Law Commons^™

Infringement Once Removed: The Perils Of Hyperlinking To Infringing Content, Stacey Dogan

Faculty Scholarship

This Article contends that the basic premise of Sony---that context and effect must play a role in evaluating allegations of secondary liability for copyright infringement-has application beyond the isolated case of equipment manufacture. More specifically, I propose a modified Sony framework for evaluating secondary liability for linking to infringing content. While this approach repudiates the strict view of secondary liability in favor of a more nuanced analysis, it stops short of advocating wholesale immunity for linkers. To the contrary, I contend that certain links, like certain acts of direct infringement, threaten copyright law's incentives with few compensating benefits to the …

Excuse And Justification In The Law Of Fair Use: Commodification And Market Perspectives, Wendy J. Gordon

Faculty Scholarship

Over twenty years ago, the Journal of the Copyright Society of the U.S.A. reprinted my article, "Fair Use as Market Failure" (82 Columbia Law Review 1600 (1982), available at: https://ssrn.com/abstract=3577724. That 1982 piece suggested that an underlying pattern governs the protean forms of "fair use", and I employed the notion of market failure to reveal and explain how the pattern functioned. Since then, some misunderstandings of my argument have arisen.

I am pleased to publish in this, the Fiftieth Anniversary issue of the Journal of the Copyright Society, a clarification – and partial amendment – of my position. As …

Authors, Publishers And Public Goods: Trading Gold For Dross, Wendy J. Gordon

Faculty Scholarship

The article seeks to clarify what is at stake - and what is not - in the litigation challenging the constitutional validity of the Sonny Bono Copyright Term Extension Act (CTEA). First, the article distinguishes between the CTEA's retrospective term extension of copyright term and the retrospective extensions enacted by prior Congresses. The article suggests that the CTEA provisions are constitutionally questionable in ways that earlier retrospective extensions may not have been. To hold the CTEA unconstitutional would not make all other term extensions vulnerable.

Second, the article shows how non-creative physical activities such as digitization and film preservation have …