harmony of substantive copyright …

Authors And Users In Copyright, Jane C. Ginsburg

Faculty Scholarship

It has become fashionable, among some thinkers and activists in copyright and related fields, to disparage or to deplore copyright protection. For one drawn to copyright both for its intellectual fascination and its inspiring goals of fostering creativity and protecting authorship, I am distressed to learn that I am among the defenders of a fallen faith, that authors' rights are misguided (if not pernicious) impediments to technological progress, and, worst of all, that copyright blocks freedom of thought and speech in cyberspace. Digital agendas notwithstanding, some of this derogatory discourse is not new; infringers have long found eloquent, if somewhat …