Law Commons^™

The Free Jammie Movement: Is Making A File Available To Other Users Over A Peer-To-Peer Computer Network Sufficient To Infringe The Copyright Owner's 17 U.S.C. § 106(3) Distribution Right?, Ken Nicholds

Fordham Law Review

Of the thousands of lawsuits brought by the Recording Industry Association of America against individuals for sharing music files over the Internet, the case of Jammie Thomas-Rasset was the first to complete a full jury trial. The judge vacated the intial judgment against Thomas-Rasset because he found, sua sponte, that he was mistaken when he instructed the jury that making a file available over a computer network for others to download is sufficient to find infringement of the exclusive distribution right of the copyright owner under 17 U. S. C. § 106(3). This Note argues that there is no making-available …

"Criminal Minded?": Mixtape Djs, The Piracy Paradox, And Lessons For The Recording Industry, Horace E. Anderson

Elisabeth Haub School of Law Faculty Publications

For at least the past three years, leading American fashion designers have lobbied for passage of copyright-like protection for the design aspects of their apparel creations. For at least as long, the recorded music industry has been engaged in an aggressive campaign to enforce its copyrights in recorded music against a number of technology-enabled and/or culturally sympathetic alleged infringers, including "twelve year-olds" and "grandmothers." Although the record labels already have protection under the copyright law while the fashion houses seek it, they have at least one thing in common: some portion of the piracy that they seek to eradicate is …

Youtube—The Next Generation Of Infringing On Creative Works: What Can Be Done To Protect The Screenwriters?, Ashlee M. Knuckey

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Copyrighting Stage Directions & The Constitutional Mandate To "Promote The Progress Of Science", Jessica Talati

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Tangled Web Of Plagiarism Litigation: Sorting Out The Legal Issues, Ralph D. Mawdsley

Law Faculty Articles and Essays

The purpose of this article is to explore the increasing complexity of plagiarism litigation in the United States. A determination as to when attribution is necessary in order to avoid a charge of plagiarism raises questions of intent and subject matter specific questions of general knowledge, as well as constitutional and contractual questions of fairness, tort questions of defamation, and questions of fair use under copyright law or misrepresentation under the Lanham Act. Most of the reported cases still involve students who contest discipline from their respective academic institutions--discipline that can range from a course penalty to expulsion from the …

Reproductive Freedom: Striking A Fair Balance Between Copyright And Other Intellectual Property Protections In Cartoon Characters, Laurie Richter

St. Thomas Law Review

The purpose of this article is to express the reasons why copyright statutes should be overhauled to provide explicit rights reserved to the public, as opposed to the present structure of copyright law, which provides rights to a copyright owner, subject to the many exceptions that have sprung up over the past few years. Some of these exceptions, which seem to have engulfed the basic premise of copyright theory, are the broadly framed but vague protections offered by the fair use doctrine. These rights include the right of a lawful owner of a copy to sell or otherwise dispose of …

From Parts Unknown: Wwe V. Jim Hellwig In The Ultimate Battle For Character Copyright, Daniel Bilsky

Marquette Sports Law Review

No abstract provided.

Copyright And Copy-Reliant Technology, Matthew Sag

Faculty Articles

Part I of this Article introduces the phenomenon of copy-reliant tech­nology by focusing on four significant case studies. The first case study, Field v. Google Inc., centers on the permissibility of automated archiving in the context of text-based search engines. The second case study, Perfect 10, Inc. v. Amazon.com, Inc., centers on the creation and display of thumb­nail representations of copyrighted photographs by image-based search en­gines. The conduct challenged in the third case study, the Google Book Project, relates both to the generation of metadata and to the display of fragments of books as part of a menu …

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 …

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 …

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 …

Conversations With Renowned Professors On The Future Of Copyright, James Boyle, Elizabeth Townsend Gard

Faculty Scholarship

No abstract provided.

Applying Old Theories To New Problems: How Adverse Possession Can Help Solve The Orphan Works Crisis, Megan L. Bibb

Vanderbilt Journal of Entertainment & Technology Law

This Note focuses on orphan works--works whose copyright owners cannot be found--and the problems they create for libraries and archives that wish to preserve and facilitate access to them. After describing the legal basis for the orphan works problem, the Note analyzes and critiques proposed legislative and scholarly solutions. After concluding that prior solutions fail to adequately address the needs of libraries and archives, the Note offers a solution based on the policy rationales underlying the traditional property concept of adverse possession, since the justifications that supported the advent of the adverse possession doctrine can also be applied to the …

Cops, Robbers, And Search Engines: The Questionable Role Of Criminal Law In Contributory Infringement Doctrine, Mark Bartholomew

Journal Articles

Online technologies have created a new litigation locus for intellectual property rights holders, one that targets intermediaries, not direct infringers. This unprecedented litigation strategy has put sudden pressure on the courts to evaluate the liability of indirect infringers. Without a developed body of precedent at their disposal, judges have resorted to analogies from the criminal law of accomplice liability to set the boundaries of contributory infringement. Does it make sense for intellectual property regulation to depend on the same principles that animate criminal law? This Article maintains that it would be a mistake to remake contributory infringement law in criminal …

