Law Commons^™

A State Law Approach To Preserving Fair Use In Academic Libraries, David R. Hansen

Fordham Intellectual Property, Media and Entertainment Law Journal

Every year academic libraries spend millions of dollars to provide their users access to copyrighted works. Much of that money goes not toward purchasing physical copies of books or journals, but toward licensing electronic content from publishers. In those electronic license agreements, the default rules for how users interact with copyrighted content is often altered, and academic library users are deprived of basic rights — especially rights such as fair use — which are granted under federal copyright law. The literature is flush with discussion of the misuse of private contracts to alter the rights granted by Congress in copyright’s …

Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen

Alfred C. Yen

In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright’s development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright’s natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.

Using Public Disclosure As The Vesting Point For Moral Rights Under The Visual Artists Rights Act, Elizabeth M. Bock

Michigan Law Review

In 2010, the Court of Appeals for the First Circuit confronted the novel question of when moral rights protections vest under the Visual Artists Rights Act. In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Bichel, the First Circuit determined that the protections of the Visual Artists Rights Act begin when a work is "created" under the Copyright Act. This Note argues that this decision harms moral rights conceptually and is likely to result in unpredictable and inconsistent decisions. This Note proposes instead that these statutory protections should vest when an artist determines that his work is complete and presents …

The (Final) Anti-Counterfeiting Trade Agreement (Acta): Ruthless Or Toothless?, Tammy W. Cowart

Accounting, Finance & Business Law Faculty Publications and Presentations

This paper will discuss several provisions of ACTA and its intersection with U. S. copyright law. Section II will discuss general provisions of copyright law, section III will address the various international intellectual property law treaties, and section IV will discuss three main areas addressed by ACTA: criminal liability, internet service providers, and technological protection measures. Section IV will also discuss how these areas conflict with or advance U.S. copyright law.

The Not So Great Wall Of China: Intellectual Property Enforcement Issues March On In The People’S Republic, Anna K. Liu

Anna Liu

No abstract provided.

Paying It Forward: The Case For A Specific Statutory Limitation On Exclusive Rights For User-Generated Content Under Copyright Law, Warren Bartholomew Chik Asst. Prof. Of Law

Warren Bartholomew Chik

This article examines the User-Generated Content (UGC) phenomena and the significance of re-inventions in the context of an increasingly user-centric Internet environment and an information sharing society. It will explain the need to provide a statutory limitation in the form of an exception or exemption for socially beneficial UGC on the exclusive rights under copyright law. This will also have the effect of protecting the Internet intermediary that hosts and shares UGC. Nascent but abortive attempts have been made by Canada to introduce just such a provision into her copyright legislation, while some principles and rules have also emerged from …

Paying It Forward: The Case For A Specific Statutory Limitation On Exclusive Rights For User-Generated Content Under Copyright Law, Warren Bartholomew Chik Asst. Prof. Of Law

Warren Bartholomew CHIK

This article examines the User-Generated Content (UGC) phenomena and the significance of re-inventions in the context of an increasingly user-centric Internet environment and an information sharing society. It will explain the need to provide a statutory limitation in the form of an exception or exemption for socially beneficial UGC on the exclusive rights under copyright law. This will also have the effect of protecting the Internet intermediary that hosts and shares UGC. Nascent but abortive attempts have been made by Canada to introduce just such a provision into her copyright legislation, while some principles and rules have also emerged from …

Rethinking The Anti-Counterfeiting Trade Agreement Copyright Criminal Enforcement Measures, Miriam Bitton

Miriam Bitton

A few developed countries have secretly initiated and negotiated the Anti-Counterfeiting Trade Agreement (ACTA). The ACTA is aimed at enhancing international copyright and trademark enforcement measures. The Article analyses the copyright dimension of ACTA, considering its various provisions and the rationale behind them. The article does so by thoroughly examining the complex intersection of intellectual property law and criminal law. The Article then draws a few major conclusions and makes contributions to the area of copyright law: it shows how the ACTA in fact merely mimics the U.S. approach towards criminal enforcement of copyright law. Second, and more importantly, it …

