Law Commons^™

Copyright And The 1%, Glynn Lunney

Faculty Scholarship

No one ever argues for copyright on the grounds that superstar artists and authors need more money, but what if that is all, or mostly all, that copyright does? This article presents newly available data on the distribution of players across the PC videogame market. This data reveals an L-shaped distribution of demand. A relative handful of games are extremely popular. The vast majority are not. In the face of an L curve, copyright overpays superstars, but does very little for the average author and for works at the margins of profitability. This makes copyright difficult to justify on either …

A Natural Right To Copy, Glynn Lunney

Faculty Scholarship

In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the "no-harm" principle of John Locke to justify copyright as natural right and then used his “enough-and-as-good” proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth …

Death Of Copyright, Paul Gugliuzza

Faculty Scholarship

The four primary bodies of intellectual property law—patent law, copyright law, trademark law, and the law of trade secrets—address the question of duration in different ways. Trade secrets have no fixed duration; the law protects against misappropriation as long as the relevant information remains secret. Trademark protection lasts as long as the mark retains its capacity to distinguish the goods or services it is attached to. In patent law—my primary area of scholarship—duration is fixed, finite, and generally straightforward to determine: you get twenty years from the date you file your patent application. Copyright duration, by contrast, varies depending on …

A Tale Of Two Copyrights, Glynn Lunney

Faculty Scholarship

This essay explores two possible copyright regimes. The first uses costless and perfect price discrimination to enable copyright owners to capture the full market or exchange value of their work. The second also uses costless and perfect price discrimination, but allows copyright owners to capture only the persuasion cost for authoring and distributing a work. We can call the first regime, costless copyright maximalism, and the second, costless copyright minimalism. The choice between these two regimes is primarily distributional: Should we design copyright to allocate the surplus associated with copyrighted works to copyright owners or to copyright consumers? This essay …

The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog

Faculty Scholarship

It’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic …

Control Over Contemporary Photography: A Tangle Of Copyright, Right Of Publicity, And The First Amendment, Jessica Silbey

Faculty Scholarship

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks …

Price Discrimination & Intellectual Property, Michael J. Meurer, Ben Depoorter

Faculty Scholarship

This chapter reviews the law and economics literature on intellectual property law and price discrimination. We introduce legal scholars to the wide range of techniques used by intellectual property owners to practice price discrimination; in many cases the link between commercial practice and price discrimination may not be apparent to non-economists. We introduce economists to the many facets of intellectual property law that influence the profitability and practice of price discrimination. The law in this area has complex effects on customer sorting and arbitrage. Intellectual property law offers fertile ground for analysis of policies that facilitate or discourage price discrimination. …

Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey

Faculty Scholarship

This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. …

Copyright’S Memory Hole, Jessica Silbey, Eric Goldman

Faculty Scholarship

There is growing interest in using copyright to protect the privacy and reputation of people depicted in copyrighted works. This pressure is driven by heightened concerns about privacy and reputation on the Internet, plus copyright’s plaintiff-favorable attributes compared to traditional privacy and reputation torts.

The Constitution authorizes copyright law because its exclusive rights benefit society by increasing our knowledge. Counterproductively, to advance privacy and reputation interests, copyright law is being misdeployed to suppress socially valuable works. This results in “memory holes” in society’s knowledge, analogous to those discussed in George Orwell’s dystopian novel 1984.

By referencing Constitutional considerations, the Article …

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 …

Existential Copyright And Professional Photography, Jessica Silbey, Eva Subotnik, Peter Dicola

Faculty Scholarship

Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual …

Justifying Copyright In The Age Of Digital Reproduction: The Case Of Photographers, Jessica Silbey

Faculty Scholarship

This Article explores the justification for copyright from two sources: seminal court cases and accounts from photographic authors. It takes as its premise that copyright protection requires justification, not only because creative work is frequently made and disseminated without reliance on copyright, but because, in the age of digital technology, practices of creative production and dissemination have sufficiently changed to question the existing contours of the forty-year-old Copyright Act. Why read the photographers’ stories alongside the court cases? Each present contested views of copyright’s relation to creativity. At times, the photographers’ accounts and the case law strengthen and reinforce each …

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 …

The Costs Of Trademarking Dolls, Jessica Silbey

Faculty Scholarship

Professor Curtin’s article, Zombie Cinderella and the Undead Public Domain, takes a recent case from the Trademark Trial and Appeal Board (TTAB) as the basis for an argument that trademark doctrine needs stronger protection against the exclusive commercial appropriation of characters that are in the public domain. In that case, a doll manufacturer sought to register the term “Zombie Cinderella” for a doll that was zombie-ish and princess-like. The examiner refused registration because the term “Zombie Cinderella” for this kind of doll was confusingly similar to the mark for Walt Disney’s Cinderella doll. Although the TTAB overturned the examiner’s …

All Your Works Are Belong To Us: New Frontiers For The Derivative Work Right In Video Games, J. Remy Green

Faculty Scholarship

In copyright law, the author of an original work has the exclusive right to prepare further works derivative of that original. Video game developers’ works are protected by the Copyright Act. As video games take advantage of more advanced technology, however, players are doing more creative, interesting, and original things when they play games. Certain things players do create independent economic value and are the kinds of acts of original authorship our copyright system is designed to encourage. However, since the author of the video game is entitled to the full panoply of rights under the laws of the American …

