Law Commons^™

Fair Use And Education: The Way Forward, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

The ability to make reasonable fair use of copyrighted material is both economically and culturally important to the enterprise of education. No other feature of copyright laws offers educators access of the same potential scope. In asserting fair use, teachers, librarians, and others cannot rely on a claim of "economic exceptionalism, "for which there is no clear basis in U.S. copyright law. Nor can they expect to arrive at satisfactory shared understandings with copyright owners. Instead, they should seek to take advantage of current trends in copyright case law, including the marked trend toward preferring uses that are "transformative," where …

Access Copyright & Technology: Legal And Policy Issues In Education, Lisa Di Valentino

FIMS Presentations

Access Copyright is a collective organization representing the
copyright interests of publishers and creators. The collective offers
copyright licences that allow certain limited uses of works in the
collective's repertoire. The use of collective licences as part of
copyright management policy was common in post-secondary education
administration until 2010, when many universities opted out of a
contractual relationship with Access Copyright.

The growing movement towards online open access publishing and
Creative Commons public licensing has made information more widely
available without requiring payment and with fewer restrictions on
use. The addition of education to the list of fair dealing purposes …

Code-Ifying Copyright: An Architectural Solution To Digitally Expanding The First Sale Doctrine, Evan Hess

Fordham Law Review

   As the internet blossomed into ubiquity, piracy mushroomed with it. To control the threat, Congress passed the Digital Millennium Copyright Act (DMCA). The DMCA created a number of safeguards for copyright holders. But the DMCA purposely ignored whether copyright holders could restrict future transfers of their legally purchased work—a concept known in physical property as the “first sale doctrine.” As a result, copyright holders began using licenses to control future transfers of their digital property.

   This was not the first time copyright holders have attempted to gain greater control over their work. The history of copyright law demonstrates a pattern …

Liberating The Library: Fair Use Mostly Upheld For University E-Reserves In Cambridge University Press V. Becker, Jennifer Findley

Mercer Law Review

Libraries and universities across the country had Georgia on their minds as they waited in anticipation for over a year for the outcome of a case. before the United States District Court for the Northern District of Georgia. On May 11, 2012, in Cambridge University Press v. Becker, Judge Orinda Evans answered a question of vital importance to librarians and university officials ever since the passage of the Copyright Act of 1976: does copyright infringement occur if a nonprofit institution makes copies for the classroom for a nonprofit educational purpose? In a 350-page opinion, the court answered with a …

Copyright And The Musical Arrangement: An Analysis Of The Law And Problems Pertaining To This Specialized Form Of Derivative Work, Joel L. Friedman

Pepperdine Law Review

No abstract provided.

Protection Of Intellectual Property Rights In Computers And Computer Programs: Recent Developments , Alan C. Rose

Pepperdine Law Review

The following article examines the protection offered to computers and computer programs, under the various applicable patent, copyright and trade secret laws. Concerning patent protection; the author discusses the history and current status of the patent laws, and analyzes in detail the landmark case of Diamond v. Diehr. Discussed also is an analysis of copyright protection for computer programs, offered by the 1980 amendments to section 117 of the 1976 Copyright Act; which paved the way for the increased protection.

Copyright And The First Amendment: Freedom Or Monopoly Of Expression?, Henry S. Hoberman

Pepperdine Law Review

No abstract provided.

Gottesman V. Vardi, Uzi Vogelman, Salim Joubran, Noam Sohlberg

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The Second Appellant (hereinafter referred to as "Gottesman") is an architect who designed a unique dwelling (hereinafter referred to as "the house") for the Respondent (hereinafter referred to as "Vardi"). Gottesman asked to photograph the house in order to showcase it on his firm's website. Vardi refused. In addition, Gottesman published computer simulations of Vardi's house on the website without giving details that would …

States Escape Liability For Copyright Infringement?, Michelle V. Francis

Pepperdine Law Review

No abstract provided.

News On The Internet, Robert Denicola

Fordham Intellectual Property, Media and Entertainment Law Journal

Newspapers are in trouble. Circulation and advertising are down as readers shift from print to online media. Although changing reader preferences and the loss of lucrative classified advertising to online sources are major worries, the news media seems preoccupied with news aggregators and bloggers who distribute news content on the internet without permission. Newspapers are not the only ones worried about the unauthorized distribution of "their" news on the internet. Financial services companies are unhappy about the distribution of their "hot" stock recommendations and other content providers seek to control online news ranging from movie schedules to business ratings. Traditional …

The Economics Of Kirtsaeng V. John Wiley & Sons, Inc.: The Efficiency Of A Balanced Approach To The First Sale Doctrine, Guy A. Rub

Res Gestae

No abstract provided.

