Law Commons^™

An Exclusive Right To Evoke, Stacey Dogan

Faculty Scholarship

Ten years ago, in White v. Samsung Electronics America, the Ninth Circuit held that a robot violated Vanna White's publicity rights. Since the White decision, the tendency to equate evocation with infringement in trademark and right of publicity cases has only grown. In contrast to this expansionist trend in trademark and right of publicity law, however, courts in recent copyright cases have arguably backed off from a strong right to evoke. This Article identifies these trends and suggests some reasons for concern over an exclusive right to evoke. The author argues that if we wish to preserve a rich commons …

Code Versus The Common Law, Stacey Dogan

Faculty Scholarship

The explosion of peer-to-peer file sharing has forced a reexamination of the essential structure of copyright law in the United States. In a digital, interconnected world, the dispersion of copying and distribution activities makes it more difficult for copyright holders to identify users who derive value from their works. And at least theoretically, the inability to capture such value could ultimately jeopardize the incentive to produce and distribute creative expression.

There is widespread disagreement over what, if anything, should be done about these threats. While suggestions range from copyright abandonment to digital lockup, two of the principal proposals share an …

Controlling Opportunistic And Anti-Competitive Intellectual Property Litigation, Michael J. Meurer

Faculty Scholarship

It is useful to think of intellectual property (IP) law both as a system of property rights that promotes the production of valuable information and as a system of government regulation that unintentionally promotes socially harmful rent-seeking. This Article analyzes methods of controlling rent-seeking costs associated with opportunistic and anti-competitive IP lawsuits. My thinking is guided to some extent by the analysis of procedural measures for controlling frivolous litigation, and analysis of antitrust reforms designed to control strategic abuse of antitrust law. These analogies lead me to focus on pre-trial and post-trial control measures that reduce the credibility of weak …

A Primer On U.S. Intellectual Property Rights Applicable To Music Information Retrieval Systems, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

Digital technology has had a significant impact on the ways in which music information can be stored, transmitted, and used. Within the information sciences, music information retrieval has become an increasingly important and complex field. This brief article is addressed primarily to those involved in the design and implementation of systems for storing and retrieving digital files containing musical notation, recorded music, and relevant metadata – hereinafter referred to as a Music Information Retrieval System (“MIRS”). In particular, this group includes information specialists, software engineers, and the attorneys who advise them. Although peer-to-peer computer applications, such as Napster’s MusicShare or …

Begged, Borrowed Or Stolen: Whose Art Is It, Anyway - An Alternative Solution Of Fine Art Licensing, Judith Bresler

Articles & Chapters

Part II

New Surveillance, The , Sonia K. Katyal

Faculty Scholarship

A few years ago, it was fanciful to imagine a world where intellectual property owners - such as record companies, software owners, and publishers - were capable of invading the most sacred areas of the home in order to track, deter, and control uses of their products. Yet, today, strategies of copyright enforcement have rapidly multiplied, each strategy more invasive than the last. This new surveillance exposes the paradoxical nature of the Internet: It offers both the consumer and creator a seemingly endless capacity for human expression - a virtual marketplace of ideas - alongside an insurmountable array of capacities …

The Battle Of The Music Industry: The Distribution Of Audio And Video Works Via The Internet, Music And More, David Balaban

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

If Per Se Is Dying, Why Not In Tv Tying? A Case For Adopting The Rule Of Reason Standard In Television Block- Booking Arrangements, Nicole Labletta

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Digital Millennium Copyright Act: Preserving The Traditional Copyright Balance, Christine Jeanneret

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Copyright And Fair Use In Law Office Libraries, James S. Heller

Library Staff Publications

No abstract provided.

Should Canada Enact A New Sui Generis Database Right? , C.D. Freedman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald

Scholarly Works

The authors examine Eldred v. Ashcroft in a play setting where one of the characters plays a constitutional law professor and the other character plays an intellectual property professor.

Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald

Scholarly Works

Scene: The quiet hallway of a law school. A troubled young professor of Intellectual Property law stands in front of a senior colleague's office and studies a pencil sketch of Bushrod Washington taped to the door. After a moment's hesitation, he knocks and enters.

