Law Commons^™

Access To Information And Knowledge, Lucie Guibault

Articles, Book Chapters, & Popular Press

No abstract provided.

From Hypatia To Victor Hugo To Larry And Sergey: ‘All The World's Knowledge’ And Universal Authors’ Rights, Jane C. Ginsburg

Faculty Scholarship

Access to ‘all the world’s knowledge’ is an ancient aspiration; a less venerable, but equally vigorous, universalism strives for the borderless protection of authors’ rights. Late 19th-century law and politics brought us copyright universalism; 21st-century technology may bring us the universal digital library. But how can ‘all the world’s knowledge’ be delivered, on demand, to users anywhere in the world (with Internet access), if the copyrights of the creators and publishers of many of those works are supposed to be enforceable almost everywhere in the world? Does it follow that the universal digital library of the near future threatens copyright …

Big Media In Copyright Litigation, James Gibson

Law Faculty Publications

What role does Big Media play in the courtroom?

Major media companies are often portrayed as aggressive drivers of expansive copyright, dominating every aspect of the legal landscape. When it comes to litigation, however, the truth is more nuanced. 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 over a four-year period (a statistically significant sample). We are still crunching the numbers, but what we’ve learned so far indicates that record labels, film studios, major software companies, and other behemoths of the copyright world end …

Access, Progress, And Fairness:Rethinking Exclusivity In Copyright, Nicolas Suzor

Vanderbilt Journal of Entertainment & Technology Law

This Article provides a detailed critique of the incentives-access binary in copyright discourse. Mainstream copyright theory generally accepts that copyright is a balance between providing incentives to authors to invest in the production of cultural works and enhancing the dissemination of those works to the public. This Article argues that dominant copyright theory obscures the possibility of developing a model of copyright that is able to support authors without necessarily limiting access to creative works. The abundance that the Internet allows suggests that increasing access to cultural works to enhance learning, sharing, and creative play should be a fundamental goal …

Sneering At The Law: An Argument For Punitive Damages In Copyright, R. Collins Kilgore

Vanderbilt Journal of Entertainment & Technology Law

The Copyright Act limits statutory damages in a copyright action to one award for every work that a plaintiff can prove a defendant infringed. The maximum amount a plaintiff may recover for each work is $30,000, except in the case of willful infringement, for which that amount may be increased to a maximum of $150,000. This Note explains how this dual limitation in the Copyright Act--the one-award-per-work limitation and the cap on statutory damage amounts--allows infringers to manipulate court procedures and corporate structure so that their acts of copyright infringement may maintain profitability despite the imposition of maximum statutory damages. …

Online Copyright Protection And Innovation International Experiences And Implications To China, Dexin Tian, Chin-Chung Chao

Communication Faculty Publications

Purpose – This study aims to explore the policy-making mechanism of the Organisation for Economic Co-operation and Development (OECD) on innovation and the US practice in identifying policies on online copyright protection and innovation. The research findings provide valuable implications for emerging economies like China.

Design/methodology/approach – For data collection, this study adopted field observation of online interactions. Guided by the democratic paradigm of the civil society, state, and market and the theory of the government’s roles as a broker, advocator, and facilitator, thematic analysis was applied to analyze the 150 purposively selected comments of US internet stakeholders for emerging …

Fixing Copyright In Three Impossible Steps: Review Of How To Fix Copyright By William Patry, Mark P. Mckenna

Journal Articles

This review of William Patry’s How to Fix Copyright highlights three of Patry's themes. First is Patry’s insistence that copyright policy be based on real-world evidence, a suggestion that should be uncontroversial but instead runs headlong into the near-religious commitments of copyright stakeholders. Second is Patry’s emphasis on the difference between the interests of creators, on the one hand, and owners of copyright interests, on the other. Third, and finally, is Patry’s focus on the copyright system’s strong tendency to entrench business models and resist change, particularly in the face of new technology.

An Intersystemic View Of Intellectual Property And Free Speech, Mark Bartholomew, John Tehranian

Journal Articles

Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Interestingly, each intellectual property regime strikes the balance between ownership rights and free speech in a dramatically different way. Despite a large volume of scholarship on intellectual property rights and free speech considerations, this Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, …

John Wiley & Sons, Inc. V. Kirtsaeng, Terence Keegan

NYLS Law Review

No abstract provided.