Toward A Trips Truce, Patricia L. Judd

Michigan Journal of International Law

The World Trade Organization's (WTO's) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS or Agreement), now over fifteen years old, regulates a marketplace characterized by extraordinary dynamism, influenced by the constant forces of globalization and technological evolution. Attempts to regulate this market raise natural, persistent questions concerning the Agreement's ability to serve its respective constituencies and adapt to change. The Agreement operates in the midst of an age-old dynamic pitting developing and developed countries against one another, especially when it comes to domestic enforcement against piracy and counterfeiting-a dynamic in which TRIPS has been criticized as a one-sided instrument. …

Protection For Informational Works After Feist Publications, Inc. V. Rural Telephone Service Co., Miriam Bitton

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Moral Rights And Supernatural Fiction: Authorial Dignity And The New Moral Rights Agendas, Jacqueline D. Lipton Ph.D.

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, several scholars have revisited the question of moral rights protections for creators of copyright works in the United States. Their scholarship has focused on defining a moral rights agenda that comports with American constitutional values, as well as being practically suited to current copyright business practices. Much of this scholarship has prioritized a right of attribution over other moral rights, such as the right of integrity. This Article evaluates some of these recent moral rights models in light of a sample of comments made by American supernatural fiction authors about their works. The Author questions whether the …

Technical Knockout: How Mixed Martial Arts Will Change Copyright Enforcement On The Web, Keith Black

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Innovative Copyright, Greg Lastowka

Michigan Law Review

For over a decade, Michael Carrier has been exploring the intersection of antitrust and intellectual property ("IP") law, contributing many articles that offer new solutions and approaches to the vexing problems confronting the law of innovation. Carrier's academic writing is situated in a voluminous scholarly discourse about the appropriate rules and goals of the laws of copyright, patent, and antitrust. While Carrier easily could have written an "insider" tome for specialists in this area, his new book, Innovation for the 21st Century, is targeted at a broader audience. Carrier's book is directed at legislators, jurists, and opinion makers-as well as …

Let The Public Speak: Public Domain As Default, Miriam Bitton

Miriam Bitton

The introduction of digital technologies has significantly challenged intellectual property law systems. One of the most troubling phenomena is the attack on the public domain (PD). The PD has been traditionally perceived as a major foundation for further creation and development and thus, as something that should be preserved and enlarged. Unfortunately, the introduction of information technologies changed this reality to such an extent that fewer works now become part of the PD. This article introduces a new approach for handling the problem of the PD, suggesting some innovative methods that would facilitate the effective dedication of materials to the …

Databases And Dynamism, Michal Shur-Ofry

University of Michigan Journal of Law Reform

Databases are generally perceived in legal scholarship as static warehouses, storing up valuable facts and information. Accordingly, scholarship on copyright protection of databases typically concentrates on the social need to access their content. This Article seeks to shift the focus of the debate, arguing that the copyrightdatabases debate is not merely a static "access to information" story. Instead, it is a dynamic story of relations, hierarchies, and interactions between pieces of information, determined by database creators. It is also a story of patterns, categories, selections, and taxonomies that are often invisible to the naked eye, but that influence our perceptions …

Making Virtual Copyright Work, Matthew R. Farley

Golden Gate University Law Review

This Article proposes measures that attempt to strike the balance between creation and access. The virtual-world community is not likely to persevere with the little copyright protection it currently enjoys. Creativity will dwindle and the rich, energetic settings that make virtual worlds so attractive to businesses and entertainers will follow suit. At the same time, because much of the creativity in virtual worlds is derivative in nature, virtual creators are also unlikely to benefit from strong copyright protections. Therefore, current interpretation of copyright law must be revisited and revised before applying it to virtual worlds. Part I details virtual worlds …

The Endowment Effect In Ip Transactions: The Case Against Debiasing, Ofer Tur-Sinai

