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Articles 1 - 12 of 12
Full-Text Articles in Law
Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet
Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet
Faculty Scholarship
To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …
There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco
There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco
Faculty Scholarship
Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …
Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Chris Dove, Ernest A. Young
Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Chris Dove, Ernest A. Young
Faculty Scholarship
No abstract provided.
Authorship And The Boundaries Of Copyright: Ideas, Expressions, And Functions In Yoga, Choreography, And Other Works, Christopher Buccafusco
Authorship And The Boundaries Of Copyright: Ideas, Expressions, And Functions In Yoga, Choreography, And Other Works, Christopher Buccafusco
Faculty Scholarship
This essay uses the Ninth Circuit’s opinion in Bikram’s Yoga College of India v. Evolation Yoga as an opportunity to analyze the nature of copyrightable authorship and the mechanisms that the law uses to screen out uncopyrightable content from otherwise copyrightable works. I argue that although the court likely reached the right result in Bikram, it did so in a confused and poorly supported manner. The court misunderstood the nature of the idea/expression distinction, the role of section 102(b), and the appropriate mechanism for screening out functional features of works. These aspects of the court’s opinion are widespread in copyright …
The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, David Fagundes
The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, David Fagundes
Faculty Scholarship
Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no economic harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-economic harms tend to stifle rather than encourage creative production. While much scholarship has critiqued copyright’s economic theory from the perspective of authors’ incentives to create, ours is the first to explore this issue from the perspective of owners’ motivations to sue for infringement. We turn to moral psychology, and in particular to moral …
Promoting Progress With Fair Use, Joshua N. Mitchell
Promoting Progress With Fair Use, Joshua N. Mitchell
Duke Law Journal
The Intellectual Property (IP) Clause provides that Congress has the power "to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In the realm of copyright, Congress and the courts have interpreted the clause as granting Congress a power not to promote progress but to establish limited IP monopolies. To return to an understanding of the IP power better grounded in the constitutional text, Congress and the courts should ensure that any IP enactment "promote[s] ... Progress" by considering whether it improves the …
Cybersieves, Derek E. Bambauer
Cybersieves, Derek E. Bambauer
Duke Law Journal
This Article offers a process-based method to assess Internet censorship that is compatible with different value sets about what content should be blocked. Whereas China's Internet censorship receives considerable attention, censorship in the United States and other democratic countries is largely ignored. The Internet is increasingly fragmented by nations' different value judgments about what content is unacceptable. Countries differ not in their intent to censor material-from political dissent in Iran to copyrighted songs in America-but in the content they target, how precisely they block it, and how involved their citizens are in these choices. Previous scholars have analyzed Internet censorship …
Creative Reading, Jessica Litman
Creative Reading, Jessica Litman
Law and Contemporary Problems
Litman argues that by ignoring the central importance of readers, listeners, viewers, and players in the copyright scheme, the essential policy question in determining whether a use of copyrighted material should be lawful is the way the use looks from the viewpoint of the copyright owner is conceded. The comfort level supplied by an implied license analysis is emblematic of the failure to pay enough attention to reader interests and there is need to take another look at copyright, keeping the significance of readers, listeners, and viewers in mind. Furthermore, failure to pay sufficient attention to the interests of readers, …
Should A Licensing Market Require Licensing?, Mark A. Lemley
Should A Licensing Market Require Licensing?, Mark A. Lemley
Law and Contemporary Problems
Many circumstances fair use should separate the idea that the copyright owner should be compensated for a use from the idea that the copyright owner should be able to control that use. The licensing-market cases provide a perfect vehicle for dividing rights but if a use is considered unfair because the copyright owner could have gotten paid to permit that use, the argument may or may not justify compensating the copyright owner for the loss, but it does not justify giving the copyright owner control over the defendant's use. Here, Lemley explains the development of the licensing-market rationale, critiques of …
Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet
Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet
Law and Contemporary Problems
Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but know less about the choices people make about copyright on a daily basis, especially when they are not working. Here, Tushnet examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Among other things, she discusses some differences between fair use and fan practices, focused around attribution as an alternative …
The Conditions Of The Judicial And Administrative Protection Of Copyright In China, Wu Shulin
The Conditions Of The Judicial And Administrative Protection Of Copyright In China, Wu Shulin
Duke Journal of Comparative & International Law
No abstract provided.
505 And All That—The Defendant’S Dilemma, Peter Jaszi
505 And All That—The Defendant’S Dilemma, Peter Jaszi
Law and Contemporary Problems
Section 505 of the Copyright Act of 1909 was carried forth, without substantive change, into the Copyright Act of 1976. An assessment of section 505 is presented.