Law Commons^™

Comments On Preliminary Draft 8 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

PD8 represents a great deal of labor, for which the Reporters deserve recognition. As detailed below, however, PD8’s occasional departures from or omissions of statutory text may not only be misleading or confusing, but – as has been the case with prior drafts – often have the result, if not the purpose, of whittling down the scope of copyright protection. In addition to identifying those instances and explaining their consequences, the following comments will suggest clarifications to some of the Comments and Illustrations.

United States Response To Questionnaire, Philippa Loengard, Anne Diamond, Lily Henderson, Jenica Wang

Kernochan Center for Law, Media, and the Arts

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

The Last Line Of Defense: Addressing Section 512(G)’S Dwindling Capacity To Protect Educational Fair Users On The Internet, Gersham Johnson

Kernochan Center for Law, Media, and the Arts

The COVID-19 pandemic has rapidly transformed education from one of the least digitized sectors in the U.S. economy to a largely online phenomenon, with up to 93% of households with school-age children relying on distance learning. The value of online educational opportunities has extended beyond traditional purveyors of education as well, with online service providers (OSPs) like YouTube reporting an increase in average daily views for educational videos produced by subscribers (“users”).

The rise of user-generated content in online education (“educational content”) is merely part of a larger sea change as more content is uploaded to OSPs than ever before. …

The Case For The Ccb: A Defense Of The Constitutionality Of The Copyright Claims Board, Adam Vischio

Kernochan Center for Law, Media, and the Arts

Copyright litigation is expensive. Since copyright is federal law, disputes must be heard in federal court. Federal litigation can be prohibitively costly for creators bringing small claims, essentially leaving them with a right without a remedy against infringement of their work. Congress sought to alleviate this financial burden in 2020 when it passed the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act, thus creating the Copyright Claims Board (“CCB”) to adjudicate small copyright disputes.

Opponents raised constitutional concerns about the CCB throughout the legislative process. The concerns included the fact that the CCB officers would wield unreviewable power and that Congress …

Proving Copying, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …

Of Autonomy, Sacred Rights, And Personal Marks, Shyamkrishna Balganesh

Faculty Scholarship

This Response examines three different senses in which the idea of autonomy might operate within trademark law’s rules relating to personal marks (i.e., marks that identity an individual) and shows that each of them is critically incomplete or too weak to independently sustain the justificatory burden for the domain. It then examines the worrisome possibility that courts’ allusions to autonomy here are little more than a trope for other considerations. It finally looks at how a genuine commitment to autonomy might be integrated into the principally market-driven framework of trademark law.

The Genius Of Common-Law Intellectual Property, Shyamkrishna Balganesh

Faculty Scholarship

Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common-law intellectual property. In it, we see his attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common-law intellectual property refers to different judge-made causes of action that create forms of exclusive rights and privileges in intangibles, interferences that are then rendered enforceable through private liability. In this essay, I examine Epstein’s writing on two such doctrines, hot-news misappropriation and cybertrespass, which embrace several important ideas to which modern discussions of intellectual property would …

Intellectual Property, Independent Creation, And The Lockean Commons, Mala Chatterjee

Faculty Scholarship

Copyrights and patents are differently structured intellectual property rights in different kinds of entities. Nonetheless, they are widely regarded by U.S. scholars as having the same theoretical underpinnings. Though scholars have sought to connect philosophical theories of property to intellectual property, with a particular interest in the labor theory of John Locke, these explorations have not sufficiently probed copyrights’ and patents’ doctrinal differences or their philosophical implications for the theories explored. This Article argues that a defining difference between copyrights and patents has normative significance for the framework of Lockean property theory: namely, that copyright law treats independent creation as …

The Institutionalist Turn In Copyright, Shyamkrishna Balganesh

Faculty Scholarship

The institutionalist turn refers to the reality that over the last decade and a half, the Court’s copyright jurisprudence has come to focus less and less on directly resolving substantive issues within the landscape of copyright doctrine. It has instead become a principal site of debate and disagreement over issues that have a direct bearing on the role, competence, and legitimacy of the Court within the copyright system. The institutionalist turn does not imply that the Court’s decisions have altogether avoided engaging substantive copyright issues; merely that its engagement of copyright doctrine has come to be intertwined with — and …

Floors And Ceilings In International Copyright Treaties: Berne/Trips/Wct Minima And Maxima, Jane C. Ginsburg

Faculty Scholarship

This paper addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by …

Copyright, Creativity, Big Media And Cultural Value: Incorporating The Author, Jane C. Ginsburg

Faculty Scholarship

Copyright, Creativity, Big Media and Cultural Value is a wide-ranging work of immense erudition and archival research, combining several historical studies of the ‘incorporation’ of the author in different sectors of the ‘creative industries’. The book’s subtitle, ‘Incorporating the Author’, astutely encompasses multiple meanings, whose implications the book works through. These include the author as an initiating participant in a larger economic structure (Chapter 3 (print publishing)). But also, the author as a bit player enveloped by a larger economic structure (Chapter 5 (film industry)). And the author (or performer) as an autonomous object of economic value (Chapters …

Comments On Council Draft 6 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

We appreciate the Reporters’ incorporation of some of our comments on recent drafts. There remain, however, certain flaws in CD6 that should be addressed. We explain the issues, below.