Law Commons^™

Performance Anxiety: The Internet And Copyright's Vanishing Performance/Distribution Distinction, Jonah M. Knobler

Jonah M. Knobler

This article attempts to answer two related questions on the subject of copyright law in the Internet age: First: Under present U.S. copyright law, does the delivery of a digital music file over the Internet as a “download” necessarily implicate the copyright holder’s right of public performance, above and beyond the obviously implicated rights of distribution and reproduction, as the music industry claims it does? This article examines the recent decision in United States v. ASCAP (S.D.N.Y. 2007), which held that it does not. The article also independently applies the major techniques of statutory interpretation to the relevant portions of …

The Freedom To Copy: Copyright, Creation And Context, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Although much separates them musically, George Harrison and Michael Bolton share a common legal fate. Both have been held liable in copyright infringement cases in which a court articulated theories of liability based on subconscious infringement. This Article discusses how decisions in the Bolton, Harrison, and other copyright infringement cases reflect a common failing. Such decisions highlight the incomplete nature of the theories of creativity and creation processes in copyright doctrine. After discussing current approaches to questions of creation, this Article suggests ways in which copyright theory can better incorporate a contextualized understanding of creativity and creation processes. Creativity in …

Trademark Extortion: The End Of Trademark Law, Kenneth L. Port

Kenneth L. Port

Trademark litigation in America today is undergoing a profound change. Based on a review of all trademark cases reported since the Lanham Act took effect, this article concludes that this profound change is due to 鍍rademark extortion,・the use of strike suits and the like to deter market entrants. All 7,500 reported trademark decisions between 1947 and 2005 were read. Of those, 2,659 were truly substantive cases that terminated a trademark law suit. The claimant of a trademark right prevailed only 51% of the time. They prevailed in getting an injunction in only 55% of those cases demanding one. Only 5.5% …

Infringement & The International Reach Of U.S. Patent Law, Moin A. Yahya, Cameron Hutchison

Moin A Yahya

American Patent Law, through both judicial and legislative efforts, has evolved from a strict territorial based set of laws asserting jurisdiction only over those infringements taking place on American soil to a more expansive set of rules asserting jurisdiction over any event that may harm patent holders in the United States regardless of where the infringement is taking place. This, we argue, is contrary to the original purpose of Patent Law and inconsistent with American obligations under the International Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). We argue for a return to territorial based rules of jurisdiction. Such a …

The Supremacy Of Techno-Governance: Privatization Of Digital Content And Consumer Protection In The Globalized Information Society, Nicola Lucchi

Nicola Lucchi

The article aims to describe the role of technology and contract in regulating access to digital content deregulating intellectual property law monopoly. In particular it argues that the anti-circumvention provisions for technological protection measures and digital rights management systems enacted in the United States and in Europe compromise the consumer’s capacity to exercise legitimate rights, such as the private use exemption, by giving content owners extralegal protection for their works. It also analyses how these acts have caused an inappropriate delegation of governmental decision making to a non-governmental entity with a consequent privatization of the government’s role in protecting intellectual …

Holdup, Royalty Stacking, And The Presumption Of Injunctive Relief For Patent Infringement: A Reply To Lemley And Shapiro, J. Gregory Sidak

J. Gregory Sidak

Professors Mark Lemley and Carl Shapiro have presented a theoretical argument for weakening the presumption of injunctive relief in patent infringement cases. In this article, I evaluate the Lemley-Shapiro theoretical model of “patent holdup.” I dispute its main finding that the threat of an injunction inflates royalty payments in many cases relative to a hypothetical benchmark royalty rate. I also dispute the Lemley-Shapiro policy prescriptions for patent law reform, which would remove the presumption of injunctive relief in cases where the patented product is a component of a larger product or the patentee is a non-practicing entity. I conclude that …

Is Apple Playing Fair? Navigating The Ipod Fairplay Drm Controversy, Nicola F. Sharpe, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

On April 2, 2007, Apple Inc. and EMI Music held a joint press conference in London that may be the harbinger of significant changes in the digital music arena. This press conference, whose attendees included EMI Group CEO Eric Nicoli and Apple CEO Steve Jobs, unfolded in an environment of significant technological and commercial changes in the music industry. The shift to the digital era has been a turbulent one for many players in the music industry, particularly as a result of the widespread distribution of unauthorized digital music files and the concurrent significant decline in record industry sales. The …

Benefiting Society And Children Through Violent Media: As Evidenced By First Amendment Protection For Violent Video Games, Austin Nowakowski

Austin James Nowakowski

This article discusses the constitutional, psychological, and societal reasons for why the courts have never upheld any laws censoring violent video games.

