Law Commons^™

A Tale Of Two Interoperabilities; Or, How Google V. Oracle Could Become Social Media Legislation, Charles Duan

Articles in Law Reviews & Other Academic Journals

The Supreme Court'srecent decision in Google LLC v. Oracle America, Inc. has provided the latest word on an issue that many have described as "interoperability," and it comes at a time when lawmakers around the world are debating a policy called "interoperability" with respect to majorInternetplatforms. At first glance, these two similarly named policy conversations copyright protection of software interfaces and interconnection among competing Internet platforms, respectively have little to do with each other. Yet they are vitally intertwined: the activities and issues featured in Google are so closely linked to the questions of digital competition that interoperability reforms directed …

Copyright In The Texts Of The Law: Historical Perspectives, Charles Duan

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Recently, state governments have begun to claim a copyright interest in their official published codes of law, in particular arguing that ancillary materials such as annotations to the statutory text are subject to state-held copyright protection because those materials are not binding commands that carry the force of law. Litigation over this issue and a vigorous policy debate are ongoing.

This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law …

Implementing User Rights For Research In The Field Of Artificial Intelligence: A Call For International Action, Sean Flynn, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, …

Cracking The Copyright Dilemma In Software Preservation: Protecting Digital Culture Through Fair Use Consensus, Peter Jaszi, Patricia Aufderheide, Brandon Butler, Krista L. Cox

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Copyright problems may inhibit the crucially important work of preserving legacy software. Such software is worthy of study in its own right because it is critical to accessing digital culture and expression. Preservation work is essential for communicating across boundaries of the past and present in a digital era. Software preservationists in the United States have addressed their copyright problems by developing a code of best practices in employing fair use. Their work is an example of how collective action by users of law changes the norms and beliefs about law, which can in turn change the law itself insofar …

The Commercial Appropriation Of Frame: A Cultural Analysis Of Right Of Publicity And Passing Off, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

Over several centuries, the rhetoric of 'gap filling' has often been invoked to naturalise expansions of intellectual property ("IP") rights-copyright term extension, the patenting of life forms, trademark disparagement, and so forth. The ready pragmatism of the phrase has definite audience appeal, making big changes sound like straightforward responses to external conditions-rather than choices about how to draw the line between private ownership and public discourse. We know, however, that once filled, 'gaps' tend to stay filled. Retrospective debates about the wisdom of such decisions tend to be (both literally and figuratively) of merely academic interest. So what is most …

The Court And The Cannonball: An Inside Look, Stephen Wermiel, Lee Levine

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As lawsuits over the right of publicity proliferate among athletes and other celebrities, there is renewed interest, by litigants and judges alike, in the one decision by the U.S. Supreme Court that addresses a tort action arising from a "publicity" related claim, Zacchini v. Scripps-Howard Broadcasting Co. Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court justices' available papers shows that the Court did not view the case as presenting the type of claim that has become …

No Comment: Will Cariou V. Prince Alter Copyright Judges’ Taste In Art?, Christine Haight Farley

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Even before Campbell v. Acuff-Rose Music, Inc. made transformativeness the name of the game in fair use law, judges have been in search of artistic speech in their copyright fair use determinations, especially in appropriation art cases. Judges often find themselves ascribing meaning both to the defendant’s work and the plaintiff’s work when comparing the two in order to determine whether defendant’s art is new. So while many commentators attribute appropriation artist Jeff Koons’s victory in Blanch v. Koons after a string of losses to the development in fair use law contributed by Campbell, I instead argue that it has …

Territorial Exclusivity In U.S. Copyright And Trademark Law, Christine Farley

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Currently, U.S. trademark and copyright law both adopt employ a regime of international exhaustion of rights with respect to parallel importation after the Supreme Court ruled in Kirtsaeng last term. This agreement belies the fact that these two areas of law have developed in nearly divergent directions and have resulted in faltering intellectual property and trade policies. Currently, interpretation of the first sale doctrine hinges on the particular legal characteristics of both trademarks and copyrights. When dealing with trademarks, courts ultimately focus on the source of origin, taking into account consumer expectations or, instead, focusing on the business relationship, if …

Pinterest And Copyright's Safe Harbors For Internet Providers, Michael W. Carroll

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Has the time come to substantially revise the Copyright Act to better adapt the law to the ever-evolving digital environment? A number of influential sources appear to think so. If their initiatives gain momentum, it will be important to consider lessons learned from the first such effort fifteen years ago when Congress made far-reaching changes to copyright law by extending the term of copyright for twenty years and by enacting a package of reform proposals known as the Digital Millennium Copyright Act (“DMCA”). This Article intertwines the story of one important provision of the DMCA - safe harbors for Internet …

