Law Commons^™

Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell

Faculty Scholarship

We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” …

Additional Comments On Preliminary Draft 9, Jane C. Ginsburg

Faculty Scholarship

I am adding to the comments submitted by Profs. Balganesh, Menell and myself a list of points in PD9 that I believe require correction or clarification. These comments do not include Chapters 8, 10 or 11.

Comments On Council Draft 7 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

CD7 adopts several of the suggestions in my comments on PD8; I appreciate those modifications. CD7 does not, however, respond to a number of other criticisms and suggestions regarding PD8. For the benefit of the Council, I reprise the suggestions that I consider to be most significant to ensuring the accuracy of the draft (page and line references have been changed to reflect CD7)

Twenty Years Of Us Digital Copyright: Adapting From Analogue, Jane C. Ginsburg

Faculty Scholarship

This review of the period 2001–21 in US copyright law will summarize digital-dominated developments concerning the scope of exclusive rights and exceptions and liability regimes. It will address several developments, all related to the impact of the internet on the exploitation of works of authorship. Digital storage and communications have called into question the scope of the exclusive rights set out in the US Copyright Act, and they have considerably expanded the reach of the fair use exemption. They have strained statutory and common law regimes of secondary liability and prompted the development of a ‘volition’ predicate to primary liability. …

Floors And Ceilings In International Copyright Treaties: Berne/Trips/Wct Minima And Maxima, Jane C. Ginsburg

Faculty Scholarship

This paper addresses “floors” – minimum substantive international protections, and “ceilings” – 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. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by …

The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Productions, Inc. v. McDonald’s Corp. ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonald’s characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software code. …

Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg

Faculty Scholarship

This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a …

Fair Use Factor Four Revisited: Valuing The "Value Of The Copyrighted Work", Jane C. Ginsburg

Faculty Scholarship

Recent caselaw has restored the prominence of the fourth statutory factor – “the effect of the use upon the market for or value of the copyrighted work” – in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should …

Copyright As Legal Process: The Transformation Of American Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law – focusing on horizontal rights, privileges and private liability – copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and law-making that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. …

The Art Of Access: Innovative Protests Of An Inaccessible City, Elizabeth F. Emens

Faculty Scholarship

This Essay considers inaccessible New York City through the lens of artistic production. The landscape of disability art and protest is vast and wildly diverse. This Essay proposes to capture one slice of this array. From Ellis Avery’s Zodiac of NYC transit elevators, to Shannon Finnegan’s Anti-Stairs Club Lounge at the Vessel in Hudson Yards, to Park McArthur’s work exhibiting the ramps that provided her access to galleries showing her work – these and other creative endeavors offer a unique way in to understanding the problems and potential of inaccessible cities. Legal actions have challenged some of the specific sites …

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 …

A United States Perspective On Digital Single Market Directive Art. 17, Jane C. Ginsburg

Faculty Scholarship

To a US appraiser, article 17 of the Digital Single Market Directive suggests the EU has learned from American mistakes (and from its own) in the allocation of internet intermediaries’ liability for hosting and communicating user-posted content. Before the DSM Directive, art. 14 of the 2000 eCommerce Directive set out a notice-and-takedown system very similar to the regime provided in 17 U.S.C. section 512(c). Both regimes replaced the normal copyright default, which requires authorization to exploit works, with a limitation on the liability of service providers who complied with statutory prerequisites. Because the limitation ensured that service providers would not …

Fair Use In The United States: Transformed, Deformed, Reformed?, Jane C. Ginsburg

Faculty Scholarship

Since the U.S. Supreme Court’s 1994 adoption of “transformative use” as a criterion for evaluating the first statutory fair use factor (“nature and purpose of the use”), “transformative use” analysis has engulfed all of fair use, becoming transformed, and perhaps deformed, in the process. A finding of “transformativeness” often foreordained the ultimate outcome, as the remaining factors, especially the fourth (impact of the use on the market for or value of the copied work), withered into restatements of the first. For a time, moreover, courts’ characterization of uses as “transformative” seemed ever more generous (if not in some instances credulous). …

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 …

Authors And Machines, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Machines, by providing the means of mass production of works of authorship, engendered copyright law. Throughout history, the emergence of new technologies tested the concept of authorship, and courts in response endeavored to clarify copyright’s foundational principles. Today, developments in computer science have created a new form of machine, the “artificially intelligent” (AI) system apparently endowed with “computational creativity.” AI systems introduce challenging variations on the perennial question of what makes one an “author” in copyright law: Is the creator of a generative program automatically the author of the works her process begets, even if she cannot anticipate the contents …

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 …

Intellectual Property As Seen By Barbie And Mickey: The Reciprocal Relationship Of Copyright And Trademark Law, Jane C. Ginsburg

Faculty Scholarship

Some years ago, caselaw on trademark parodies and similar unauthorized “speech” uses of trademarks could have led one to conclude that the law had no sense of humor. Over time, however, courts in the US and elsewhere began to leaven likelihood of confusion analyses with healthy skepticism regarding consumers’ alleged inability to perceive a joke. These decisions did not always expressly cite the copyright fair use defense, but the considerations underlying the copyright doctrine seemed to inform trademark analysis as well. The spillover effect may indeed have been inevitable, as several of the cases in which the fair use defense …