Fashion And U.S. Ip Law, Marketa Trimble

Boyd Briefs / Road Scholars

No abstract provided.

Hey, He Stole My Copyright: Putting Theft On Trial In The Tenenbaum Copyright Case, Peter J. Karol

Law Faculty Scholarship

This article approaches the well-publicized Joel Tenenbaum copyright case through an analysis of its highly-charged trial rhetoric. In particular, it argues that the case as tried was not really about Joel Tenenbaum or his actions. Rather, the trial was about whether, and to what extent, peer-to-peer (“P2P”) file sharing is “theft,” and the P2P sharer a “thief.” So approached, the case provides a captivating, perhaps unique, academic case study on the power of theft rhetoric in a copyright trial as advanced before a jury.

It first introduces the Tenenbaum litigation generally, and its place in the recording companies’ broad attack …

Legal Issues In Mass Digitization: A Preliminary Analysis And Discussion Document, United States Copyright Office

AALL Legal Website of the Month

The Library of Congress Copyright Office published a preliminary analysis and discussion document that addresses the issues raised by the intersection between copyright law and the mass digitization of books. The purpose of the analysis is to facilitate further discussions among the affected parties and the public discussions that may encompass a number of possible approaches, including voluntary initiatives, legislative options, or both. The document also identifies questions to consider in determining an appropriate policy for the mass digitization of books.

Safe Harbor For The Innocent Infringer In The Digital Age, Tonya M. Evans

Law Faculty Scholarship

The primary goal of this Article is three-fold: (1) to explore the role of the innocent infringer archetype historically and in the digital age; (2) to highlight the tension between customary and generally accepted online uses and copyright law that compromise efficient use of technology and progress of the digital technologies, the Internet, and society at large; and (3) to offer a legislative fix in the form of safe harbor for direct innocent infringers. Such an exemption seems not only more efficient but also more just in the online environment where unwitting infringement for the average copyright consumer is far …

The Revolutionary Influence Of Low Enlightenment: Weakening Copyright In Developing Countries To Improve Respect For Human Rights And The Rule Of Law, Martin Skladany

Faculty Scholarly Works

Diverse groups have banded together to critique current intellectual property laws under the Access to Knowledge movement. The Geneva Declaration on the Future of the World Intellectual Property Organization, the Access to Knowledge Treaty, and the Adelphi Charter on Creativity, Innovation and Intellectual Property call for an end to further growth in intellectual property protection and demand that the World Intellectual Property Organization be more cognizant of the needs of developing countries in terms of expanding access to textbooks and other educational materials. However, the movement has yet to appreciate the value of significantly weakening copyright law in developing countries …

The Immorality Of Strict Liability In Copyright, Steven Hetcher

Marquette Intellectual Property Law Review

I will argue for a fundamental reconceptualization of liability for copyright infringement. Specifically, I will argue that the essentially unchallenged orthodoxy that copyright infringement is a strict liability tort is false. From the Supreme Court on down, it does not even appear to be questioned that copyright infringement applies a strict liability standard. Upon reflection, this is peculiar, given that this is anything but an innocuous doctrine. It is just the opposite; it is a doctrine that strongly favors copyright owners who may more easily prevail in infringement suits, as it will always be easier to establish strict liability as …

The End Of Ownership?, Donald F. Jankowski Ii

Marquette Intellectual Property Law Review

Imagine for a moment that you are in the market for a new car. You find a sports car that you like, talk with a salesperson and ultimately purchase a new automobile. This car is effectively the same as thousands of other cars. It is a copy. You were not under the impression that you were buying the rights to the design of the car or to reproduce the car to the exact specifications as your own copy. However, you believe that you can do with this car what you will. You can put bigger wheels on it, put stickers …

Copyright, Competition, And The First English-Language Translations Of Les Misérables (1862), Michael H. Hoffheimer

Marquette Intellectual Property Law Review

None

Federal Circuit V. Ninth Circuit: A Split Over The Conflicting Approaches To Dmca Section 1201, Robert Arthur

Marquette Intellectual Property Law Review

None.

Copyrightable Works In The Undergraduate Student Context: An Examination Of The Issues, Lisamarie A. Collins

Marquette Intellectual Property Law Review

None.

