Law Commons^™

Congressional Authority Over Intellectual Property Policy After Eldred V. Ashcroft: Deference, Empty Limitations, And Risks To The Public Domain, David E. Shipley

Scholarly Works

The United States Supreme Court upheld the Copyright Term Extension Act of 1998 (CTEA) in Eldred v. Ashcroft. The Court ruled that Congress had not exceeded its authority under the Copyright Clause by extending the copyright term twenty years and applying this extension retroactively to existing copyrighted works that otherwise would have entered the public domain at the end of their current, nonextended terms. The majority found a rational basis for CTEA and showed great deference to the authority of Congress to set policy that, in its judgment, effectuates the aims of the Copyright Clause. Although this deference to …

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Journal Articles

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

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.

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.

Structural Rights In Privacy, Harry Surden

Publications

This Essay challenges the view that privacy interests are protected primarily by law. Based upon the understanding that society relies upon nonlegal devices such as markets, norms, and structure to regulate human behavior, this Essay calls attention to a class of regulatory devices known as latent structural constraints and provides a positive account of their role in regulating privacy. Structural constraints are physical or technological barriers which regulate conduct; they can be either explicit or latent. An example of an explicit structural constraint is a fence which is designed to prevent entry onto real property, thereby effectively enforcing property rights. …

A Reason For Musicians To Fret: Copyright Infringement In Online Guitar Tablature, Laura E. Gary

Vanderbilt Journal of Entertainment & Technology Law

Part I of this note will specifically address guitar tablature and how it differs from more traditional methods of copying musical works. Part I will also discuss derivative works and fair use in detail, setting out the statutory provisions and the relevant case law establishing and analyzing both these claims. Part II addresses the lack of legal precedent for copyright infringement in guitar tabs and devises a possible solution to the question of whether or not guitar tabs infringe copyrighted musical works. Specifically, this note concludes that the appropriate answer to that question is that guitar tabs are infringing derivative …

Amendment To Publication Agreement, University Of Georgia School Of Law

Institutional Repository Supporting Materials

Faculty members are asked to append this addendum to any article publication agreement that does not explicitly allow posting the final published version into the Digital Commons and onto their personal webpages, such as Selected Works.

Layered Rights: Robertson V. Thomson, Gregory R. Hagen

Canadian Journal of Law and Technology

In Robertson v. Thomson Corp., the Supreme Court of Canada (‘‘ the Court ’’) considered ‘‘ whether newspaper publishers are entitled as a matter of law to republish in electronic databases freelance articles they have acquired for publication in their newspapers — without compensation to the authors and without their consent’’. Curiously, while deciding that publishers are not entitled to reproduce the individual articles without the consent of the freelancers, it also held that the publishers do have a right to reproduce the articles in a CD- ROM database ‘‘as a part of those collective works — their newspapers . …

Domain And Forum: Public Space, Public Freedom, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The particular problems of content and viewpoint discrimination rarely surface in copyright, though some people have argued that fair use implicates them. Nonetheless, one important lesson for copyright from public forum doctrine is that First Amendment law can take some - though not many - speech-related options off the table. In this brief comment, I argue that analogies between copyright law and public forum doctrine highlight important shared commitments to free and robust public discourse, but also substantial practical barriers to judicial enforcement of those commitments.

On The Legal Consequences Of Sauces: Should Thomas Keller’S Recipes Be Per Se Copyrightable?, Christopher Buccafusco

Articles

The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for …

Copyright, Fair Use And Motion Pictures, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

Within copyright law, the tension between contemporary creators' needs for access to preexisting material, on the one hand, and the imperatives of copyright ownership, on the other, are mediated primarily by the so-called "fair use" doctrine. The application of this venerable legal concept, which exempts some substantial takings of protected content from infringement liability, is the subject of this essay.

Mashed Up Videos And Broken Down Copyright: Changing Copyright To Promote The First Amendment Values Of Transformative Video, Andrew S. Long

Oklahoma Law Review

No abstract provided.

The Trademark/Copyright Divide, Laura A. Heymann

Faculty Publications

No abstract provided.