Copyright As Market Prospect, Shyamkrishna Balganesh

Faculty Scholarship

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts – principally trespass and negligence – in order to understand copyright’s structure of entitlement and liability. This focus on property – and harm-based torts – has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant’s volitional actions interfere with a …

Copyright, Jane C. Ginsburg

Faculty Scholarship

This chapter o􀁼ers an overview of copyright in general in common law and civil law countries, with an emphasis on the United States (US) and the European Union (EU). It addresses the history and philosophies of copyright (authors’ right), subject matter of copyright (including the requirement of 􀁿xation and the exclusion of “ideas”), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. It also covers the liability of …

Extended Collective Licenses In International Treaty Perspective: Issues And Statutory Implementation, Jane C. Ginsburg

Faculty Scholarship

National legislation establishing extended collective licenses (ECLs) “authoriz[es] a collective organization to license all works within a category, such as literary works, for particular, limited uses, regardless of whether copyright owners belong to the organization or not. The collective then negotiates agreements with user groups, and the terms of those agreements are binding upon all copyright owners by operation of law.” Albeit authorized under national laws, collective coverage of non-members’ works may pose issues of compatibility with international norms. For example, if non-members must opt-out in order to preserve the individual management of their rights, is the opt-out a “formality” …

Fair Use And Fair Dealing: Two Approaches To Limitations And Exceptions In Copyright Law, Shyamkrishna Balganesh, David Nimmer

Faculty Scholarship

Premised on realizing a balance between protection and access, ‘limitations and exceptions’ play an important role in the any copyright system. Jurisdictions around the world are generally thought to adopt one of two possible approaches to structuring limitations and exceptions: (a) the fair dealing approach, which delineates highly specific and carefully-worded exceptions with little room for judicial discretion, and (b) the fair use approach, which relies on more open-ended language and its contextual tailoring by courts. This chapter undertakes a comparative analysis of these two approaches using the Indian and US copyright systems as its focus. It shows that, although …

Intellectual Property In News? Why Not?, Sam Ricketson, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out …

Berne-Forbidden Formalities And Mass Digitization, Jane C. Ginsburg

Faculty Scholarship

This Essay addresses the Berne Convention's prohibition on the imposition of "formalities" on the "enjoyment and the exercise" of copyright, and the compatibility with that cornerstone norm of international endeavors to facilitate mass digitization, notably by means of extended collective licensing and "opt-out" authorizations. In the Berne context, "enjoyment" means the existence and scope of rights; "exercise" means their enforcement. Voluntary provision of copyright notice and of title-searching information on a public register of works and transfers of rights is fully consistent with Berne and should be encouraged. But the Berne Convention significantly constrains member states' ability to impose mandatory …

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 …

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 …

On Aereo And "Avoision", Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Avoision describes conduct which seeks to exploit 'the differences between a law's goals and its self-defined limits' – a phenomenon particularly apparent in tax law. This short paper explains how the technology company Aereo utilised avoision strategies in an attempt to design its way out of liability under US copyright law. The authors argue that existing formulations encourage such strategies by applying differently depending on how the transaction is structured, resulting in a wasteful devotion of resources to hyper-technical compliance with the letter rather than meaning and purpose of the law.?

Intellectual Property Experimentalism By Way Of Competition Law, Tim Wu

Faculty Scholarship

Competition law and Intellectual Property have divergent intellectual cultures – the former more pragmatic and experimentalist; the latter influenced by natural law and vested rights. The US Supreme Court decision in Federal Trade Commission v. Actavis is an intellectual victory for the former approach, one that suggests that antitrust law can and should be used to introduce greater scrutiny of the specific consequences of intellectual property grants.

From Hypatia To Victor Hugo To Larry And Sergey: ‘All The World's Knowledge’ And Universal Authors’ Rights, Jane C. Ginsburg

Faculty Scholarship

Access to ‘all the world’s knowledge’ is an ancient aspiration; a less venerable, but equally vigorous, universalism strives for the borderless protection of authors’ rights. Late 19th-century law and politics brought us copyright universalism; 21st-century technology may bring us the universal digital library. But how can ‘all the world’s knowledge’ be delivered, on demand, to users anywhere in the world (with Internet access), if the copyrights of the creators and publishers of many of those works are supposed to be enforceable almost everywhere in the world? Does it follow that the universal digital library of the near future threatens copyright …

Comments On Alrc Discussion Paper 79, Copyright And The Digital Economy, June M. Besek, Jane C. Ginsburg, Philippa Loengard

Faculty Scholarship

We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated "fair use" type exception in Australia, and other related issues.

The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot be …

Speaking Of Moral Rights: A Conversation Between Eva E. Subotnik And Jane C. Ginsburg, Jane C. Ginsburg, Eva E. Subotnik

Faculty Scholarship

A transcribed conversation about moral rights in the digital age — in respect of some of the legal and technological developments that have occurred since Professor Jane Ginsburg's 2001 essay, Have Moral Rights Come of (Digital) Age in the United States?, 19 Cardozo Arts & Ent. L. J. 9 (2001).