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Full-Text Articles in Law
The Racial Politics Of Fair Use Fetishism, Anjali Vats
The Racial Politics Of Fair Use Fetishism, Anjali Vats
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This short essay argues that the sometimes fetishistic desire on the part of progressive intellectual property scholars to defend fair use is at odds with racial justice. Through a rereading of landmark fair use cases using tools drawing from Critical Race Intellectual Property (“CRTIP”), it contends that scholars, lawyers, judges, practitioners, and activists would be well served by focusing on how fair use remains grounded in whiteness as (intellectual) property. It argues for doing so by rethinking the purpose of the Copyright Act of 1976 to be inclusive of Black, Brown, and Indigenous authors.
What's News?, Michael J. Madison
What's News?, Michael J. Madison
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This review of Will Slauter’s Who Owns the News? (2019) highlights three ways in which its history of copyright in news tracks and illustrates key themes in the history of cultural policy. One is how copyright law and journalistic style co-evolved, confirming the attributes of modern journalism itself and deploying style as a device for defining the scope of news producers’ legitimate copyright claims. In the news, as elsewhere in copyright, exclusivity and genre largely co-created each other. Two is how the labor and skill of individual human producers of knowledge are often hidden amid prominent debates about relationships between …
Critical Race Ip, Anjali Vats, Deidre A. Keller
Critical Race Ip, Anjali Vats, Deidre A. Keller
Articles
In this Article, written on the heels of Race IP 2017, a conference we co-organized with Amit Basole and Jessica Silbey, we propose and articulate a theoretical framework for an interdisciplinary movement that we call Critical Race Intellectual Property (Critical Race IP). Specifically, we argue that given trends toward maximalist intellectual property policy, it is now more important than ever to study the racial investments and implications of the laws of copyright, trademark, patent, right of publicity, trade secret, and unfair competition in a manner that draws upon Critical Race Theory (CRT). Situating our argument in a historical context, we …
Ip Things As Boundary Objects: The Case Of The Copyright Work, Michael J. Madison
Ip Things As Boundary Objects: The Case Of The Copyright Work, Michael J. Madison
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My goal is to explore the meanings and functions of the objects of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. This paper takes up the example of the copyright work.
It is usually argued that the central challenge in understanding the work is to develop a sensible method for appreciating its boundaries. Those boundaries, conventionally understood as the metaphorical "metes and bounds" of the work, might be established by deferring to the intention of the author, or by searching for authorship (creativity or originality) …
Centering Education In The Next Great Copyright Act: A Response To Professor Jaszi, Deidre A. Keller, Anjali Vats
Centering Education In The Next Great Copyright Act: A Response To Professor Jaszi, Deidre A. Keller, Anjali Vats
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This article engages the recent Georgia State litigation regarding uses copyrighted content by teachers and seeks to place it within the larger context of the current state of affairs in education and in copyright policy making. In a recent article, Professor Peter Jaszi argued that educators need to begin to articulate the ways in which their uses are transformative in order to increase their chances of winning copyright infringement suits on the basis of fair use. While Jaszi’s point that educators need to better articulate their rights to use copyrighted content is well-taken, we argue that the appropriate audience educators …
Authority And Authors And Codes, Michael J. Madison
Authority And Authors And Codes, Michael J. Madison
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Contests over the meaning and application of the federal Computer Fraud and Abuse Act (“CFAA”) expose long-standing, complex questions about the sources and impacts of the concept of authority in law and culture. Accessing a computer network “without authorization” and by “exceeding authorized access” is forbidden by the CFAA. Courts are divided in their interpretation of this language in the statute. This Article first proposes to address the issue with an insight from social science research. Neither criminal nor civil liability under the CFAA should attach unless the alleged violator has transgressed some border or boundary that is rendered visible …
Lost Classics Of Intellectual Property Law, Michael J. Madison
Lost Classics Of Intellectual Property Law, Michael J. Madison
Articles
Santayana wrote, “Those who cannot remember the past are condemned to repeat it.” American legal scholarship often suffers from a related sin of omission: failing to acknowledge its intellectual debts. This short piece attempts to cure one possible source of the problem, in one discipline: inadequate information about what’s worth reading among older writing. I list “lost classics” of American scholarship in intellectual property law. These are not truly “lost,” and what counts as “classic” is often in the eye of the beholder (or reader). But these works may usefully be found again, and intellectual property law scholarship would be …
Book Review -- William Patry, How To Fix Copyright, Michael J. Madison
Book Review -- William Patry, How To Fix Copyright, Michael J. Madison
