Law Commons^™

Imaginary Bottles, Jessica Litman

Articles

This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade, and …

What We Don't See When We See Copyright As Property, Jessica Litman

Articles

For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which …

What We Don't See When We See Copyright As Property, Jessica Litman

Law & Economics Working Papers

It is becoming increasingly clear that the supposed copyright wars that copyright scholars believed we were fighting – nominally pitting the interests of authors and creators against the interests of readers and other members of the audience – were never really about that at all. Instead the real conflict has been between the publishers, record labels, movie studios, and other intermediaries who rose to market dominance in the 20th century, and the digital services and platforms that have become increasingly powerful copyright players in the 21st. In this essay, adapted from the 13th annual University of Cambridge Center for Intellectual …

Creative Commons: An Explainer, Kincaid C. Brown

Law Librarian Scholarship

Copyright protection attaches automatically to original works you create, whether a poem, photograph, painting, song, video, or essay. Copyright limits what others can do with your creative work and protects your original work from, for example, being compiled or reused and sold for profit. If you hold the copyright—and didn’t, say, create the original work in an employment context where it may be subject to being a work for hire—you may want to allow others to use your work for particular purposes. You could individually negotiate a license granting rights to each person, which would undoubtedly take more and more …

Creative Commons: An Explainer, Kincaid C. Brown

Law Librarian Scholarship

Copyright protection attaches automatically to original works you create, whether a poem, photograph, painting, song, video, or essay. Copyright limits what others can do with your creative work and protects your original work from, for example, being compiled or reused and sold for profit. If you hold the copyright—and didn’t, say, create the original work in an employment context where it may be subject to being a work for hire—you may want to allow others to use your work for particular purposes. You could individually negotiate a license granting rights to each person, which would undoubtedly take more and more …

Fetishizing Copies, Jessica Litman

Book Chapters

Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the …

Silent Similarity, Jessica D. Litman

Articles

From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form—silent movies—had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases—in particular, Nichols v. Universal Pictures—are canonical today. They are not, however, well-understood. In particular, the problem at the heart of …

Reconciling Intellectual And Personal Property, Aaron Perzanowski, Jason Schultz

Articles

This Article examines both the forces undermining copy ownership and the important functions it serves within the copyright system in order to construct a workable notion of consumer property rights in digital media.

Part I begins by examining the relationship between intellectual and personal property. Sometimes courts have treated those rights as inseparable, as if transfer of a copy entails transfer of the intangible right, or retention of the copyright entails ongoing control over particular copies. But Congress and most courts have recognized personal and intellectual property as interests that can be transferred separately. Although the better view, this approach …

Campbell At 21/Sony At 31, Jessica D. Litman

Articles

When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty …

Antibiotic Resistance, Jessica D. Litman

Articles

Ten years ago, when I wrote War Stories,' copyright lawyers were fighting over the question whether unlicensed personal, noncommercial copying, performance or display would be deemed copyright infringement. I described three strategies that lawyers for book publishers, record labels, and movie studios had deployed to try to assure that the question was answered the way they wanted it to be. First, copyright owners were labeling all unlicensed uses as "piracy" on the ground that any unlicensed use might undermine copyright owners' control. That epithet helped to obscure the difference between unlicensed uses that invaded defined statutory exclusive rights and other …

Readers' Copyright, Jessica D. Litman

Articles

My goal in this project is to reclaim copyright for readers (and listeners, viewers, and other members of the audience). I think, and will try to persuade you, that the gradual and relatively recent disappearance of readers’ interests from the core of copyright’s perceived goals has unbalanced the copyright system. It may have prompted, at least in part, the scholarly critique of copyright that has fueled copyright lawyers’ impression that “so many in academia side with the pirates.” It may also be responsible for much of the deterioration in public support for copyright. I argue here that copyright seems out …

The Copyright Principles Project: Directions For Reform, Jessica D. Litman, Pamela Samuelson, The Copyright Principles Project

Articles

Copyright law performs a number of important functions. It facilitates public access to knowledge and a wide range of uses of creative works of authorship, and, in so doing, it helps educate our populace, enrich our culture, and promote free speech, free expression, and democratic values. It provides opportunities for rights holders to recoup investments in creating and disseminating their works and to enjoy the fruits of whatever success arises from the public's uses of their works. In the process, copyright also plays a role in regulating new technologies and services through which creative works may be accessed. A well-functioning …