Fair Use And Education: The Way Forward, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

The ability to make reasonable fair use of copyrighted material is both economically and culturally important to the enterprise of education. No other feature of copyright laws offers educators access of the same potential scope. In asserting fair use, teachers, librarians, and others cannot rely on a claim of "economic exceptionalism, "for which there is no clear basis in U.S. copyright law. Nor can they expect to arrive at satisfactory shared understandings with copyright owners. Instead, they should seek to take advantage of current trends in copyright case law, including the marked trend toward preferring uses that are "transformative," where …

A Realist Approach To Copyright Law's Formalities, Michael W. Carroll

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Rejecting the conventional story that formalities in copyright law were abolished by the Berne Convention, this Article demonstrates that privately administered systems of formalities play a significant role in the administration of copyright law worldwide. Indeed, they must because copyright is designed to support a transaction structure which requires rightsholders who seek to attract licensing partners to go through some formal step to identify themselves and the works in which they have a legal or beneficial interest. Canvassing the landscape of mandatory and voluntary public and private systems of formalities, this article argues that: (1) national policymakers retain more policy …

Copyright's Creative Hierarchy In The Performing Arts, Michael Carroll

Articles in Law Reviews & Other Academic Journals

Copyright law grants authors certain rights of creative control over their works. This Article argues that these right of creative control are too strong when applied to the performing arts because they fail to take account of the mutual dependence between writers and performers to fully realize the work in performance. This failure is particularly problematic in cases in which the author of a source work, such as a play or a choreographic work, imposes content-based restrictions on how a third party may render the work in performance. This Article then explores how Congress might craft a statutory license to …

Copyright’S Creative Hierarchy In The Performing Arts, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

Copyright law grants authors certain rights of creative control over their works. This Article argues that these rights of creative control are too strong when applied to the performing arts because they fail to take account of the mutual dependence between writers and performers to fully realize the work in performance. This failure is particularly problematic in cases in which the author of a source work, such as a play or a choreographic work, imposes content-based restrictions on how a third party may render the work in performance. This Article then explores how Congress might craft a statutory license to …

Why Full Open Access Matters, Michael Carroll

Articles in Law Reviews & Other Academic Journals

This Perspective argues that when authors or funders pay the full cost of publishing a scientific or scholarly journal article in an open access journal, the terms of reuse should require only attribution to some combination of the author(s), the original publisher, and the funder. Publications that charge authors and their financial backers the full cost of publication and then add other reuse restrictions are not fully open access publications.

Getting To Best Practices - A Personal Voyage Around Fair Use, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

These days, I view fair use as a central feature of the law around our information ecology - its presence reminding us, from day to day, that there is more to copyright than maximization, and that innovation happens when the doctrinal settings are loose enough to permit a good deal of "play" (literally and figuratively) in the system. But before the mid-1990s I thought little about the fair use doctrine and did less. As I suspect may be true of other copyright lawyers of my generation (and the ones preceding it, I spent most of my professional career taking fair …

The Statute Of Anne: Today And Tomorrow, Peter Jaszi, Craig Joyce, Marshall A. Leaffer, Tyler Trent Ochoa

Articles in Law Reviews & Other Academic Journals

This essay provides the epilogue to the University of Houston’s Institute for Intellectual Property & Information Law’s 2010 National Conference, “The ©©© Conference: Celebrating Copyright’s tri-Centennial,” in Santa Fe, New Mexico. The conference focused on the Statute of Anne, the first copyright statute ever, anywhere, enacted by the British Parliament in 1710.

Copyright law in the United States, the lineal descendant of the Statute of Anne, has managed to negotiate a course between over-protecting and under-protecting copyrighted matter, and to strike at least a rough balance between the social interest in securing capital investment, on the one hand, and encouraging …

Recut, Reframe, Recycle: The Shaping Of Fair Use Best Practices For Online Video, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

This article discusses the intertwining of creative and copyright practices, as demonstrated by the emergence and evolution of standards to assess fair use in online video from 2007-2009. The development of such standards demonstrates the effectiveness of community-based standards to expand the utility of fair use and the importance of practice in affecting the interpretation of law. This process demonstrates the relationship between copyright practice and creative practice.

The Copyright Principles Project: Directions For Reform, Michael W. Carroll, Pamela Samuelson, Members Of The Cpp

Articles in Law Reviews & Other Academic Journals

No abstract provided.

One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

The United States and its trading partners have adopted cultural and innovation policies under which the government grants one-size-fits-all patents and copyrights to inventors and authors. On a global basis, the reasons for doing so vary, but in the United States granting intellectual property rights has been justified as the principal means of promoting innovation and cultural progress. Until recently, however, few have questioned the wisdom of using such blunt policy instruments to promote progress in a wide range of industries in which the economics of innovation varies considerably.