Michigan Telecommunications & Technology Law Review

This Article contains a critical discussion of recent studies by Christopher Buccafusco and Christopher Sprigman concerning the role of the endowment effect in intellectual property transactions. According to the thesis presented in these studies, the existence of an endowment effect in the markets for IP goods causes inefficiencies. In order to counteract such inefficiencies, the authors argue, IP rights must be weakened in various ways, including shifting toward liability rules, adding formalities in copyright law, and expanding the fair use doctrine. The thesis as presented is groundbreaking and would have broad implications. This Article, however, points out several shortcomings of …

Hatch-Waxmanizing Copyright, Michal Shur-Ofry

Michigan Telecommunications & Technology Law Review

This Essay presents a novel proposal for counter balancing "copyright overspills." In the background of the discussion is the common reality of users succumbing to rights holders' attempts to license uses which are most likely fair uses or completely free of copyright protection. These practices have attracted considerable attention in recent literature. Most scholarly proposals in this context emphasize the need to clarify the contours of the fair use doctrine and to remove doctrinal ambiguities. Yet these initiatives are probably insufficient to overcome users' risk aversion in copyright markets due to an inherent structural imbalance within copyright law. While the …

Paper Tigers: Rethinking The Relationship Between Copyright And Scholarly Publishing, Alissa Centivany

Michigan Telecommunications & Technology Law Review

Discontent is growing in academia over the practices of the proprietary scholarly publishing industry. Scholars and universities criticize the expensive subscription fees, restrictive access policies, and copyright assignment requirements of many journals. These practices seem fundamentally unfair given that the industries' two main inputs-articles and peer-review-are provided to it free of charge. Furthermore, while many publishers continue to enjoy substantial profit margins, many elite university libraries have been forced to triage their collections, choosing between purchasing monographs or subscribing to journals, or in some cases, doing away with "non-essential" materials altogether. The situation is even more dire for non-elite schools, …

The Legality Of Free And Open Source Software Licenses: The Case Of Jacobsen V. Katzer, Brian Fitzgerald, Rami M. Olwan

Rami M Olwan

No abstract provided.

The Yang Obeys, But The Yin Ignores: Copyright Law And Speech Suppression In The People's Republic Of China, Stephen J. Mcintyre

Stephen J McIntyre

Copyright law can serve to either promote or restrict free speech: while copyright preserves economic incentives to create and publish new expression, it also fences off expression from public use. For this reason, the effect of copyright law on speech in a given country depends on the particular manner in which it is understood, legislated, and enforced. This Article argues that copyright law in the People’s Republic of China serves as a tool for speech suppression and censorship. Whereas China has engaged in official censorship for thousands of years, there has historically been little appreciation for proprietary rights in art …

Nexus Crystals: Crystallizing Limits On Contractual Control Of Virtual Worlds, Joshua A.T. Fairfield

Scholarly Articles

Can a video game developer or publisher successfully sue a video game player for copyright infringement for not “playing a game nicely,” “cheating,” or “buying software from a third party”? This article suggests a new reason why it cannot.

The founding social contract of the new millennium is the End User License Agreement (EULA), not the U.S. Constitution. Website terms of use (TOU) and software EULAs now have an enormous impact on how citizens must act and how their rights and redresses are defined. EULAs contain not only traditional intellectual property licensing conditions but complicated directives regarding what members of …

Book Review. European Copyright Law: A Commentary., Marshall A. Leaffer

Articles by Maurer Faculty

No abstract provided.

The (Im)Possibility Of "Standard Technical Measures" For Ugc Websites, Laura G. Gallo

Kernochan Center for Law, Media, and the Arts

In today’s highly litigious legal landscape, one might doubt that there could ever be an “open, fair, voluntary” agreement between copyright owners and service providers to police infringement. Congress nevertheless envisioned such a consensus when it developed § (i) of the Digital Millennium Copyright Act (DMCA): “Conditions for [Safe Harbor] Eligibility.” An often-overlooked provision of the DMCA, § 512(i) directs right holders and Internet service providers to work together and agree on “standard technical measures” to “identify or protect copyrighted works.” In addition to being the product of consensus, these measures must be “available ... on reasonable and nondiscriminatory terms” …