The Invention Of Common Law Play Right, Jessica D. Litman

Articles

This Article explores playwrights' common law "play right." Since this conference celebrates the 300th birthday of the Statute of Anne, I begin in England in the 17th Century. I find no trace of a common law playwright's performance right in either the law or the customary practices surrounding 17th and 18th century English theatre. I argue that the nature and degree of royal supervision of theatre companies and performance during the period presented no occasion (and, indeed, left no opportunity) for such a right to arise. I discuss the impetus for Parliament's enactment of a performance right statute in 1833, …

Real Copyright Reform, Jessica D. Litman

Articles

A copyright system is designed to produce an ecology that nurtures the creation, dissemination, and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners, and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this Article, I explore how the current copyright …

The Copyright Revision Act Of 2026, Jessica D. Litman

Articles

As someone who teaches and writes about copyright law, I end up straddling two different worlds. On the one hand, I really do need to understand and be able to teach the details of the copyright statute and the case law construing it. My students need to know the difference between a public performance right under Section 106(4) and a public performance right by digital audio transmission under Section 106(6); they need to know the difference between the statutory licenses available under Section 114 and the statutory licenses available under Section 115.' So, I need to have all of those …

The Politics Of Intellectual Property, Jessica D. Litman

Articles

In May 2005, Keith Aoki invited me to participate on a panel on "The Politics of Copyright Law" at the 2006 Association of American Law Schools ("A.A.L.S. ") mid-year meeting workshop on Intellectual Property in Vancouver, British Columbia. The panel, renamed "The Politics of Intellectual Property," and moderated by Keith, included talks by Justin Hughes, Mark Lemley, Jay Thomas, and me, and it was followed by three concurrent sessions on "The Politics Concerning Moral Rights," "The Politics of Global Intellectual Property, " and "The Politics of Patent Reform." I'm not sure what the organizing committee had in mind when it …

Intellectual Liability, Daniel A. Crane

Articles

Intellectual property is increasingly a misnomer since the right to exclude is the defining characteristic of property and incentives to engage in inventive and creative activity are increasingly being granted in the form of liability rights (which allow the holder of the right to collect a royalty from users) rather than property rights (which allow the holder of the right to exclude others from using the invention or creation). Much of this recent reorientation in the direction of liability rules arises from a concern over holdout or monopoly power in intellectual property. The debate over whether liability rules or property …

Tactics And Terms In The Negotiation Of Electronic Resource Licenses, Kincaid C. Brown

Law Librarian Scholarship

This chapter introduces the reader to the realm of electronic resource license agreements. It provides the reader with an overview of basic contract law as it relates to electronic resource licensing. The chapter then discusses the electronic resource license negotiation process as well as license agreement term clauses. The aim of this chapter is to provide librarians with an understanding of basic licensing concepts and language in order to aid librarians in the review and negotiation of their own license agreements. The author hopes to impart lessons and tips he has learned in reviewing and negotiating license agreements with a …

Choosing Metaphors, Jessica Litman

Book Chapters

The copyright law on the books is a large aggregation of specific statutory provisions; it goes on and on for pages and pages. When most people talk about copyright, though, they don't mean the long complicated statute codified in title I7 of the U.S. Code. Most people's idea of copyright law takes the form of a collection of principles and norms. They understand that those principles are expressed, if sometimes imperfectly, in the statutory language and the case law interpreting it, but they tend to believe that the underlying principles are what count. It is, thus, unsurprising that the rhetoric …

Billowing White Goo, Jessica D. Litman

Articles

The title of this symposium is the question: "Fair Use: "Incredibly Shrinking" or Extraordinarily Expanding?" I'd argue that the answer to the question is "no." Fair use isn't doing either. The size of the fair use footprint has stayed remarkably constant over the past 30 or even 50 years. What has expanded, extraordinarily, is the size of rights granted by the copyright law. It may seem as if fair use is either expanding or shrinking, because the greater reach of copyright has made a bunch of uses potentially fair that weren't even potentially infringing 50 years ago. In order to …

Creative Reading, Jessica D. Litman

Articles

Let me begin with something that Jamie Boyle wrote ten years ago in Intellectual Property Policy Online: A Young Person's Guide:' Copyright marks the attempt to achieve for texts and other works a balance in which the assumption of the system is that widespread use is possible without copying. The relative bundles of rights of the user and the owner achieve their balance based on a set of economic and technical assumptions about the meaning of normal use. For our purposes, I would like to generalize this as something that Boyle might have written if he had not in that …