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I review William Patry’s book How to Fix Copyright. The book is noteworthy for its ambitious yet measured effort to diagnose where copyright law has gone astray in recent years. It is less successful with respect to proposing possible changes to the law. Most interesting are parallels between How to Fix Copyright and an earlier comprehensive look at copyright law in the digital era: Paul Goldstein’s Copyright’s Highway: From Gutenberg to the Celestial Jukebox. William Patry and Paul Goldstein each have a lot of faith in the power of consumer choice in the cultural marketplace. That faith leads …
Madisonian Fair Use, Michael J. Madison
Madisonian Fair Use, Michael J. Madison
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This short essay reflects on developments in the law, scholarship, and practice of fair use since the publication in 2004 of an earlier article on patterns in fair use practice and adjudication. It synthesizes many of those developments in the idea of “Madisonian” fair use, borrowing the separation of powers metaphor from James Madison’s work on the US Constitution and applying it, lightly and in a preliminary way, to copyright.
The End Of The Work As We Know It, Michael J. Madison
The End Of The Work As We Know It, Michael J. Madison
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This paper takes a new look at the concept of the work of authorship in copyright, known in other systems as the copyright work. It complements inquiries into authorship and originality, extending earlier scholarship on the origins of legal “things” or objects and on the multi-dimensional character of their borders and boundaries.
Knowledge Curation, Michael J. Madison
Knowledge Curation, Michael J. Madison
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This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing new knowledge and offering access to it. Equivalent attention rarely is paid to questions of old knowledge. To what extent should the law, and particularly intellectual property law, focus on the durability of information and knowledge? To what extent does the law do so already, and to what effect? This article begins to explore those questions. Along the way, the article takes up distinctions among different types …
Some Optimism About Fair Use And Copyright Law, Michael J. Madison
Some Optimism About Fair Use And Copyright Law, Michael J. Madison
Articles
This short paper reflects on the emergence of codes of best practices in fair use, highlighting both the relationship between the best practices approach and an institutional perspective on copyright and the relationship between the best practices approach and social processes of innovation and creativity.
Wikipedia And The European Union Database Directive, Jacqueline D. Lipton
Wikipedia And The European Union Database Directive, Jacqueline D. Lipton
Articles
“Web 2.0" and "User Generated Content (UGC)" are the new buzzwords in cyberspace. In recent years, law and policy makers have struggled to keep pace with the needs of digital natives in terms of online content control in the new participatory web culture. Much of the discourse about intellectual property rights in this context revolves around copyright law: for example, who owns copyright in works generated by multiple people, and what happens when these joint authored works borrow from existing copyright works in terms of derivative works rights and the fair use defense. Many works compiled by groups are subject …
Beyond Creativity: Copyright As Knowledge Law, Michael J. Madison
Beyond Creativity: Copyright As Knowledge Law, Michael J. Madison
Articles
The Supreme Court’s copyright jurisprudence of the last 100 years has embraced the creativity trope. Spurred in part by themes associated with the story of “romantic authorship” in the 19th and 20th centuries, copyright critiques likewise ask, “Who is creative?” “How should creativity be protected (or not) and encouraged (or not)?” and “ Why protect creativity?” Policy debates and scholarship in recent years have focused on the concept of creativity in framing copyright disputes, transactions, and institutions, reinforcing the notion that these are the central copyright questions. I suggest that this focus on the creativity trope is unhelpful. I argue …
Of Coase And Comics, Or, The Comedy Of Copyright, Michael J. Madison
Of Coase And Comics, Or, The Comedy Of Copyright, Michael J. Madison
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This Essay responds to There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, by Dotan Oliar and Christopher Sprigman. It argues that case studies of disciplines and domains that may be governed by intellectual property regimes are invaluable tools for comparative analysis of the respective roles of law and other forms of social order. The Essay examines the case of stand-up comedy under a lens that is somewhat broader than the one used by the authors of the original study, one that takes into account not only the social norms of individual …
Notes On A Geography Of Knowledge, Michael J. Madison
Notes On A Geography Of Knowledge, Michael J. Madison
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Law and knowledge jointly occupy a metaphorical landscape. Understanding that landscape is essential to understanding the full complexity of knowledge law. This Article identifies some landmarks in that landscape, which it identifies as forms of legal practice: several recent cases involving intellectual property licenses, including the recent patent law decision in Quanta v. LG Electronics and the open source licensing decision in Jacobsen v. Katzer. The Article offers a preliminary framework for exploring the territories of knowledge practice in which those legal landmarks appear.