From Berne To Beijing: A Critical Perspective, David L. Lange

Faculty Scholarship

Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law’s Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange’s preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated …

Five Oft-Repeated Questions About China’S Recent Rise As A Patent Power, Peter K. Yu

Cardozo Law Review de•novo

This Article focuses on five key questions that I have been repeatedly asked in presentations or conferences exploring recent intellectual property developments in China. As the answers will suggest, the future of the Chinese intellectual property system is rather complex. This future reflects neither a rosy picture of China’s “great leap forward” in the intellectual property arena nor a continuously gloomy picture of pirates and counterfeiters. Instead, the picture is dualistic and highly dynamic. It includes both yin and yang—the yin of continued massive piracy and counterfeiting and the yang of China’s rise as a patent power.

The Meaning Of Science In The Copyright Clause, Ned Snow

Faculty Publications

The Constitution premises Congress’s copyright power on promoting “the Progress of Science.” The word Science therefore seems to define the scope of copyrightable subject matter. Modern courts and commentators have subscribed to an originalist view of Science, teaching that Science meant general knowledge at the time of the Framing. Under this interpretation, all subject matter may be copyrighted because expression about any subject increases society’s store of general knowledge. Science, however, did not originally mean general knowledge. In this Article, I examine evidence surrounding the Copyright Clause and conclude that at the Framing of the Constitution, Science meant a system …

Keep Your “Friends” Close And Your Enemies Closer: Walking The Ethical Tightrope In The Use Of Social Media., John G. Browning

St. Mary's Journal on Legal Malpractice & Ethics

This Article will examine the ethical issues posed by lawyers’ use of social media platforms in light of the ABA Ethics Commission 20/20 changes to the Model Rules of Professional Conduct. Social networking has had a transformative effect both on the way society shares information and on the legal profession. Much of the discussion to date focuses on the discovery and use of evidence from social media sites in criminal cases and civil litigation, but attention must also be directed to the ethical quandaries posed by the legal profession’s use of social media. This Article will consider issues such as …

Comments On Alrc Discussion Paper 79, Copyright And The Digital Economy, June M. Besek, Jane C. Ginsburg, Philippa Loengard

Faculty Scholarship

We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated "fair use" type exception in Australia, and other related issues.

The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot be …

How Hard-Fought Is Copyright Litigation?, James Gibson

Law Faculty Publications

As I mentioned in my last essay, my colleague Chris Cotropia and I have recently completed a data collection project in which we examined pleadings from approximately 1,000 copyright cases filed in federal court over a four-year period. We are still evaluating the data, but our preliminary findings indicate that copyright litigation differs from other federal civil litigation; it takes longer and appears to be contested more – yet ends up in much the same place.

A little background first. During the period we studied (2005-2008), the cases fell into three broad categories. The first comprised those cases in which …

Four Ways In Which Kirtsaeng Might Be Undone, James Gibson

Law Faculty Publications

In my previous entry in this series, I discussed the Supreme Court’s long-awaited decision in Kirtsaeng v. John Wiley & Sons, involving the unauthorized resale in the United States of textbooks purchased overseas. Indeed, the Kirtsaeng case and the issue it presented have been a popular subject of IP Issues commentary; before the Supreme Court ruling, I wrote on the issue here and here, and Randy Picker had some commentary both beforeand after the opinion came down.

You can read those earlier entries for the details, but the outcome of the case is clear: U.S. copyright law does not prohibit …

Finally, An Answer On Copyright, First Sale, And The Gray Market, James Gibson

Law Faculty Publications

In two past entries in this series, here and here, I discussed whether copyrighted goods manufactured abroad may be resold in the United States without having to get a new license from the copyright owner. When the goods are pirated – manufactured illegally – the answer is clearly no; that’s a classic black-market sale. But when the goods were manufactured abroad with the copyright owner’s consent, well, that’s different. In that case, the resale is what we call a gray-market sale. And there, the answer is less clear.

Or at least it was. But at long last, and after one …

The Top Three Copyright Cases Of 2012, James Gibson

Law Faculty Publications

In my last entry in this series, I examined three important patent law cases from 2012 – one at the Supreme Court level, one at the appellate level, and one at the trial court level. I’ll now do the same thing with regard to copyright cases.

My Supreme Court choice is Golan v. Holder, in which the Court upheld a statute that restored U.S. copyright protection to certain foreign works, thus removing them from the public domain. Such works had lost their protection – or had never acquired it in the first place – because of their failure to comply …