A (Nude) Picture Is Worth A Thousand Words — But How Many Dollars?: Using Copyright As A Metric For Harm In ‘Revenge Porn’ Cases, J. Remy Green

Faculty Scholarship

So-called “Revenge Porn” — pornography published without the subject’s permission — is a growing issue. While much discussion exists about how best to outlaw the practice, less has been said about precisely how to measure the harm done. This paper is grounded in an in-depth analysis of the particular way that the Federal Sentencing Guidelines prioritize financial harms and non-financial harms, specifically looking at how many dollars of harm it takes to buy each additional sentencing point. I graph the enforcement priorities for financial and non-financial harm using the numbers federal agencies use for the value of a statistical life. …

Preserving Film Preservation From The Right Of Publicity, Christopher J. Buccafusco, Jared Vasconcellos Grubow, Ian J. Postman

Faculty Scholarship

No abstract provided.

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 …

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 …

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 …

Three Strikes For Copyright, Jessica Silbey

Faculty Scholarship

How should copyright law change to take account of the internet? Should copyright expand to plug the internet’s leakiness and protect content that the internet would otherwise make more freely available? Or, should copyright relax its strict liability regime given diverse and productive reuses in the internet age and the benefits networked diffusion provides users and second-generation creators? Answering these questions depends on what we think copyright is for and how it is used and confronted by creators and audiences. In a new article studying these questions in the very focused setting of Wikipedia articles about baseball and baseball players …

Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon

Faculty Scholarship

My own view is that Goold overstates the explanatory role of tort law. But even were that not the case, the courts need to reach some kind of “settled” understanding on these various interests before a cause of action is created or definitively rejected, and that no such consensus on the three matters mentioned yet exists, whether they are viewed as forms of tort or otherwise. Goold’s work may nevertheless be an important step toward reaching closure on these and other open questions in copyright law.

Transformative Use In Software, Clark D. Asay

Faculty Scholarship

Fair use is copyright law’s most important defense against claims of copyright infringement. It provides courts with an equitable tool for allowing parties to use the copyrighted materials of others without liability when doing so facilitates copyright’s constitutional purpose of promoting the “progress of Science and the useful Arts.”

When analyzing fair use, modern courts place great emphasis on whether the purportedly fair use involves a “transformative use” of the copyrighted materials. In what some are calling the most important software copyright case in decades, a jury recently handed Google a victory by concluding that Google’s reuse of some of …

"Free Speech, First Amendment, And New Media For Cons And Festivals" From Pop Culture Business Handbook For Cons And Festivals, Jon Garon

Faculty Scholarship

This article is part of a series of book excerpts from The Pop Culture Business Handbook for Cons and Festivals, which provides the business, strategy, and legal reference guide for fan conventions, film festivals, musical festivals, and cultural events.Although most events are organized by private parties, the location of these events in public venues and the crowd management issues involving free speech make First Amendment and free speech issues a critical component of event management. This excerpt provides a framework for understanding the legal and security issues involving free speech at public events.

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 …

Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer

Faculty Scholarship

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear under-standing of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply …

Functionality Screens, Christopher Buccafusco, Mark A. Lemley

Faculty Scholarship

Among intellectual property (IP) doctrines, only utility patents should protect function. Utility patents offer strong rights that place constraints on competition, but they only arise when inventors can demonstrate substantial novelty after a costly examination. Copyrights, trademarks, and design patents are much easier to obtain than utility patents, and they often last much longer. Accordingly, to prevent claimants from obtaining “backdoor patents,” the other IP doctrines must screen out functionality. As yet, however, courts and scholars have paid little systematic attention to the ways in which these functionality screens operate across and within IP law.

We have four tasks in …

Forgetting Functionality, Christopher Buccafusco, Jeanne C. Fromer

Faculty Scholarship

In Star Athletica, LLC v. Varsity Brands, Inc., the U.S. Supreme Court had an opportunity to clarify copyright law’s treatment of product designs that incorporate functionality. Its opinion failed to do so in a host of different ways. In this comment (as part of the symposium From Shovels to Jerseys: A Guide to Apply Star Athletica v. Varsity Brands), we address just one of the opinion’s shortcomings: its failure to adequately define and distinguish between a design’s functional and expressive features. Not only does the Court’s neglect produce uncertainty for creators, litigants, and judges, the opinion makes it substantially easier …

Review Of What's Wrong With Copying? By Abraham Drassinower, Jessica Silbey

Faculty Scholarship

There are several radical aspects of Abraham Drassinower’s book WHAT’S WRONG WITH COPYING? One is that he shoves to the side the question of copyright incentives and the economic theory of intellectual property law, both long-standing starting points for copyright theory and doctrine. Drassinower makes no intellectual apologies for this sidelining and justifies it by the second radical aspect of his book: he claims to be exploring copyright law on its own terms, not on terms from outside copyright (economics or behavioral incentives) but from internal to copyright law as written and developed since the Statute of Anne.1 This he …

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” …