To (C) Or Not To (C)? Copyright And Innovation In The Digital Typeface Industry, Jacqueline D. Lipton
To (C) Or Not To (C)? Copyright And Innovation In The Digital Typeface Industry, Jacqueline D. Lipton
Articles
Intellectual property rights are often justified by utilitarian theory. However, recent scholarship suggests that creativity thrives in some industries in the absence of intellectual property protection. These industries might be called IP's negative spaces. One such industry that has received little scholarly attention is the typeface industry. This industry has recently digitized. Its adoption of digital processes has altered its market structure in ways that necessitate reconsideration of its IP negative status, with particular emphasis on copyright. This article considers the historical denial of copyright protection for typefaces in the United States, and examines arguments both for and against extending …
Intellectual Property And Americana, Or Why Ip Gets The Blues, Michael J. Madison
Intellectual Property And Americana, Or Why Ip Gets The Blues, Michael J. Madison
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This essay, prepared as part of a Symposium on intellectual property law and business models, suggests the re-examination of the role of intellectual property law in the persistence of cultural forms of all sorts, including (but not limited to) business models. Some argue that the absence of intellectual property law inhibits the emergence of durable or persistent cultural forms; copyright and patent regimes are justified precisely because they supply foundations for durability. The essay tests that proposition via brief reviews of three persistent but very different cultural models, each of which represents a distinct form of American culture: The Rocky …
Ip's Problem Child: Shifting The Paradigms For Software Protection, Jacqueline D. Lipton
Ip's Problem Child: Shifting The Paradigms For Software Protection, Jacqueline D. Lipton
Articles
Computer software is somewhat of a problem child for intellectual property law. Courts and legislatures have struggled to encourage innovations in software development while, at the same time, attempting to avoid undesirable digital information monopolies. Neither the patent nor the copyright system has provided a particularly satisfactory paradigm for software protection. Although patents have received greater attention than copyrights in the software context (consider, for example, the recent BlackBerry case), copyright law arguably creates more insidious undercurrents in today's marketplace. This is partly because we have not yet appreciated the potential impact of recent developments in programming methodology and digital …
Solving The Digital Piracy Puzzle: Disaggregating Fair Use From The Dmca's Anti-Device Provisions, Jacqueline D. Lipton
Solving The Digital Piracy Puzzle: Disaggregating Fair Use From The Dmca's Anti-Device Provisions, Jacqueline D. Lipton
Articles
Copyright law has always involved balancing creative pursuits against innovations in copying, distribution and, more recently, encryption technologies. A significant problem for copyright law is that many such technologies can be utilized for both socially useful and socially harmful purposes. It is difficult to regulate such technologies in a way that prevents social harms while at the same time facilitating social benefits. The most recent example of this dynamic is evident in the 2005 United States Supreme Court decision in MGM v Grokster - dealing with digital file-sharing technologies. This article draws from the file sharing debate in considering another …
Rewriting Fair Use And The Future Of Copyright Reform, Michael J. Madison
Rewriting Fair Use And The Future Of Copyright Reform, Michael J. Madison
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This Essay describes a social practices approach to the production of creative expression, as a construct to guide reform of copyright law. Specifically, it reimagines copyright's fair use doctrine by basing its statutory text explicitly on social practices. It argues that the social practices approach is consistent with the historical development of the fair use doctrine and with the policy goals of copyright law, and that the approach should be recognized in the text of the statute as well as in judicial applications of fair use.