Pliability Rules, Abraham Bell, Gideon Parchomovsky

Michigan Law Review

In 1543, the Polish astronomer, Nicolas Copernicus, determined the heliocentric design of the solar system. Copernicus was motivated in large part by the conviction that Claudius Ptolemy's geocentric astronomical model, which dominated scientific thought at that time, was too incoherent, complex, and convoluted to be true. Hence, Copernicus made a point of making his model coherent, simple, and elegant. Nearly three and a half centuries later, at the height of the impressionist movement, the French painter Claude Monet set out to depict the Ruen Cathedral in a series of twenty paintings, each presenting the cathedral in a different light. Monet's …

Notes On Dissemination: The Prop/Tort Distinction - 2002, Wendy J. Gordon

Scholarship Chronologically

Most of the proviso-based reasons for restricting property rights come into play after dissemination.[1] Is there any other way in which dissemination matters? Yes; the point of dissemination demarks a crucial shift in the Kind of legal protection that must be given- and thus the Kind of institutional decisions that must be made- if the creator is to be protected.

Brief Amici Curiae Of The Progressive Intellectual Property Law Association And The Union For The Public Domain In Partial Support Of Petitioners, Eldred V. Ashcroft, 537 U.S. 186 (2003), Michael H. Davis

Law Faculty Briefs and Court Documents

This case affords this Court a unique opportunity to do more by doing less. Judicial restraint generally impels this Court to decide only essential constitutional issues. Here the issues are uniquely situated so that the decision of only one issue—that of retrospective extensions—will do far more than merely defer the remaining issue of prospective extensions, but will render that issue permanently beyond any need of judicial review. If this Court decides that retrospective extensions are unconstitutional, it will not only be able to avoid deciding the other issue today of whether a prospective extension violates the “limited times” Constitutional provision3 …

Collective Management Of Copyright And Neighbouring Rights In Canada: An International Perspective, Daniel J. Gervais

Canadian Journal of Law and Technology

In this paper, we will compare the current Canadian framework and activities of Collective Management Organizations with the situation in a number of other major countries and suggest possible improvements to the current regime. The comparison will focus first on the general legal background for collective management and, second, on issues specific to the digital age. The paper only addresses some of the specific issues raised by the 1996 WCT and WPPT.

The Internationalization Of Intellectual Property: New Challenges From The Very Old And The Very New, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Intellectual property concepts embodied in international treaties and national laws date back to the eighteenth century. Many fundamental concepts (originality in copyright law; confusion in trademark law; novelty or inventiveness in patent law) vary from one country's national legislation to another. Yet, many critics of the intellectual property system recognize that solutions to the problems, ranging from database protection to the Internet, should ideally be the same worldwide. In today's globalized economy, it makes sense to adopt rules to protect that take account of the laws and practices of other nations and of the work of international organizations. Protecting only …

Don't Shoot The Messenger! A Discussion Of Isp Liability, Andrew Bernstein, Rima Ramchandani

Canadian Journal of Law and Technology

In today’s world of rampant networked communica- tion, the Internet Service Provider (‘‘ISP’’) finds itself in a uniquely vulnerable position. As the conduit through which content is disseminated to a numerically and geo- graphically vast audience, the obvious legal risk to ISPs is that those who provide content will do so in a way that attracts legal liability. Like many communications prov- iders (such as publishers or broadcasters), the ISP may have to assume some responsibility for simply providing the means of transmitting content. In some cases, the ISP is more actively involved in the transmission or is know- ingly …

First Amendment Limits On Copyright, C. Edwin Baker

Vanderbilt Law Review

Although the tension between copyright and the First Amendment has long been noted and increasing numbers of First Amendment challenges to copyright have recently been filed, few scholarly commentaries have gone beyond relatively narrow attempts at doctrinal accommodation. Under the assumption either that existing copyright law fully accommodates First Amendment interests or that some balance is appropriate, commentators have avoided any principled exploration of the full force of First Amendment principles. This Essay aims to fill that gap. Rather than use mechanical doctrine to evaluate existing copyright law, this Essay begins with a theoretical approach to the First Amendment and …

Infringement Once Removed: The Perils Of Hyperlinking To Infringing Content, Stacey Dogan

Faculty Scholarship

This Article contends that the basic premise of Sony---that context and effect must play a role in evaluating allegations of secondary liability for copyright infringement-has application beyond the isolated case of equipment manufacture. More specifically, I propose a modified Sony framework for evaluating secondary liability for linking to infringing content. While this approach repudiates the strict view of secondary liability in favor of a more nuanced analysis, it stops short of advocating wholesale immunity for linkers. To the contrary, I contend that certain links, like certain acts of direct infringement, threaten copyright law's incentives with few compensating benefits to the …

Beyond Napster: Using Antitrust Law To Advance And Enhance Online Music Distribution, Matthew Fagin, Frank Pasquale, Kim Weatherall