Technological Cost As Law In Intellectual Property, Harry Surden

Publications

Changes in the scope of IP legal rights are generally thought to be linked to changes in positive law. This Article argues that shifts in the scope of IP laws are often driven by changes in technological feasibility and not by changes in positive law. Diminishing technological constraint is an under-acknowledged factor driving changes in substantive IP law.

More specifically, there are certain activities that are core to IP law. Such activities include, for example, the copying of creative works in copyright (e.g. duplicating books or music), or the manufacturing of products in patent law. Traditionally, IP legal theory has …

Finding The Groove: A Path Forward On Terminations Of Sound Recording Transfers, Adam Rich '12

NYLS Law Review

No abstract provided.

Dissemination Must Serve Authors: How The U.S. Supreme Court Erred, Wendy J. Gordon

Faculty Scholarship

The US Congress has enacted expansions of copyright which arguably impose high social costs and generate little incentives for authorial creativity. When the two most expansive statutes were challenged as unconstitutional, the US Supreme Court rebuffed the challenges, partly on the supposed ground that copyright law could legitimately seek to promote nonauthorial interests; apparently, Congress could enact provisions aiming to support noncreative disseminative activities such as publishing, or restoring and distributing old film stock, even if authorial incentives were not served. Such an error might have arisen because of three phenomena (in economics, history, and law, respectively) that might easily …

What's A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property, Christopher Jon Sprigman, Christopher Buccafusco, Zachary C. Burns

Faculty Scholarship

Despite considerable research suggesting that creators value attribution – i.e., being named as the creator of a work – U.S. intellectual property (IP) law does not provide a right to attribution to the vast majority of creators. On the other side of the Atlantic, however, many European countries give creators, at least in their copyright laws, much stronger rights to attribution. At first blush it may seem that the U.S. has gotten it wrong, and the Europeans have made a better policy choice in providing to creators a right that they value. But for reasons we will explain in this …

What's A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property, Christopher Jon Sprigman, Christopher Buccafusco, Zachary Burns

Articles

Despite considerable research suggesting that creators value attribution – i.e., being named as the creator of a work – U.S. intellectual property (IP) law does not provide a right to attribution to the vast majority of creators. On the other side of the Atlantic, however, many European countries give creators, at least in their copyright laws, much stronger rights to attribution. At first blush it may seem that the U.S. has gotten it wrong, and the Europeans have made a better policy choice in providing to creators a right that they value. But for reasons we will explain in this …

Don't Just Cover The Engineering Design Process, Patent It!, Philip A. Reed

STEMPS Faculty Publications

The article discusses the importance of understanding intellectual property (IP) concept for students of engineering design process. It highlights that IP classification are of four types which includes patent, trademarks and copyright. The article further offers brief information on process of obtaining a utility patent for technological inventions.

The Missing Link: Making Research Easier With Linked Citations, Nick Harrell

Publications

No abstract provided.

Private Copyright Reform, Kristelia A. García

Publications

The government is not the only player in copyright reform, and perhaps not even the most important. Left to free market negotiation, risk averse licensors and licensees are contracting around the statutory license for certain types of copyright-protected content, and achieving greater efficiency via private ordering. This emerging phenomenon, herein termed "private copyright reform," presents both adverse selection and distributive justice concerns: first, circumvention of the statutory license goes against legislative intent by allowing for the reduction, and even elimination, of statutorily mandated royalties owed to non-parties. In addition, when presented without full term disclosure, privately determined royalty rates can …

Safe To Be Open: Study On The Protection Of Research Data And Recommendations For Access And Usage, Lucie Guibault, Andreas Wiebe

Books

Openness has become a common concept in a growing number of scientific and academic fields. Expressions such as Open Access (OA) or Open Content (OC) are often employed for publications of papers and research results, or are contained as conditions in tenders issued by a number of funding agencies. More recently the concept of Open Data (OD) is of growing interest in some fields, particularly those that produce large amounts of data – which are not usually protected by standard legal tools such as copyright. However, a thorough understanding of the meaning of Openness – especially its legal implications – …

A Numerus Clausus Principle For Intellectual Property, Christina Mulligan

Scholarly Works

Real property can only be held and conveyed in a small number of forms, such as fee simple, life estate, and lease. This principle is known as numerus clausus, meaning “the number is closed.” For centuries, the principle has been central to the common-law system of property rights. Scholars have justified it as a mechanism for facilitating effective property alienation, maintaining low transaction costs in the buying and selling of property, and keeping the scope of property owners’ rights clear.