Law As Design: Objects, Concepts, And Digital Things, Michael J. Madison
Law As Design: Objects, Concepts, And Digital Things, Michael J. Madison
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This Article initiates an account of things in the law, including both conceptual things and material things. Human relationships matter to the design of law. Yet things matter too. To an increasing extent, and particularly via the advent of digital technology, those relationships are not only considered ex post by the law but are designed into things, ex ante, by their producers. This development has a number of important dimensions. Some are familiar, such as the reification of conceptual things as material things, so that computer software is treated as a good. Others are new, such as the characterization of …
Where Does Creativity Come From? And Other Stories Of Copyright, Michael J. Madison
Where Does Creativity Come From? And Other Stories Of Copyright, Michael J. Madison
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This Commentary on Lydia Pallas Loren, Untangling the Web of Music Copyrights, 53 Case W. Res. L. Rev. 673 (2003), observes that debates over a variety of copyright law issues can be - and in fact, often are - structured in narrative terms, rather than in terms of doctrine, policy, or empirical inquiry. I suggest a series of such narratives, each framed by a theme drawn from a feature film. The Commentary suggests that we should recognize more clearly the role of narrative in intellectual property discourse, and that intellectual property narratives should be examined critically.
Rights Of Access And The Shape Of The Internet, Michael J. Madison
Rights Of Access And The Shape Of The Internet, Michael J. Madison
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This Article reviews recent developments in the law of access to information, that is, cases involving click-through agreements, the doctrine of trespass to chattels, the anti-circumvention provisions of the Digital Millennium Copyright Act, and civil claims under the Computer Fraud and Abuse Act. Though the objects of these different doctrines substantially overlap, the different doctrines yield different presumptions regarding the respective rights of information owners and information consumers. The Article reviews those presumptions in light of different metaphorical premises on which courts rely: Internet-as-place, in the trespass, DMCA, and CFAA contexts, and contract-as-assent, in the click-through context. It argues that …
What's My Copy Right?, Michael J. Madison
What's My Copy Right?, Michael J. Madison
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This piece consists of an early 21st century whimsy, a dialogue that borrows and blends history and humor to illustrate some puzzles of copyright law in the context of digital technology (with references to Folsom v. Marsh and Abbott & Costello).
Complexity And Copyright In Contradiction, Michael J. Madison
Complexity And Copyright In Contradiction, Michael J. Madison
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The title of the article is a deliberate play on architect Robert Venturi's classic of post-modern architectural theory, Complexity and Contradiction in Architecture. The article analyzes metaphorical 'architectures' of copyright and cyberspace using architectural and land use theories developed for the physical world. It applies this analysis to copyright law through the lens of the First Amendment. I argue that the 'simplicity' of digital engineering is undermining desirable 'complexity' in legal and physical structures that regulate expressive works.
Legal-Ware: Contract And Copyright In The Digital Age, Michael J. Madison
Legal-Ware: Contract And Copyright In The Digital Age, Michael J. Madison
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ProCD, Inc. v. Zeidenberg, which enforced a shrinkwrap license for computer software, has encouraged the expansion of the shrinkwrap form beyond computer programs, forward, onto the Internet, and backward, toward such traditional works as books and magazines. Authors and publishers are using that case to advance norms of information use that exclude, practically and conceptually, a robust public domain and a meaningful doctrine of fair use. Contesting such efforts by focusing on the contractual nature of traditional shrinkwrap, by relying on market principles, on adhesion theory, on commercial law concepts of usage and custom, or on federal preemption doctrine, feeds …