Audiovisual Works And The Work For Hire Doctrine In The Internet Age, John L. Schwab

Kernochan Center for Law, Media, and the Arts

The work for hire doctrine is a legal mechanism by which the creator of an artistic work’s employer is deemed the author of that work. While, historically, such employer ownership schemes were not recognized by courts, today the work for hire doctrine is a firmly embedded part of American copyright law. In particular, work for hire has developed into an essential tool of the audiovisual entertainment industry. As discussed in Part I.B, infra, there are a number of reasons that work for hire is a particularly useful ownership allocation scheme for audiovisual works.

Modern technological developments are, however, rapidly altering …

The Right To Remain Anonymous: Anonymous Speakers, Confidential Sources And The Public Good, Jocelyn Hanamirian

Kernochan Center for Law, Media, and the Arts

In the digital age, the news media gives voice to anonymous speakers in two ways: reporters may extend confidentiality to sources in exchange for newsworthy information, or a news website may host an online comment function that allows readers to post their reactions to content pseudonymously. Of these two groups of anonymous speakers, only online posters enjoy certain First Amendment protection against a subpoena seeking disclosure of their identities.

The reporter’s privilege has always been legally defined as the professional privilege of a reporter to maintain the confidentiality of his sources. Yet as with all evidentiary privileges, the reporter’s privilege …

The Kindle Controversy: An Economic Analysis Of How The Amazon Kindle's Text-To-Speech Feature Violates Copyright Law, Jeremy B. Francis

Vanderbilt Journal of Entertainment & Technology Law

In 2009, Amazon released the Kindle 2 with a text-to-speech feature. This feature allows users of the Kindle 2 to download software to the device that will read e-books aloud. Authors and publishers of e-books immediately objected to the feature, arguing that it essentially created an unauthorized audiobook. Amazon maintained the legality of the text-to-speech feature, arguing that it does not copy, perform, or create a derivative work. Amazon decided to avoid a legal battle by allowing rightsholders to decide whether to enable the text-to-speech feature for each individual title. The copyright community, however, responded swiftly and nearly unanimously, siding …

Information Wars And The Challenges Of Content Protection In Digital Contexts, Raymond T. Nimmer

Vanderbilt Journal of Entertainment & Technology Law

We are in the midst of a fundamental conflict in law and policy between those who favor maintaining and expanding copyright and related rights in the digital context ("rights enhancers"), and those who favor letting rights atrophy ("rights restrictors'). This Article argues that strong intellectual property rights are essential. At minimum, they are important to support creativity in contexts where the creation, collection, or distribution of the content requires substantial investment of time and resources. The case for allowing creators' rights to weaken is both untested and structurally suspect. Copyright law must construct a balance that fully supports creative activity …

"European Copyright Code" – Back To First Principles (With Some Additional Detail), Jane C. Ginsburg

Faculty Scholarship

The "Wittem Group" of copyright scholars has proposed a "European Copyright Code," to "serve as an important reference tool for future legislatures at the European and national levels." Because, notwithstanding twenty years of Directives and a growing ECJ caselaw, copyright law in EU Member States continues to lack uniformity, the Wittem Group’s endeavor should be welcomed, at least as a starting point for reflection on the desirable design of an EU copyright regime. Whether or not the proposed Code succeeds in influencing national or Community legislation, it does offer an occasion to consider the nature of the rights that copyright …

A New Uneasy Case For Copyright, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Justice Stephen Breyer’s The Uneasy Case for Copyright is known for calling the attention of policymakers and scholars to the incentives-access paradigm of copyright law. Less-discussed, however, is its suggestion that copyright protection might inefficiently draw resources into the creation of copyrightable works given the potential spillover benefits of alternative uses to which creators might otherwise put their time. Although a full study of alternative career paths would be empirically challenging, one can simplify by asking what benefit society obtains from marginal copyrightable works – those that might not be created if copyright incentives were less robust – and whether …