Law Commons^™

The Dmca And Repeat Infringers, James Gibson

Law Faculty Publications

The recent agreement between big media companies and big Internet service providers (ISPs) concerning online copyright infringement has the law and technology world abuzz. ISPs like Comcast, Verizon, and Time Warner Cable have agreed to implement a system under which subscribers who repeatedly and illegally download copyrighted content will have their Internet access impeded and maybe even terminated.

This is big news, and it will probably receive more attention in this IP Viewpoints series. But the purpose of this column is to put this agreement in context, because much of what the companies have agreed to do appears to be …

Gray-Market Goods And Copyright's Gray Area, James Gibson

Law Faculty Publications

Copyright law generally gives authors no control over the aftermarket for their goods. Suppose I write a book, and I sell you a copy of it. You are free to resell the book, or lend it to a friend, or give it away. That’s because as long as your copy is “lawfully made under this title” (that is, made with my authorization under U.S. law), then copyright has nothing to say about its further distribution – who owns it, who sells it to whom, etc.

This notion is known as the first sale doctrine. It is so named because at …

The Upside Of Intellectual Property's Downside, Christopher A. Cotropia, James Gibson

Law Faculty Publications

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This Article turns the traditional discussion on its head and shows that intellectual property’s putative costs …

The Rebirth Of Copyright As An Opt-In System?, James Gibson

Law Faculty Publications

For most of the history of Anglo-American copyright law, copyright was an opt-in system: Authors had to jump through certain regulatory hoops if they wanted to prevent others from copying their works without consent. These threshold formalities included registering their works with a government agency, affixing a notice to published copies, depositing exemplars with a centralized library, and more. A failure to comply with the requirements usually meant a diminution in the authors’ copyright entitlement – and in some cases a wholesale forfeiture, under which the works would pass immediately into the public domain.

After some 200 years, however, U.S. …

Viacom V. Youtube: A Different View On The District Court Ruling, James Gibson

Law Faculty Publications

In an earlier essay in this series, Randy Picker discussed the recent copyright decision in Viacom v. YouTube, and in particular the court’s ruling that the Digital Millennium Copyright Act’s “safe harbor” for remote storage applies to YouTube’s online video service. I agree with Randy that the court’s interpretation of the DMCA is problematic, but I see a good argument that the outcome is correct and that the ruling should be affirmed on appeal.

Viacom v. YouTube is a hugely important case. It pits the world’s fourth-biggest media company against Internet behemoth Google, which purchased YouTube in 2006 for $1.65 …

Copyright As Censorship - Part Ii, James Gibson

Law Faculty Publications

2010 marks the 300th anniversary of the Statute of Anne, the English legislation that ushered in the modern era of copyright law. The Statute of Anne is celebrated for a number of reasons, and perhaps foremost among them is its rejection of copyright as an instrument of censorship. In a previous essay in this series, I discussed one way in which copyright law historically acted as an instrument of censorship: its refusal to grant protection to works that courts judged immoral. In this essay, I discuss copyright’s role in facilitating a different kind of censorship: lawsuits in which a copyright …

Reproduction, Distribution, And "Making Available", James Gibson

Law Faculty Publications

When an individual makes a music or movie file available for downloading by others, without the permission of the copyright owner, is that an infringing act? Or does infringement take place only when the file is actually downloaded?

This thorny copyright issue is at the heart of much of the controversy over file-sharing. It’s relatively simple for a copyright owner to prove that a file has been made available for download, but it’s much harder to prove that a download has actually occurred. So if liability attaches to the mere act of “making available,” record labels and movie studios will …

Who's Afraid Of The Berne Convention?, James Gibson

Law Faculty Publications

A few months ago, I wrote an essay for this series that argued for reinstatement of formalities as a prerequisite to copyright protection. I left unaddressed one of the main objections to such a system: the fact that international law is unfriendly to formalities. I address that objection here.

The most pertinent international law is the Berne Convention, a multilateral treaty that dates to the 1800s. Since 1908, Article 5(2) of the treaty has prevented any signatory nation from requiring formalities such as registration and notice as a condition of copyright protection. It was the United States’ accession to the …

Formalities And Tiered Copyright Protection, James Gibson

Law Faculty Publications

In my last IP Issues entry, I discussed the advantages of reinstating formalities as prerequisites to copyright protection. In this entry, I will suggest one way in which this reinstatement might take place.