Faculty Scholarship

What should be the broad principles guiding the copyright and competition policy governing online music? In short, what are the key concerns or values that we want preserved in relation to the distribution of music online? We will outline the background to the present investigations and existing law in Part I and argue in Part II that these concerns can be encapsulated in two broad areas: (1) the preservation of some scope for private and personal use and (2) the encouragement and growth of a diverse sector for the distribution of copyrighted works online. We also argue that, at least …

Understanding The Impact Of The Digital Millennium Copyright Act On The Open Source Model Of Software Development, Theodore C. Mccullough

Marquette Intellectual Property Law Review

Mr. McCullough discusses the Digital Millennium Copyright Act (DMCA), and the traditional and open source models of software development. He argues that the "DMCA supports the 'Traditional Model' of software development, at the expense of the 'Open Source Model,' by limiting the ability of open source developers to write programs that increase interoperability and by limiting their ability to engage in peer review for such programs." He also discusses the competing interpretations of the Reverse Engineering Safe Harbor and proposes statutory solutions to the overall lack of protection afforded to software developers using copyrightable materials to promote interoperability.

"Originality" After The Dead Sea Scrolls Decision: Implications For The American Law Of Copyright, Urzula Tempska

Marquette Intellectual Property Law Review

Ms. Tempska examines the Israel Supreme Court's ruling on August 31, 2002 regarding reconstruction and copyright infringement of the Dead Sea Scrolls. She reviews the copyrightability doctrine and its possible misapplications, illustrates the reconstruction process of the text involving the Dead Sea Scrolls, and describes the legal arguments and procedure of the Dead Sea Scrolls case. Tempska concludes that: 1) the arguments opposing copyright protection fail because they gloss over the facts of the reconstruction process and disregard the originality requirement for copyrightability under United States law; 2) the Israeli court's copyrightability analyses adequately accounted for the creative process, the …

How Far Have We Come, And Where Do We Go From Here: The Status Of Global Computer Software Protection Under The Trips Agreement, Aaron D. Charfoos

Northwestern Journal of International Law & Business

The TRIPS agreement made significant advances over the pre-TRIPS international regime with respect to the protection of computer software. There are at least two significant advances. First, computer software protections have been embedded into the new dispute resolution procedures. Second, both object and source code are protected under the copyright sections of the Agreement. The dispute resolution procedures provide back-end protection (protection after offenses have occurred), while new copyright provisions provide affirmative front-end protection (protection deterring such offenses). However, the Agreement could have, and should have, gone farther to protect the software industry. By not formally deciding on the ability …

Copyright Limitations And Contracts. An Analysis Of The Contractual Overridability Of Limitations On Copyright, Lucie Guibault

Articles, Book Chapters, & Popular Press

Traditional copyright law strikes a delicate balance between an author's control of original material and society's interest in the free flow of ideas, information, and commerce. In today's digitally networked environment, this balance has shifted dramatically to one side, as powerful rights holders contractually impose terms and conditions of use far beyond the bounds set by copyright law. This vitally significant book explores this conflict from its gestation through its current manifestations to its future lineaments and potential consequences. Focusing on statutory copyright limitations that enshrine constitutional rights such as freedom of expression and privacy, foster dissemination of knowledge, safeguard …

The Electronic Jungle: The Application Of Intellectual Property Law To Distance Education, Jon Garon

Vanderbilt Journal of Entertainment & Technology Law

The tension between academic institutions as creators and consumers of intellectual property seems to be most directly felt in the new areas of distance education. Despite the significant opportunities to use new media to expand the reach of the classroom to an ever-growing body of students, concerns regarding copyright, trademark and defamation law continue to limit and dictate what schools attempt to do. These limitations are more directly felt by individual instructors, who must enforce appropriate usage policies for their students, create copyrighted materials and negotiate with their schools over the ownership of the valuable content created.

This Article has …

Authorship And Termination Rights In Sound Recordings, Mary Lafrance

Scholarly Works

In late 1999, Congress amended the definition of "works made for hire" in § 101 of the Copyright Act to make explicit its intent to include sound recordings as a category of works eligible for this status. The amendment was repealed with retroactive effect less than a year later. All this happened—pardon the expression—in record time.

This odd course of events was precipitated by a request from the record industry, represented by the Recording Industry Association of America ("RIAA"), which persuaded Congress, shortly before passage of the Intellectual Property and Omnibus Communications Reform Act of 1999, to add a "technical …

New Laws, New Technology: Copyright Law Struggles With Change, Mary Lafrance

Scholarly Works

This article examines the development of copyright law in 2000 and 2001.

Law And Information Platforms, Philip J. Weiser

Publications

No abstract provided.