Law Commons^™

Deconstructing The Blueprint For Infringement: Remedying Flawed Interpretations Of The § 120(A) Exception To Architecture Copyrights, Margalit Zimand

Kernochan Center for Law, Media, and the Arts

Drafting the Architectural Works Copyright Protection Act of 1990 (“AWCPA”) consisted of a bizarre hodgepodge of considerations. Ostensibly, the goal of the Act was to bring the United States unquestionably into compliance with the Berne Convention for the Protection of Literary and Artistic Works, which the United States had just recently joined, with as minimal an impact on U.S. law as possible. In reality, this goal — itself not without built-in tensions — was but one of several competing forces at play in the drafting process. The other forces generally fell into three camps. There were the proponents of preserving …

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 …

The Past, Present, And Future Of The Restatement Of Copyright, Shyamkrishna Balganesh, Jane C. Ginsburg

Faculty Scholarship

It is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright (hereinafter “Restatement”) has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.”1 Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push the …

Unspoken Criticism: Audiovisual Forms Of Critique As Fair Use, Alec Fisher

Kernochan Center for Law, Media, and the Arts

This Note argues that the traditional legal framework for analyzing a work of alleged criticism as fair use is particularly constraining for YouTube reaction videos and other audiovisual forms of criticism that largely critique or comment on an original work in a non-spoken, visual manner. It discusses the emphasis that the current fair use jurisprudence places on spoken and written critical elements when undertaking a fair use analysis of a work of criticism, then advocates for a new conception of fair use criticism that incorporates film-specific analytical techniques and concepts when analyzing the critical elements of online audiovisual works. Part …

Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task …

Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg

Faculty Scholarship

This Comment addresses minimum and 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. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

There And Back: Vindicating The Listener's Interests In Targeted Advertising In The Internet Information Economy, Caitlin Jokubaitis

Kernochan Center for Law, Media, and the Arts

Targeted advertising — the process by which advertisers direct their message at a specific demographic — is neither a recent1 nor an irrational phenomenon.2 One industry executive has proclaimed it the “rare win for everyone” because it serves producers, advertisers, and consumers alike. It should be no surprise that the Information sector of the online economy — particularly new and social media platforms with robust access to consumer data — has structured revenue streams to benefit from targeted advertising. These platforms generate “substantially all of [their] revenue from advertising,” which in turn rely on active user engagement.

The Internet Information …

Why A Data Disclosure Law Is (Likely) Unconstitutional, Max I. Fiest

Kernochan Center for Law, Media, and the Arts

Social media platforms have changed the very structure of communication. These platforms exert significant influence over how we get our news, how we form and join political movements, and how we connect with friends and family. But social media platforms are black boxes. Moderation algorithms are opaque--even to the platforms themselves — and attempts by third parties to research these algorithms are often frustrated. Because platforms withhold data necessary for public interest research, Congress might step in and mandate data access for certain researchers and journalists. I conclude that any such effort would (likely) be unconstitutional under the First Amendment. …

Foreign Contracts And U.S. Copyright Termination Rights: What Law Applies? – Comment, Richard Arnold, Jane C. Ginsburg

Faculty Scholarship

The U.S. Copyright Act gives authors the right to terminate assignments of copyrights in works other than works for hire executed on or after 1 January 1978 after 35 years, and to do so notwithstanding any agreement to the contrary. Given that agreements which are subject to the laws of other countries can assign U.S. copyrights, and purport to do so in perpetuity, U.S. law’s preclusion of agreements contrary to the author’s right to exercise her termination right can give rise to a difficult choice of law issue. Two recent cases which came before courts in the U.S. and England …

Do We Need A New Conception Of Authorship?, Shyamkrishna Balganesh

Faculty Scholarship

Thank you to the organizers for having me. I’m delighted to be here. I’m going to take a step away from conceptual art, and go a little bit into history and a little bit into doctrine – and do the usual law professor thing. We law professors like to say that one of the great things about the job is that we get to overrule the Supreme Court ten thousand times a day, but the bad thing about the job is no one cares. And so, I’m going to try and make this such that you care.

Here’s the core …

Copyright Protection For Applied Art And Works Of Artistic Craftsmanship After Star Athletica, Jane C. Ginsburg

Faculty Scholarship

As the very first session proclaimed, the Star Athletica case has not been a model of total clarity on the Supreme Court’s part. I’m going to explore that proposition. I will go through some basic elements of the copyright statute, and will then apply those rules to several examples. The Copyright Act sets out the category of pictorial, graphic, and sculptural (“PGS”) works, whose statutory definition includes applied art. That was the subject matter at issue in Star Athletica. The statute also provides that PGS works “shall include works of artistic craftsmanship insofar as their form but not their mechanical …

Embedding Content Or Interring Copyright: Does The Internet Need The "Server Rule"?, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

The “server rule” holds that online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work. As a result, the rule shields a vast array of online activities from claims of direct copyright infringement, effectively exempting those activities from the reach of the Copyright Act. While the server rule has enjoyed relatively consistent adherence since its adoption in 2007, some courts have recently suggested a departure from that precedent, noting the doctrinal and statutory inconsistencies underlying …