Lawful Personal Use, Jessica D. Litman

Articles

Despite having sued more than 20,000 of its customers,2 the recording industry wants the world to know that it has no complaint with personal use. Copyright lawyers of all stripes agree that copyright includes a free zone in which individuals may make personal use of copyrighted works without legal liability.3 Unlike other nations, though, the United States hasn't drawn the borders of its lawful personal use zone by statute.4 Determining the circumstances under which personal use of copyrighted works will be deemed lawful is essentially a matter of inference and analogy, and differently striped copyright lawyers will differ vehemently on …

War And Peace: The 34th Annual Donald C. Brace Lecture, Jessica D. Litman

Other Publications

I'd like to thank the Copyright Society and the Brace committee for inviting me to speak to you this evening. I am honored that you invited me to give this lecture. I want to talk a little bit about war - copyright war - and then I want to talk a little bit about peace. It's become conventional that we're in the middle of a copyright war.' I tried to track down who started calling it that, and what I can tell you is that about ten years ago, about the time that copyright lawyers everywhere were arguing about the …

The Story Of Sony V. Universal Studios: Mary Poppins Meets The Boston Strangler., Jessica Litman

Book Chapters

Sony v. Universal Studios may be the most famous of all copyright cases. People who know nothing about copyright know that the Sony-Betamax case held that home videotaping of television programs is fair use. Paradoxically, although the Supreme Court granted certiorari in the case to decide whether the copyright law permitted consumers to engage in private home copying of television programs, the majority ended up crafting its analysis to avoid answering that question definitively. Instead, it ruled that even if consumers sometimes violated the copyright law when they taped television programs off the air, that violation did not make the …

Harnessing And Sharing The Benefits Of State-Sponsored Research: Intellectual Property Rights And Data Sharing In California's Stem Cell Initiative, Rebecca S. Eisenberg, Arti K. Rai

Articles

This Article discusses data sharing in California's stem cell initiative against the background of other data sharing efforts and in light of the competing interests that CIRM is directed to balance. We begin by considering how IP law affects data sharing. We then assess the strategic considerations that guide the IP and data policies and strategies of federal, state, and private research sponsors. With this background, we discuss four specific sets of issues that public sponsors of data-rich research, including CIRM, are likely to confront: (1) how to motivate researchers to contribute data; (2) who should have access to the …

The Economics Of Open Access Law Publishing, Jessica D. Litman

Articles

The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. Recently, we have seen a number of high-profile experiments seeking to use one of a variety of forms of open access scholarly publishing to develop an alternative model. Critics have not quarreled with the goals of open access publishing; instead, they've attacked the viability of the open access business model. If we are examining the economics of open access publishing, we shouldn't limit ourselves to the question whether open access journals have fielded a …

A Guide To U.S. Intellectual Property Searching Online, Jennifer L. Selby

Law Librarian Scholarship

The disadvantage to searching intellectual property online, patents in particular, is that the available online databases do not encompass the array and extent of tools needed to conduct a comprehensive search.7 Essentially, you can search patents on the web, but you cannot do a true patent search. A complete patentability search must include not only U.S. patents, but foreign patents and all relevant non-patent literature also (all resources together are referred to as ‘‘prior art’’ for an invention).8 These additional resources can be researched at the Patent Office Library in Washington D.C., and, on a more limited basis, at a …

Copyright Non–Compliance (Or Why We Can’T “Just Say Yes” To Licensing)., Jessica D. Litman

Book Chapters

I have complained more than once over the past few years that the copyright law is complicated, arcane, and counterintuitive; and that the upshot of that is that people don't believe that the copyright law says what it does say. People do seem to buy into copyright norms, but they don't translate those norms into the rules that the copyright statute does; they find it very hard to believe that there's really a law out there that says the stuff the copyright law says.

Digital Copyright And The "Progress Of Science, Jessica D. Litman

Articles

Let me start with a truism: Networked digital technology has transformed information and the way we interact with it. Digital information is dynamic rather than fixed. What we think of as “documents” can change constantly. That’s challenged our notions of what it means to archive material.

Copyright And International Trips Compliance (Symposium: Fifth Annual Conference On International Intellectual Property Law And Policy), Shira Perlmutter, Jerome H. Reichman, Whitmore Gray

Other Publications

MS. PERLMUTTER: We have heard today about copyright in two different regions of the world, in Central and Eastern Europe' and in China. In recent years there has been an increasing convergence in the substance of national laws in different regions of the world. One of the major factors has been the TRIPs Agreement? I will focus on the current efforts toward implementing the TRIPs Agreement, and this will be a procedure-oriented talk.