In contrast, the numerus clausus principle is essentially nonexistent in intellectual property law. In the context of patents and copyrights, …

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension, Christopher Buccafusco, Paul J. Heald

Articles

The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality. While a low quality recording seems to lower a listener's valuation of …

Kirtsaeng And The First-Sale Doctrine's Digital Problem, Clark D. Asay

Faculty Scholarship

Many have lauded the United States Supreme Court's recent decision in Kirtsaeng v. John Wiley & Sons, Inc. as a significant victory for the first-sale doctrine under copyright law. However, in the digital context, the Kirtsaeng holding and the first-sale doctrine in general face extinction. This Essay argues for the first-sale doctrine's survival in the digital context.

Are Student Affairs Professionals “Educators?:” Student Affairs And The Scope Of The Educational Exemption Of Copyright Law, Dallas Long

Faculty and Staff Publications – Milner Library

Copyright is a critical, emerging issue in American higher education. Copyright restricts how educators use copyrighted materials in teaching activities. Although the fair use doctrine and the educational exemption in U.S. copyright law provide exceptions for educators, student affairs professionals might not meet the standards of the educational exemption. This paper serves as a primer on U.S. copyright law, the fair use doctrine, and the educational exemption. Analyses of case law suggest student affairs professionals should rely on the fair use doctrine rather than the educational exemption when using copyrighted materials for educational purposes.

Google Books: Game, Set, But Not Match, James Gibson

Law Faculty Publications

It’s back: Google Books, our favorite topic in this Intellectual Property Viewpoints series. Google Books is the project through which Google has brought its search capability to the text of more than 20 millions books (with the number still growing). To do so, Google must scan the book and convert the scan to readable text. And there’s the problem: Scanning is copying, and copying raises the question of whether the massive project is a massive violation of the copyrights in all those books. Thus the Authors Guild v. Google class action brought by authors and publishers against Google in a …

A Realist Approach To Copyright Law's Formalities, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

Rejecting the conventional story that formalities in copyright law were abolished by the Berne Convention, this Article demonstrates that privately administered systems of formalities play a significant role in the administration of copyright law worldwide. Indeed, they must because copyright is designed to support a transaction structure which requires rightsholders who seek to attract licensing partners to go through some formal step to identify themselves and the works in which they have a legal or beneficial interest. Canvassing the landscape of mandatory and voluntary public and private systems of formalities, this article argues that: (1) national policymakers retain more policy …

Copyright In Teams, Anthony J. Casey, Andres Sawicki

Articles

Dozens of people worked together to produce Casablanca. But a single person working alone wrote The Sound and the Fury. While almost all films are produced by large collaborations, no great novel ever resulted from the work of a team. Why does the frequency and success of collaborative creative production vary across art forms?

The answer lies in significant part at the intersection of intellectual property law and the theory of the firm. Existing analyses in this area often focus on patent law and look almost exclusively to a property-rights theory of the firm. The implications of organizational …

Copyright Freeconomics, John M. Newman

Articles

Innovation has wreaked creative destruction on traditional content platforms. During the decade following Napster's rise and fall, industry organizations launched litigation campaigns to combat the dramatic downward pricing pressure created by the advent of zero-price, copyright-infringing content. These campaigns attracted a torrent of debate among scholars and stakeholders regarding the proper scope and role of copyright law-but this ongoing debate has missed the forest for the trees. Industry organizations have abandoned litigation efforts, and many copyright owners now compete directly with infringing products by offering legitimate content at a price of $0.00.

This sea change has ushered in an era …

Judges As Bad Reviewers: Fair Use And Epistemological Humility, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The future of fair use depends on whether judges act like bad reviewers, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging. Ordinarily, judges are asked to produce definitive answers about the meanings of texts. But when it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations. This is also what is necessary to a …

Performance Anxiety: Copyright Embodied And Disembodied, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance—both as protected work and as right—is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

One key problem of performance from copyright’s perspective …

Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie And Exceptions, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards …

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension, Christopher Buccafusco, Paul J. Heald

Faculty Scholarship

According to the current copyright statute, copyrighted works of music, film, and literature will begin to transition into the public domain in 2018. While this will prove a boon for users and creators, it could be disastrous for the owners of these valuable copyrights. Therefore, the next few years will likely witness another round of aggressive lobbying by the film, music, and publishing industries to extend the terms of already-existing works. These industries, and a number of prominent scholars, claim that when works enter the public domain, bad things will happen to them. They worry that works in the public …