"Anything Goes": Regulating The Conduct Of Money-Bundling Broadway Co-Producers, David Manella

Kernochan Center for Law, Media, and the Arts

This Note will analyze industry concerns relating to the practice of granting above-the-title producer credit to individuals solely for contributing or bundling a share of a production’s capitalization, specifically by asking whether moneybundling Broadway co-producers are acting as unregistered broker-dealers in violation of applicable Security Exchange Commission (“SEC”) registration requirements. In Section I of this Note, I provide a history of Broadway producing models, so as to understand how today’s dominant model developed. In Section II, I unpack that model by describing the structure of theatrical investment vehicles and identifying the different types of Broadway producers. In Sections III and …

Foreign Authors' Enforcement Of U.S. Reversion Rights, Jane C. Ginsburg

Faculty Scholarship

Thank you to all of the participants, and especially the first two panelists, for setting one part of the scene. I am going to talk about the United States’ termination right and some Berne and private international law consequences or implications of the termination right.

First, however, I’d like to advert to the two goals Rebecca Giblin referenced in her talk. One is remuneration, the other is dissemination. Author-protective laws in other countries also address dissemination. As Séverine Dusollier mentioned, a number of national laws include an obligation to exploit the work: if the publisher does not exploit the work, …

Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to …

Creative Sparks: Works Of Nature, Selection, And The Human Author, Neal F. Burstyn

Kernochan Center for Law, Media, and the Arts

It is now common knowledge that if you put a bunch of monkeys in a room with a typewriter, they will eventually reproduce the works of Shakespeare. But according to the United States Copyright Office, if you give that same group of monkeys a camera, you do not get copyright in any pictures they may happen to take. In 2011, British wildlife photographer David Slater was in Indonesia when a group of crested black macaques began playing with his camera equipment and snapped some pictures, one of which went viral and proved temporarily profitable for Slater. The popular image, known …

"Courts Have Twisted Themselves Into Knots": Us Copyright Protection For Applied Art, Jane C. Ginsburg

Faculty Scholarship

In copyright law, the marriage of beauty and utility often proves fraught. Domestic and international law makers have struggled to determine whether, and to what extent, copyright should cover works that are both artistic and functional. The U.S. Copyright Act protects a work of applied art "only if, and only to the extent that, its design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." While the policy goal to separate the aesthetic from the functional is clear, courts' application of the statutory "separability" …

We (Still) Need To Talk About Aereo: New Controversies And Unresolved Questions After The Supreme Court's Decision, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Recent judicial interpretations of U.S. copyright law have prompted businesses to design technologies in ways that enable the making and transmission of copies of works to consumers while falling outside the scope of the owner's exclusive rights. The archetypal example is Aereo Inc.'s system for providing online access to broadcast television, which the Supreme Court has now ruled results in infringing public performances by Aereo.

In previous work we urged the Court to develop a principled reading of the transmit clause focusing on the particular use rather than on the technical architecture of the delivery service (Giblin & Ginsburg, "We …

Robots, Pirates, And The Rise Of The Automated Takedown Regime: Using The Dmca To Fight Piracy And Protect End Users, Zoe Carpou

Kernochan Center for Law, Media, and the Arts

This very second, a battle between robots and pirates is being waged online. Pirates are stealing content from copyright holders and uploading it to various websites. Robots are crawling the Web, searching for pirated content. When a robot encounters pirated content, it is programmed to attack — either by reporting back to the copyright holder, or by going straight to the source and requesting that the material be removed. Sometimes the pirates fight back, re-posting the content online soon after it is taken down or posting newly infringing content. The cycle continues, and the battle rages on.

Generally speaking, “robots” …

Is Music The Next Ebooks? An Antitrust Analysis Of Apple's Conduct In The Music Industry, Alexa Klebanow, Tim Wu

Faculty Scholarship

Over the last twenty years, two waves of technological change have transformed the way people purchase and listen to music. First, digital downloads displaced physical sales of albums. More recently, digital downloads, once the primary way to gain access to digital music, have come to be challenged by streaming services. Apple, a leader in the digital download market with iTunes, has engaged in various strategies to meet the challenge. This Note specifically focuses on two types of conduct: Apple’s pressure on labels to enter into exclusive license agreements, also known as windowing, and Apple’s pressure on the market to abandon …

Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli

Faculty Scholarship

Copyright generally vests in the author, the human creator of the work. But because, at least until recently, most authors have been ill-equipped to commercialize and disseminate their works on their own, the author has granted rights to intermediaries to market her works. Since most authors are the weaker parties to publishing, production, or distribution contracts, the resulting deal may favor the interests of the intermediary to the detriment of the author’s interests. Many national copyright laws have introduced a variety of corrective measures, from the very first copyright act, the 1710 British Statute of Anne, which instituted the author’s …

Taming The "Frankenstein Monster": Copyright Claim Compatibility With The Class Action Mechanism, Renee G. Stern

Kernochan Center for Law, Media, and the Arts

In a 2013 opinion denying class certification to a putative class of copyright holders in Football Association Premier League Ltd. v. YouTube, Inc., Judge Stanton of the Southern District of New York wrote:

Generally speaking, copyright claims are poor candidates for class-action treatment. They have superficial similarities .... Thus, accumulation of all the copyright claims, and claimants, into one action will not simplify or unify the process of their resolution, but multiply its difficulties over the normal one-by-one adjudications of copyright cases.

