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Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale
Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale
Faculty Scholarship
The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal.
In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …
Comment: Sony, Fair Use, And File Sharing, Stacey Dogan
Comment: Sony, Fair Use, And File Sharing, Stacey Dogan
Faculty Scholarship
In this short Commentary, I would like to explore just one of the interesting strands developed in her paper-the scope of personal fair use in Sony, and its implications for peer-to-peer file sharing. More specifically, I want to reflect on the suggestion that Sony's broad exemption for personal copying has eroded into something unrecognizable, and that it is this erosion-rather than any difference between file-sharing and time shifting-that explains the courts' hostility to the fair use defense in the peer-to-peer context.
Fair Use: Threat Or Threatened?, Wendy J. Gordon
Fair Use: Threat Or Threatened?, Wendy J. Gordon
Faculty Scholarship
Thank you for inviting me to address the Symposium. It is an honor to participate in the exchange of such interesting and informed views, and to be back at Case.
The original title for my talk had been Warring Frameworks for Fair Use. I had intended to discuss two interpretations of market failure analysis, and to suggest how resolving the conflict between those warring frameworks might resolve a variety of fair use issues.
But then it struck me that this might not be what you, a group made up of both generalists and specialists, would most want in a luncheon …
Do Patents Facilitate Financing In The Software Industry?, Ronald J. Mann
Do Patents Facilitate Financing In The Software Industry?, Ronald J. Mann
Faculty Scholarship
This Article is the first part of a wide study of the role of intellectual property in the software industry. Unlike previous papers that focus primarily on software patents – which generally are held by firms that are not software firms – this Article provides a thorough and contextually grounded description of the role that patents play in the software industry itself.
The bulk of the Article considers the pros and cons of patents in the software industry. The Article starts by emphasizing the difficulties that prerevenue startups face in obtaining any value from patents. Litigation to enforce patents is …
Falling On Deaf Ears: Is The "Fail-Safe" Triennial Exemption Provision In The Digital Millennium Copyright Act Effective In Protecting Fair Use?, Woodrow Hartzog
Falling On Deaf Ears: Is The "Fail-Safe" Triennial Exemption Provision In The Digital Millennium Copyright Act Effective In Protecting Fair Use?, Woodrow Hartzog
Faculty Scholarship
This Article examines whether the "fail-safe" triennial exemption provision of the DMCA is effective for its intended purpose: to serve as a countermeasure to the DMCA's anti-circumvention provisions by protecting the ability of the public to engage in non-infringing uses of copyrighted works. Ultimately, this Article concludes that there are too many faults in both the structure and the execution of the rule-making provision to meaningfully counteract the adverse effects of the anti-circumvention provisions of the DMCA. Specifically, the rule-making procedure explicitly prohibits exemptions to a class based on the use of the work. This amounts to a rejection of …
Copyright Law And Subject Matter Specificity: The Case Of Computer Software, Stacey Dogan, Joseph Liu
Copyright Law And Subject Matter Specificity: The Case Of Computer Software, Stacey Dogan, Joseph Liu
Faculty Scholarship
Drawing on recent work by Dan Burk and Mark Lemley in the patent context, this paper explores the extent to which courts have adapted pre-existing copyright doctrines to the special case of computer software. We argue that a number of courts have, as has been widely recognized, significantly adapted copyright doctrines to deal with special features of the computer software market. We further argue that these adaptations have, by and large, positively sought to strike a balance between the copyright act's dual goals of incentive and access. Despite this general trend toward adaptation, however, we point to a handful of …
Copyright Norms And The Problem Of Private Censorship, Wendy J. Gordon
Copyright Norms And The Problem Of Private Censorship, Wendy J. Gordon
Faculty Scholarship
Copyright policy must resolve intelligently the tension between upstream and downstream creators, between incentives to create and incentives to use. Downstream at1thors who copy and transform others' images or words as an input to new creativity have. obvious free speech concerns. So do simple copiers in those many instances where even non-creative copying is essential for expressing one's ideas or allegiances.
Part of the tension is economic. Because virtually every author :needs access to predecessor texts, a legislature that increases copyright protection for ·today's creators simultaneously increases tomorrow's costs of creation 1 or use. But the issue goes far beyond …
Even Non-Extremists Get The Blues: The Rhetoric Of Copyright, Wendy J. Gordon, Lois Wasoff
Even Non-Extremists Get The Blues: The Rhetoric Of Copyright, Wendy J. Gordon, Lois Wasoff
Faculty Scholarship
The participants in this dialogue are Wendy Gordon and Lois Wasoff. Each is an intellectual property expert who has immersed herself in copyright law and policy for over twenty years. Neither sits at an extreme end of the policy spectrum, yet the two disagree over a wide range of issues. The editors of this volume thought their discussions could prove useful to others struggling with copyright dilemmas. Accordingly, Gordon and Wasoff sat down with a tape recorder for us. In edited form, their dialogue follows here.