For most of modern copyright law’s existence, a work of expression received copyright protection only if the author complied with several formalities, such as registering the work with a government agency and placing a copyright notice on each copy of the work (the ubiquitous C-in-a-circle).

These formalities served two functions. The first is what I call the “threshold” function: They gave the author a chance to demonstrate …

Preserving And Ensuring Long-Term Access To Digitally Born Legal Information, Sarah Rhodes, Dana Neacsu

Law Faculty Publications

Written laws, records and legal materials form the very foundation of a democratic society. Lawmakers, legal scholars and everyday citizens alike need, and are entitled, to access the current and historic materials that comprise, explain, define, critique and contextualize their laws and legal institutions. The preservation of legal information in all formats is imperative. Thus far, the twenty-first century has witnessed unprecedented mass-scale acceptance and adoption of digital culture, which has resulted in an explosion in digital information. However, digitally born materials, especially those that are published directly and independently to the Web, are presently at an extremely high risk …

Amazon's Kindle 2: The Copyright Ghost In The Machine, James Gibson

Law Faculty Publications

A number of copyright controversies have caught the public’s eye this year — e.g., the lawsuit over the AP photo of Barak Obama, the feud between Coldplay and Joe Satriani, the debate about Facebook’s policies toward the intellectual property of its users. Yet these disputes, fascinating though they are, involve the application of well-known legal principles. The facts are interesting, but the law is straightforward.

A somewhat less prominent controversy, however, offers a nice example of the frequent collision between copyright law, established business models, and new technologies. In February, Amazon introduced the Kindle 2 — the latest model of …

The Case For (Considering) Regulation Of Technology, James Gibson

Law Faculty Publications

Given a choice, which would you prefer: A world in which it is easier to encrypt information than to decrypt it? A world in which decryption is easier than encryption? A world in which the two stand in a cost/benefit equipoise?

When the question is put like that, the answer seems to depend on how we weigh certain core values. For example, if we prefer privacy over order, we might prefer the first world. If we value order more than privacy, perhaps the second world is more to our liking.

As it happens, we live in the first world. Modern …

Copying In Patent Law, Christopher A. Cotropia

Law Faculty Publications

Patent law is virtually alone in intellectual property (IP) in punishing independent development. To infringe a copyright or trade secret, defendants must copy the protected IP from the plaintiff, directly or indirectly. But patent infringement requires only that the defendant's product falls within the scope of the patent claims. Not only doesn't the defendant need to intend to infringe, but the defendant may be entirely unaware of the patent or the patentee and still face liability. Nonetheless, copying does play a role in some subsidiary patent doctrines, including damages rules, willfulness, and obviousness. More significantly, the rhetoric of patent law …

Using Ip To Suppress Innovation (On Purpose), James Gibson

Law Faculty Publications

In this “IP Viewpoints” post, I hope to combine two Uncontroversial Premises to reach a Counterintuitive Conclusion about the role that intellectual property can play in the regulation of innovation.

First Uncontroversial Premise: IP is a useful tool for creating incentives to innovate, but too much IP protection is counterproductive.

Giving innovators exclusive control over certain uses of their innovations allows them to commercialize their inventiveness and creativity, and thus helps ensure a return of the resources they invest in their craft. But IP protection also brings with it certain costs – and when IP rights reach a certain level …

Two Copyright Lessons From A Pop Music Controversy, James Gibson

Law Faculty Publications

People who study copyright law for a living must frequently endure the disappointment of seeing an interesting case settle out of court. For example, lurking behind the current Google Books controversy is a fascinating fair use argument – but if the proposed settlement manages to survive antitrust and other challenges, no court will ever have a chance to rule on the fair use issue. And scholars like me will be left wondering what might have been (and whether the settlement actually prejudices future fair use arguments).