Judge Stanton went on to characterize the case as a “Frankenstein monster posing as a class action” …

The Demise Of The Copyright Act In The Digital Realm: Re-Engineering Digital Delivery Models To Circumvent Copyright Liability After Aereo, Megan Larkin

Kernochan Center for Law, Media, and the Arts

This Note argues that the Second Circuit’s interpretation of the Transmit Clause eviscerates the meaning of “public” within the digital realm and has created a blueprint for business models to completely circumvent copyright liability. Part I provides the background of the public performance right, focusing on the role that technology has played in the addition of the Transmit Clause and on relevant judicial interpretation. Part II argues that the Second Circuit’s interpretation of the Transmit Clause was improper; it tests the court’s blueprint by re-engineering past business models to show how they could have evaded liability. Part III proposes that, …

Fragmented Literal Similarity In The Ninth Circuit: Dealing With Fragmented Takings Of Jazz And Experimental Music, Michael Zaken

Kernochan Center for Law, Media, and the Arts

Newcomers to jazz often ask: Is it true that jazz is all improvised? Somehow the casual and romantic notion that jazz is generated in an entirely spontaneous manner has become deeply rooted in our society.

The notator of any jazz solo, or blues, has no chance of capturing what in effect are the most important elements of the music.... A printed musical example of an Armstrong solo, or of a Thelonious Monk solo, tells us almost nothing except the futility of formal musicology when dealing with jazz.

The difficulty of applying standard infringement measures to musical compositions in a way …

Constitutional Hazard:The California Resale Royalty Act And The Futility Of State-Level Implementation Of Droit De Suite Legislation, Nithin Kumar

Kernochan Center for Law, Media, and the Arts

Répétition d’un Ballet, the famous painting by French artist Edgar Degas, sold for $401,000 in 1965. The jubilant seller bragged that Degas originally asked a mere $100 for the painting. In his early career, celebrated American artist Norman Rockwell sold original works like Homecoming Marine and Breaking Home Ties for a few hundred dollars each. In the last decade, these paintings were resold for $9.2 million and $15.4 million at Sotheby’s auctions, but the Rockwell estate received nothing in these transactions. Over the centuries, great wealth in the arts has rarely translated into great wealth for the artist. Since …

You Can’T Go Home Again: The Righthaven Cases And Copyright Trolling On The Internet, Ian Polonsky

Kernochan Center for Law, Media, and the Arts

In the Norwegian folktale Three Billy Goats Gruff, three goats seeking to get fat on the greener pastures of a distant hillside were stopped at the foot of a bridge by a “great ugly troll, with eyes as big as saucers, and a nose as long as a poker.” The troll allowed the first two goats to pass when they assured him of a larger goat to come. Unfortunately, the troll bit off more than he could chew: the third goat was larger than the troll and not the least bit intimidated. The goat launched himself at the troll …

Proto-Property In Literary And Artistic Works: Sixteenth-Century Papal Printing Privileges, Jane C. Ginsburg

Faculty Scholarship

This Study endeavors to reconstruct the Vatican’s precursor system of copyright, and the author’s place in it, inferred from examination of over five hundred privileges and petitions and related documents – almost all unpublished – in the Vatican Secret Archives. The typical account of the precopyright world of printing privileges, particularly in Venice, France and England, portrays a system primarily designed to promote investment in the material and labor of producing and disseminating books; protecting or rewarding authorship was at most an ancillary objective.

The sixteenth-century Papal privileges found in the Archives, however, prompt some rethinking of that story because …

The Legal Landscape: Session 1, Laura Gasaway, Jane C. Ginsburg, Maria Pallante, Shira Perlmutter, Richard Rudick

Faculty Scholarship

Good morning everybody, and thanks for coming. I’m June Besek, the Executive Director of the Kernochan Center for Law, Media and the Arts, and we are especially grateful to those of you who planned to come in November, and when that was postponed still came today. We really feel very grateful to you. This symposium is on copyright exceptions for libraries and section 108 reform, and we are doing this in cooperation with the U.S. Copyright Office. I thank Maria, Chris and Karen for all the work that they put into this as well. I want to thank our sponsors …

The (Im)Possibility Of "Standard Technical Measures" For Ugc Websites, Laura G. Gallo

Kernochan Center for Law, Media, and the Arts

In today’s highly litigious legal landscape, one might doubt that there could ever be an “open, fair, voluntary” agreement between copyright owners and service providers to police infringement. Congress nevertheless envisioned such a consensus when it developed § (i) of the Digital Millennium Copyright Act (DMCA): “Conditions for [Safe Harbor] Eligibility.” An often-overlooked provision of the DMCA, § 512(i) directs right holders and Internet service providers to work together and agree on “standard technical measures” to “identify or protect copyrighted works.” In addition to being the product of consensus, these measures must be “available ... on reasonable and nondiscriminatory terms” …