Creativity And Culture In Copyright Theory, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Creativity is universally agreed to be a good that copyright law should seek to promote, yet copyright scholarship and policymaking have proceeded largely on the basis of assumptions about what it actually is. When asked to discuss the source of their inspiration, individual artists describe a process that is intrinsically ineffable. Rights theorists of all varieties have generally subscribed to this understanding, describing creativity in terms of an individual liberty whose form remains largely unspecified. Economic theorists of copyright work from the opposite end of the creative process, seeking to divine the optimal rules for promoting creativity by measuring its …

On The Legal Consequences Of Sauces: Should Thomas Keller’S Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco

Faculty Scholarship

No abstract provided.

Neutral Citation, Court Web Sites, And Access To Case Law, Peter W. Martin

Cornell Law Faculty Publications

In 1994 the Wisconsin Bar and Judicial Council together urged the Wisconsin Supreme Court to take two dramatic steps with the combined aim of improving access to state case law: 1) adopt a new system of neutral citation and 2) establish a digital archive of decisions directly available to all publishers and the public. The recommendations set off a storm, and the Wisconsin court deferred decision on the package. In the years since those events, the background conditions have shifted dramatically. Neutral citation has been endorsed by the AALL and ABA and formally adopted in over a dozen states, including …

Creative Commons As Conversational Copyright, Michael Carroll

PIJIP Faculty Scholarship

Copyright law's default settings inhibit sharing and adaptation of creative works even though new digital technologies greatly enhance individuals' capacity to engage in creative conversation. Creative Commons licenses enable a form of conversational copyright through which creators share their works, primarily over the Internet, while asserting some limitation on user's right with respect to works in the licensed commons. More specifically, this chapter explains the problems in copyright law to which Creative Commons licenses respond, the methods chosen, and why the machine-readable and public aspects of the licenses are specific examples of a more general phenomenon in digital copyright law …

A Universal Copyright Fund: A New Way To Bridge The Copyright Divide, Kung-Chung Liu, Haochen Sun

Research Collection Yong Pung How School Of Law

The ever-increasing digitization of works, along with the deployment of technical measures to protect such works and the expansive use of the Internet, further exacerbate the divide between the IP-rich and IP-poor countries in their ability to benefit from such works. It is suggested by this paper that to borrow from experiences on how the telecommunications world provides universal service to each and every household at affordable prices, and to endeavor to shed some new light on how the copyright divide can be narrowed. It is structured in three parts. The first part will examine the past and future failure …

Bollywood Is Coming! Copyright And Film Industry Issues Regarding International Film Co-Productions Involving India, Timm Neu

San Diego International Law Journal

These developments and mutual correlating interests underscore the rising trend in the number of international co-productions and cinematographic co-operations with India. Still, the practice of movie making in India differs in many ways from industry structures in the U.S. or Germany, which shall be analyzed as potential co-production partners. Contractual relations, industry regulations, involved parties, and the legal rules are so distinct, that a comparative view from a producer's perspective shall bring into light the frameworks and copyright issues of international film co-productions involving India.

Google The Gozerian And Fair Use Slimed: Copyright Again In The Technocrat's Den, Brian Sites

Faculty Scholarship

This article considers the fair use doctrine as it applies to Google's Library Search Project and both predicts and advocates for a finding of fair use. Part I briefly reviews the past by considering the pertinent history of the fair use doctrine. It also explains the details of the current suit over Google's Library Project. Part II moves on to consider the current state of fair use analysis by reviewing 110 fair use cases and conducting simple statistical analyses. It then explains and applies the fair use doctrine to Google's project. Part III considers cases frequently compared to Google's and …

Copyright's Empire: Why The Law Matters , Alina Ng

ExpressO

Two separate and distinct movements have colonized research in the field of intellectual property. Law and economics has deepened our understanding of the justification for granting monopoly rights over intellectual property. In recent years, economic theories have been used to support the growth of the commons – the free environment, where intellectual property plays little role in generating new creative works and innovation. The second movement is law and technology that has sought to increase understanding of intellectual property through the exploration of how technologies either provide freedoms or impose limitations to how creative works and innovation are created and …