Provisionally accepting the assumptions of the traditional economic case for intellectual …

Memorial To Barbara Ringer, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

The story goes that in 439 BC the retired consul Cincinnatus was summoned from the plow by the Senate and people of Rome. One more time, he saw the Republic through a time of particular peril, resigning office immediately afterwards to return to his rural retirement - to be transmuted into a timeless emblem of selfless probity. Episodes of this kind are even rarer in the annals of the U.S. civil service than in the Roman history. But I had the good fortune to be a witness to one such - Barbara Ringer's return to the Library of Congress in …

Is There Such A Thing As Postmodern Copyright?, Peter Jaszi

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Back in 1992, artist/entrepreneur Jeff Koons suffered a humiliating setback when the United States Court of Appeals for the Second Circuit repudiated the suggestion that his reuse of objects from public culture might constitute a "fair use" defense to a copyright infringement claim. Fourteen years later, in a case that again involved a photographer's claim of copyright infringement, Koons triumphed in the same judicial forum. What had changed? This Article explores, in particular, one among a variety of alternative explanations: Koons may have caught the very leading edge of a profound wave of change in the social and cultural conceptualization …

Complying With The National Institutes Of Health Public Access Policy: Copyright Considerations And Options, Michael Carroll

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This White Paper is written primarily for policymaking staff in universities and other institutional recipients of NIH support responsible for ensuring compliance with the Public Access Policy. The January 11, 2008, Public Access Policy imposes two new compliance mandates. First, the grantee must ensure proper manuscript submission. The version of the article to be submitted is the final version over which the author has control, which must include all revisions made after peer review. The statutory command directs that the manuscript be submitted to PMC “upon acceptance for publication.” That is, the author’s final manuscript should be submitted to PMC …

Writer's Block, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Fixing Fair Use, Michael W. Carroll

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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 …

Copyright, Fair Use And Motion Pictures, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

Within copyright law, the tension between contemporary creators' needs for access to preexisting material, on the one hand, and the imperatives of copyright ownership, on the other, are mediated primarily by the so-called "fair use" doctrine. The application of this venerable legal concept, which exempts some substantial takings of protected content from infringement liability, is the subject of this essay.

The Movement For Open Access Law, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

My claim in this contribution to this important symposium is that the law and legal scholarship should be freely available on the Internet, and copyright law and licensing should facilitate achievement of this goal. This claim reflects the combined aims of those who support the movement for open access law. This nascent movement is a natural extension of the well-developed movement for free access to primary legal materials and the equally well-developed open access movement, which seeks to make all scholarly journal articles freely available on the Internet. Legal scholars have only general familiarity with the first movement and very …

Creative Commons And The New Intermediaries, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

This symposium contribution examines the disintermediating and reintermediating roles played by Creative Commons licenses on the Internet. Creative Commons licenses act as a disintermediating force because they enable end-to-end transactions in copyrighted works. The licenses have reintermediating force by enabling new services and new online communities to form around content licensed under a Creative Commons license. Intermediaries focused on the copyright dimension have begun to appear online as search engines, archives, libraries, publishers, community organizers, and educators. Moreover, the growth of machine-readable copyright licenses and the new intermediaries that they enable is part of a larger movement toward a Semantic …

One For All: The Problem Of Uniformity Cost In Intellectual Property Law, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms.

This Article argues that reducing uniformity cost is the central problem for intellectual …

Judging Art, Christine Farley

Articles in Law Reviews & Other Academic Journals

What is art? Surprisingly, this question is addressed in various places in the law. At these junctures, courts typically attempt to avoid making a judgment. Indeed, the law generally resists any definition of art. The reasons given for this are that these determinations are too subjective for the courts and that judges lack proper training and expertise. Thus, the doctrine of avoidance is the most stable and explicitly stated proposition to be found in these encounters. However, the question of whether an object is a work of art for treatment under the law is often unavoidable. This question gets resolved …

The Struggle For Music Copyright, Michael W. Carroll

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Inspired by passionate contemporary debates about music copyright, this Article investigates how, when, and why music first came within copyright's domain. Ironically, although music publishers and recording companies are among the most aggressive advocates for strong copyright in music today, music publishers in eighteenth-century England resisted extending copyright to music. This Article sheds light on a series of early legal disputes concerning printed music that yield important insights into original understandings of copyright law and music's role in society. By focusing attention on this understudied episode, this Article demonstrates that the concept of copyright was originally far more circumscribed than …