Copyright, Trademark And Secondary Liability After Grokster, Mark Bartholomew

Journal Articles

Even though secondary infringement doctrine in both copyright and trademark stems from the same common law starting points, the doctrines have moved in very different directions, particularly in the last decade. As copyright litigants expanded their litigation strategy to include online intermediaries, secondary copyright liability was stretched to encompass a wider array of defendants with increasingly tangential relationships to the direct infringer. Meanwhile, even though similar online threats jeopardized the ability of trademark holders to safeguard their brands' goodwill, courts refused to implement a similar expansion for secondary trademark liability. Although courts are aware of this doctrinal double standard, they …

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 …

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 …

Experimenting With Territoriality: Pan-European Music License And The Persistence Of Old Paradigms, Ana Santos Rutschman

All Faculty Scholarship

This article tells the story of what could have been an interesting and important shift in our approach to territoriality in the digitalized world. Europe had the chance to be the cradle of an unprecedented copyright experience – the creation of a quasi pan- continental license in the music field – but it might have lost that opportunity in the midst of non-binding recommendations and resolutions. This article argues this loss is due to the overreaching persistence of old paradigms, namely the principle of territoriality.

Live Performance, Copyright, And The Future Of The Music Business, Mark F. Schultz

University of Richmond Law Review

No abstract provided.

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.

The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel Gervais

Vanderbilt Journal of Entertainment & Technology Law

Even as a mere conceptual cloud, the term "user-generated content" is useful to discuss the societal shifts in content creation brought about by the participative web and perhaps best epitomized by the remix phenomenon. This Article considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation--the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work …

Is There Such A Thing As Postmodern Copyright?, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

Back in 1992, artist/entrepreneur Jeff Koons suffered a humiliating setback when the United States Court of Appeals for the Second Circuit repudiated the suggestion that his reuse of objects from public culture might constitute a "fair use" defense to a copyright infringement claim. Fourteen years later, in a case that again involved a photographer's claim of copyright infringement, Koons triumphed in the same judicial forum. What had changed? This Article explores, in particular, one among a variety of alternative explanations: Koons may have caught the very leading edge of a profound wave of change in the social and cultural conceptualization …

Trespass-Copyright Parallels And The Harm-Benefit Distinction, Wendy J. Gordon

Faculty Scholarship

Currently, the elements of a plaintiff’s cause of action for copyright largely follow the tort of trespass to land in that volitional entry (for land) or volitional copying (for copyright) gives rise to liability regardless of proof of harm and without any need for the plaintiff to prove the defendant acted unreasonably. Many scholars have criticized copyright law for following the strict liability model of real property trespass, and have suggested alternatives that would more resemble conditional causes of action such as unfair competition, nuisance, or negligence. In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that copyright plaintiffs …

Rethinking Consideration In The Electronic Age, Robert A. Hillman, Maureen A. O'Rourke

Faculty Scholarship

Our fast-paced age of electronic agreements that ostensibly govern transactions as diverse as downloading software, ordering goods, and engaging in collaborative development projects raises questions regarding thesuitability of contract law as the appropriate legal framework. While this question arises in many settings, we focus here on the free and open source software (FOSS) movement because of the maturity and success of its model and the ubiquity of its software. We explore in particular whether open source licenses are supported by consideration, and argue that they are, and that open source licenses are contracts. We further argue that a contractual framework …

Subsidizing Creativity Through Network Design: Zero Pricing And Net Neutrality, Robin S. Lee, Tim Wu

Faculty Scholarship

Today, through historical practice, there exists a de facto ban on termination fees – also referred to as a “zero-price” rule (Hemphill, 2008) – which forbids an Internet service provider from charging an additional fee to a content provider who wishes to reach that ISP’s customers. The question is whether this zero-pricing structure should be preserved, or whether carriers should be allowed to charge termination fees and engage in other practices that have the effect of requiring payment to reach users. This paper begins with a defense of the de facto zero-price rule currently in existence. We point out that …

Harmony And Its Functionality: A Gloss On The Substantial Similarity Test In Music Copyrights., Sergiu Gherman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Considering The Reach Of Phelps, Thomas G. Field Jr.

The University of New Hampshire Law Review

[Excerpt] “As the Supreme Court recently confirmed in Quanta Computer, Inc. v. LG Electronics, Inc., patent and copyright owners have limited rights following voluntary transfers of protected goods. Moreover, as discussed at length by the Second Circuit in Platt & Munk Co. v. Republic Graphics, Inc., patent owners‟ rights have long been similarly affected by involuntary transfers. Platt & Munk finds the lack of equivalent copyright rulings remarkable, but does not allow lack of direct precedent to stand in the way of finding that involuntary transferees of copyright-protected goods have the same rights as voluntary transferees.

Initially, the Fourth Circuit, …

The Social Contract And Authorship: Allocating Entitlements In The Copyright System. , Alina Ng

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Antitrust And Copyright Collectives – An Economic Analysis, Adrianna Zabłocka

Yearbook of Antitrust and Regulatory Studies

The activity of the copyright collecting societies had been scrutinized by many antitrust authorities. The paper presents the decision taken by the President of the Office of Competition and Consumer Protection (UOKiK), which deals with abusing practices of Polish copyright collective society – ZAiKS. The paper concentrates on the economic aspects of the decision from the President of UOKiK.