Overcoming The Achilles Heel Of Copyright Law, Haochen Sun

ExpressO

With the recent proliferation of international, regional and bilateral treaties associated with copyright protection, the three-step test has been hailed as the panacea for measuring the legality of all limitations on copyright. This article challenges the legitimacy of the three-step test as a one-size-fits-all standard for copyright protection and puts forward a proposal to reshape this test. It further argues that the inquiry into the legitimacy of the three-step test necessitates a careful reexamination of the conventional wisdom of copyright law in general and the nature of copyright limitations in particular. Central to this scrutiny are the inquiries into how …

Access To Knowledge As A Bridge Over The Troubled Waters Of Copyright Fair Use -- From Jefferson To Mandela To Google, Douglas L. Rogers

ExpressO

The copyright fair use doctrine is a key to increasing access to knowledge and decreasing the digital divide between information-rich and information-poor countries. Publishers have sued Google for copyright infringement for scanning the copyrighted books of the publishers into a digital database, so Google users can search the database for certain words to determine what books contain words of interest to the user. The Google litigation, however, is only a small piece of the larger access to knowledge puzzle. The larger issue is access to the books themselves, translated into the native languages of citizens of developing countries. Yet copyright …

Technoconsen(T)Sus, Andrea M. Matwyshyn

ExpressO

Law is contributing to an information security paradox. Consumers are regularly “consenting” to the installation of computer code that makes them more vulnerable to harms such as identity theft. In particular, digital rights management technology accompanying digital music has recently left a wake of compromised user machines. Using the case study of security-invasive digital rights management technology, this article argues that a fundamental tension exists among intellectual property law, computer intrusion law and contract law regarding meaningful consumer consent in digital contexts. This article proposes to ease the noise in consent doctrine through creating an objective “reasonable digital consumer” standard …

The Twilight Of The Opera Pirates: A Prehistory Of The Exclusive Right Of Public Performance For Musical Compositions, Zvi S. Rosen

ExpressO

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America’s first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance …

Defining Fair Use In The Digital Era, Joseph James Raffetto

ExpressO

The increasing prevalence of technology, and the ease with which the public and companies can reproduce, recombine, and reuse copyrighted works, has rendered the once-confusing fair use doctrine a virtual uncertainty. Given limited congressional guidance, courts have relied heavily on the secondary use’s potential effect on the market for the original work. While this reliance is based on the valid concern of maintaining adequate creative incentives, the enormous growth of licensing markets has resulted in an overemphasis on economic concerns. Recent court decisions indicate that fair use now turns not on the protection of creative incentives, but rather the preservation …

Copyright Distributive Injustice, Daniel Benoliel

ExpressO

By design, copyright is a legal field that is not distinctively designed for redistribution. And yet, numerous fairness scholars and other critics of the economics paradigm quite markedly argue that copyright law should be based upon some measure of distribution, not efficiency.

This essay argues that copyright law should not promote distributive justice concerns, subject to narrow exceptions and that other more efficient law such as taxation and welfare laws should do that instead. It does so in accordance to the prevailing welfare economics interpretative approach to copyright jurisprudence, with emphasis on the latest Peer-to-Peer (P2P) file sharing litigation.

It …

Risk Aversion And Rights Accretion In Intellectual Property Law, James Gibson

ExpressO

Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict, intellectual property users often seek licenses even when proceeding without one might be permissible. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine; the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory--where risk aversion again creates licensing markets, which cause …

Licenced To Thrive? Podcasting And Copyright Law In Canada, Keith Sutherland

Canadian Journal of Law and Technology

This article examines podcasting and its specific characteristics to see, first, where it fits within Canada’s copyright law, and second, how the licensing regime for musical works in Canada applies to podcasting. The discussion next turns to whether or not the current licensing regime for podcasting is desirable in light of the purpose of copyright in Canada, and with a view to the various interests at stake: those of artists, in being paid, and those of society, in enabling podcasters to access material in order to produce their work. An examination of the current and proposed licensing regime and its …

Taking Copyright Seriously: Abridging Rights Is More Serious Than Inflating Rights, Alina Ng

ExpressO

The proper balance between private rights and public interests in copyright has always been a heated debate. As communication and information technologies converge and develop to enable authors and users of creative works to create and use works without the physical limitations of the analog world, the debate has become more intense. This paper intends to contribute to the debate by bringing attention to basic ideas about rights and the importance of copyright as an institution to ensure that authors create new literary and artistic works for the benefit of the public. Rights under copyright are rights that define the …