Sometimes, however, even a settlement teaches us something about the law. The recent lawsuit …

Copyright As Censorship - Part I, James Gibson

Law Faculty Publications

2010 marks the 300th anniversary of the Statute of Anne, the English legislation that ushered in the modern era of copyright law. The Statute of Anne is celebrated for a number of reasons, and perhaps foremost among them is its rejection of copyright as an instrument of censorship.

Before Parliament enacted the Statute, the distribution of books was controlled by the government through royal charters, which granted monopolies over printing and empowered the chartered firms to seize unauthorized books and bring their publishers before the courts. The Statute of Anne put an end to this practice and replaced it with …

The Power Of Collaboration: Worldcat's Copyright Evidence Registry, Roger V. Skalbeck

Law Faculty Publications

One of the underlying obstacles to reproducing older books is that there's no central place to look for information about what is protected by copyright and what may have passed into the public domain. Responding to this need, OCLC recently introduced a new system for tracking various copyright details for published books. The new service, still in beta, is called the WorldCat Copyright Evidence Registry (CER). It could be a very valuable resource for recording and sharing copyright status information.

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.

The Freedom Of Information Act And Trade Secrets, Roger V. Skalbeck

Law Faculty Publications

This article details a case illustration where federal law intersects with trade secret questions, a subject normally governed by state laws.

Is There A New Digital Collection In Your Future?, Roger V. Skalbeck

Law Faculty Publications

In this article, we take a look at a handful of the bigger law-related digital collections available today. We present the core elements of each collection to give readers an idea of what is out there. In addition, we look at some broad-based questions presented by acquiring access to digital collections. Finally, briefly, we look at issues of access, ownership, copyright, interlibrary lending, catalog records, and cost.

Once And Future Copyright, James Gibson

Law Faculty Publications

Copyright is like a well-meaning but ultimately bothersome friend, eager to help but nearly impossible to get rid of. It attaches indiscriminately to the simplest acts of expression, without regard for whether the author needs or wants its protection. This automatic propertization made sense in the print era, when mass distribution of information was an expensive process rarely undertaken by those with no plans to profit from their creativity. It makes little sense today. The following article shows that copyright's overly solicitous nature is the source of several seemingly unrelated and intractable problems - e.g., closed code, copyright as censorship, …

Google's (Fair) Use Of Copyrighted Work, James Gibson

Law Faculty Publications

Letters to the Editor on Google's (Fair) Use of Copyrighted Work

Re-Reifying Data, James Gibson

Law Faculty Publications

There's a war on between those who view digital technology as a reason to expand intellectual property law and those who oppose this expansion. One front in the war is technological: the pro-expansionists enclose their products in restrictive code, which the anti-expansionists circumvent and hack. A second is legislative: the pro-expansionists seek extended copyright duration, favorable changes to contract law, and other new legal entitlements, while the anti-expansionists lobby for the opposite. And a third front is a combination of the first two: it is technological. On this battlefield, the pro-expansionists use the law to fortify their technological protections. But …

How Dewey Classify Oclc's Lawsuit, Roger V. Skalbeck

Law Faculty Publications

In order to understand the nature of the rights asserted here, it is important to properly classify the Dewey Decimal lawsuit. To these ends, this article presents analysis aimed to better define its scope and legal framework. This is not an analysis of the merits of the claims, let alone a prediction as to the outcome. The issues are considered in the following three sections. In closing, I offer a lighthearted suggestion as to how this suit might be resolved outside of litigation or settlement.

The National Conference On Legal Information Issues: Selected Essays, Timothy L. Coggins

Law Faculty Publications

During the past decade, information technology developments have the dissemination and use of legal and legal-related In 1995, the American Association of Law Libraries, a organization with more than 5,000 members, convened the first "National Conference on Legal Information Issues" in conjunction with its eighty-eighth meeting. National Conference provided a forum for members of the legal and information communities to discuss the challenging problems and issues arising from the dynamic technological changes that have impacted the creation, dissemination and use of legal information. The National Conference assembled more than 2,500 librarians, law faculty and deans, judges court administrators, practicing attorneys …

Foreword: Law And The Library, Timothy L. Coggins

Law Faculty Publications

A Foreword for the North Carolina Libaries Journal on "Law and the Library."