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Full-Text Articles in Law
The Questionable Use Of Custom In Intellectual Property, Jennifer E. Rothman
The Questionable Use Of Custom In Intellectual Property, Jennifer E. Rothman
All Faculty Scholarship
The treatment of customary practices has been widely debated in many areas of the law, but there has been virtually no discussion of how custom is and should be treated in the context of intellectual property (IP). Nevertheless, customs have a profound impact on both de facto and de jure IP law. The unarticulated incorporation of custom threatens to swallow up IP law, and replace it with industry-led IP regimes that give the public and other creators more limited rights to access and use intellectual property than were envisioned by the Constitution and Congress. This article presents a powerful critique …
Fair Use, "Fared Use," And Public Rights: Amending Section 107 - Draft - 08-19-2007, Wendy J. Gordon
Fair Use, "Fared Use," And Public Rights: Amending Section 107 - Draft - 08-19-2007, Wendy J. Gordon
Scholarship Chronologically
Under provocative titles like "Fared Use', and '"the end of friction," commentators argue about the viability of copyright's fair use doctrine in a word of instantaneous transactions. As collecting societies such as the Copyright Clearance Center extend their licensing prowess, and Internet-based electronic commerce has made it possible to purchase digital copies with the click of a mouse, the suggestion is sometimes made that fair use could or should disappear. Decisions in the Second and Sixth Circuits have hinted that fair use may be foreclosed if a licensing market exists or is possible. The presence of "traditional, reasonable, or likely …
Draft Of Fair Use And Face-To-Face Bargaining - 2007, Wendy J. Gordon
Draft Of Fair Use And Face-To-Face Bargaining - 2007, Wendy J. Gordon
Scholarship Chronologically
Alex has a ten-year-old cassette of a favorite movie. Unfortunately, she does not have a video cassette player. She wants to copy the movie onto her iPod. To do this, she borrows a VCR from a friend, runs a cable to a video capture port on my computer, reformats the file into something the iPod can read, and sends the file to the iPod, which she will use to watch the movie in the future. After the file is securely on the iPod, she will delete all records of the movie from my computer. Destroy the original VHS copy seems …
Why Custom Cannot Save Copyright's Fair Use Defense, Jennifer E. Rothman
Why Custom Cannot Save Copyright's Fair Use Defense, Jennifer E. Rothman
All Faculty Scholarship
This article is a short reply to Richard Epstein's comments on my article, The Questionable Use of Custom in Intellectual Property, 93 Virginia Law Review 1899 (2007). In the underlying article, I critique the general preference of courts to incorporate customary practices into intellectual property law. In this reply, I disagree with Professor Epstein's claim that custom should be dispositive in some instances to determine the scope of copyright's fair use defense. Although I observe that for some individual parties various customary practices may be cost-effective, their incorporation into the law expands the scope of copyright in ways that unreasonably …
Reason Or Madness: A Defense Of Copyright's Growing Pains, Marc H. Greenberg
Reason Or Madness: A Defense Of Copyright's Growing Pains, Marc H. Greenberg
Publications
A growing conflict between the creators and owners of expressive works protected by copyright law and the community of users and distributors of those works has focused on whether the law is so restrictive that it no longer meets the constitutional mandate that intellectual property law should serve to promote the growth and development of useful and expressive works. Has the scope of copyright's growth been reasonable, or are its restrictions madness, and harmful to the development and distribution of art? This article explores the seven leading criticisms leveled against copyright's expansion, and examines one recent effort at legislative reform …
Accidental Rights, James Gibson
Accidental Rights, James Gibson
Law Faculty Publications
Written for the Yale Law Journal's online Pocket Part, this is a much shorter and (I hope) more accessible iteration of my earlier paper, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007). It summarizes that paper's central point - i.e., that intellectual property entitlements are growing not just because of expansive court decisions and legislative enactments, but also because of seemingly sensible, risk-averse licensing decisions that inadvertently feed back into legal doctrine - and then explores how this phenomenon might apply to (and be manipulated by) enterprises such as Google Book Search.
Fair Use Harbors, Gideon Parchomovsky, Kevin A. Goldman
Fair Use Harbors, Gideon Parchomovsky, Kevin A. Goldman
All Faculty Scholarship
The doctrine of fair use was originally intended to facilitate those socially optimal uses of copyrighted material that would otherwise constitute infringement. Yet the application of the law has become so unpredictable that would-be fair-users can rarely rely on the doctrine with any significant level of confidence. Moreover, the doctrine provides no defense for those seeking to make fair uses of material protected by anti-circumvention measures. As a result, artists working in media both new and old are unable to derive from copyrighted works the full value to which the public is entitled. In this Essay, we propose a solution …
Creative Reading, Jessica D. Litman
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 …
Why The Customer Isn’T Always Right: Producer-Based Limits On Rights Accretion In Trademark, Rebecca Tushnet
Why The Customer Isn’T Always Right: Producer-Based Limits On Rights Accretion In Trademark, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
In this article the author responds to James Gibson’s article Risk Aversion and Rights Accretion in Intellectual Property Law, which offers valuable insights into the extra-judicial dynamics that have contributed to the seemingly unending expansion of copyright and trademark rights over the past few decades. Her response focuses on the trademark side of that expansion. The theoretical basis for granting trademark rights is that, if consumers perceive that a mark or other symbol indicates that a single source is responsible for a product or service—whether through physical production, licensing, sponsorship, or other approval—then the law should give effect to …
The 'Why' Of Markets: Copyright And Fair Use, Wendy J. Gordon
The 'Why' Of Markets: Copyright And Fair Use, Wendy J. Gordon
Faculty Scholarship
Jim Gibson is right that courts should be wary of letting the mere presence of licensing improperly foreclose the defense of fair use. 1 As he says, a court in a copyright infringement case should not treat the existence of a market for licenses of the work as a factor weighing against the defendant’s claim of fair use until the court has examined “why [that] licensing market exists.”2 However, Gibson fails to distinguish the varying reasons licensing might be relevant to a fair use determination. As a result, the solution he proffers— attributing relevance to licensing only in markets free …
Lawful Personal Use, Jessica D. Litman
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 …