Culture As Property: Intellectual Property, Local Norms And Global Rights, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Intellectual property frameworks today reflect an increasing emphasis on framing knowledge and culture within a property rights paradigm. This tendency is evident in all sides of current debates about global intellectual property frameworks. Intellectual property frameworks have historically reflected accommodation and balance between local and global influences as well as private and public interests. An ethos of propertization strains both balances. The imbalance between the local and global and public and private is exemplified in current treatment of local knowledge under global intellectual property frameworks. This article examines the tensions between local and global norms, legal and otherwise, and private …

Fixing Fair Use, Michael W. Carroll

Michael W. Carroll

The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another's copyrighted expression under certain circumstances. The doctrine's extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another's copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a …

Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll

Michael W. Carroll

In eBay v. MercExchange, the Supreme Court correctly rejected a one-size-fits-all approach to patent injunctions. However, the Court's opinion does not fully recognize that the problem of uniformity in patent law is more general and that this problem cannot be solved through case-by-case analysis. This Essay provides a field guide for implementing eBay using functional analysis and insights from a uniformity-cost framework developed more fully in prior work. While there can be no general rule governing equitable relief in patent cases, the traditional four factor analysis for injunctive relief should lead the cases to cluster around certain patterns that often …

Rethinking Contractual Restrictions On Fair Use: Preemption And The Structure Of Copyright Policymaking, Viva R. Moffat

Viva R. Moffat

Rethinking Contractual Restrictions on Fair Use: Preemption and the Structure of Copyright Policymaking

Viva R. Moffat

Abstract

Online contracts proliferate and govern nearly every commercial transaction and most of the ways in which the modern consumer interacts with the world. Issues surrounding “contracting around” the Copyright Act have been simmering for years. In this article, I survey numerous online contracts, and I conclude that these issues have only become more acute: nearly every website and every good or service sold online comes with a contract attached, and virtually every one of those contracts contains a limitation on fair use.

Most …

Copyright Lawmaking Authority: An (Inter)Nationalist Perspective On The Treaty Clause (Symposium), Graeme B. Dinwoodie

Graeme B. Dinwoodie

This contribution to a symposium on Copyright and The Constitution considers whether the Treaty Clause provides an alternative source of copyright lawmaking authority with respect to enactments impermissible under the Copyright Clause. Existing literature suggests three paradigmatic positions on the question. First, some scholars view the Treaty Clause as conferring a power whose content is wholly subservient to the limits of the Copyright Clause. A second group of scholars sees the Treaty Clause as offering an alternative lawmaking authority, but one that is substantially limited by the internal limits of the Treaty Clause. Finally, some commentators and litigants have read …

Introducing A Take-Down For Trade Secrets On The Internet, Elizabeth A. Rowe

Elizabeth A Rowe

When a trade secret owner discovers its trade secrets have been posted on the Internet, there is currently no legislative mechanism by which the owner can request that the information be taken down. The only remedy to effectuate removal of the material is to obtain a court order, usually through a temporary restraining order or a preliminary injunction. In an earlier article I explored and analyzed the tremendous danger to trade secrets that have been posted on the Internet. Indeed, the trade secret status is most often lost forever. Accordingly, upon discovering a posting of secret information, trade secret owners …

Copyright And Borrowing, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Borrowing is a norm in much cultural production that should be better incorporated into copyright doctrine. Copyright doctrine governs both the creation and distribution of cultural works, such as literary texts and musical works. Consideration of borrowing and copyright largely relates to the creation side of copyright. A number of terms may be used to illustrate the ways in which new cultural texts relate to existing cultural texts. Further, a significant commentary exists in fields such as literary theory and musicology that discusses and analyzes the significance of such relationships. Terms such as borrowing, self-borrowing, transformative imitation, quotation, allusion, homage, …

Diversifying Without Discriminating: Complying With The Mandates Of The Trips Agreement (With R. Dreyfuss), Graeme B. Dinwoodie

Graeme B. Dinwoodie

Although the technological community was once fairly united in its needs from the patent system, the recent debate over patent reform has made it clear that this is no longer the case. Rather, it has become increasingly difficult to believe that a one–size–fits–all approach to patent law can survive. In this brief contribution to a symposium tackling Diversity in Innovation Policy, we consider the ways in which intellectual property obligations, most notably the TRIPS Agreement, circumscribe the ability of national lawmakers to tailor patent protection to reflect the concerns of different industries. In particular, we propose that TRIPS art. 27, …

Decoding Cyberproperty, Francis G. Lastowka

Greg Lastowka

This article examines recent developments in both the doctrine and theory of legal cyberproperty rights. The first part of this article looks primarily at two seminal cases that might be considered bookends to the story of cyberproperty: Thrifty-Tel, Inc. v. Bezenek and Intel v. Hamidi. The second part of this article challenges two assumptions that act as theoretical and rhetorical engines driving arguments for cyberproperty. The first is the assumption that legal prohibitions against interactions with privately owned computing machinery are analogous, from a standpoint of law and policy, to traditional rights of exclusion from the use of or entry …