Law Commons^™

If Hip-Hop Were Classified And The Pentagon Papers Had Been Copyrighted: An Analysis Of Whether The Fair Use Defense In Copyright Law Is Broad Enough To Protect First Amendment Concerns, Sean Buchanan

Akron Intellectual Property Journal

This paper will show that copyright law conflicts with the First Amendment in that the fair use doctrine is insufficient to protect the fundamental rights and interests that underlie the First Amendment's protection of speech. To do this, the paper will examine three primary justifications of the First Amendment: individual liberty, the marketplace of ideas, and political participation. The paper will also analyze multiple situations, in which parties bring copyright suits and the defendants claim fair use, to determine whether the fair use doctrine protects the First Amendment. This paper will show that if one accepts either a marketplace of …

The Sony Legacy: Secondary Liability Perspectives, Robert I. Reis

Akron Intellectual Property Journal

Sony seeded the ongoing conundrum of balancing protected intellectual property rights with the potential of technologies that enhance the use of intellectual content. New technologies that enable use also remove many copy limitations. Traditional remedies against individual infringers served their purpose of compensation and deterrence. These forms of action have been weakened where the jurisdictional, monetary and administrative underpinnings of legal administration are compromised. This complex of factors is further exacerbated by the clash between conflicting ends of protecting intellectual property rights while at the same time ensuring appropriate public beneficial use. Most enabling technologies have the potential for fundamental …

The Saga Continues: Secondary Liability For Copyright Infringement Theory, Practice And Predictions, Connie Davis Powell

Akron Intellectual Property Journal

This article begins by outlining the development of secondary liability theory for copyrights, followed by a discussion highlighting the overly-active role the judiciary has played in its development, and closes with addressing the future of secondary liability for copyrights based on its potential application in current litigation.

Making Others Do The Work: Secondary Liability And The Creation Of A General Obligation To The Copyright Industries, Liam O'Melinn

Akron Intellectual Property Journal

This Essay argues that the growth of secondary liability actions represents a larger attempt to impose a general obligation to protect the copyrights of the content industries, and that the full significance of secondary liability cannot be understood unless it is considered alongside other manifestations of this tendency. This Essay contends that secondary liability takes on a much greater meaning when it is seen as closely related to other efforts in extending responsibility for protecting copyrights: in the Digital Millennium Copyright Act, in various measures intended to increase the government's responsibility for copyright enforcement, in attempts to make universities accountable …

Looking For Fair Use In The Dmca's Safety Dance, Ira S. Nathenson

Akron Intellectual Property Journal

Today, it is encouraging to hear another Senator - now, Senator McCain - speak up for fair use, but it is also worth noting that McCain voted for the Senate version of the DMCA. Regardless, McCain's request to YouTube contains an intriguing premise: implicit in it is the assumption that fair use can be protected under Section 512 as it exists without amendment. In this Article, I test McCain's assumption, asking whether we can interpret Section 512 to better foster fair use. I believe that we can. In this Article, I argue that copyright owners must consider fair or other …

Secondary Liability And The Fragmentation Of Digital Copyright Law, Jacqueline D. Lipton

Akron Intellectual Property Journal

The digital age brought many challenges for copyright law. While offering enticing new formats for the production and dissemination of copyright content, it also raised the specter of large scale digital piracy. Since the end of the 20th century, content industries have reeled to keep up with technological developments that offer significant promise as well as threats of large scale piracy. There has always been some tension between promoting innovation in content creation and promoting innovation in technologies that enable the enjoyment of copyright works, such as photocopiers, audio tape recorders, video tape recorders, and peer-to-peer file sharing systems. The …

Toward Non-Neutral First Principles Of Private Law: Designing Secondary Liability Rules For New Technological Uses, Thomas C. Folsom

Akron Intellectual Property Journal

A series of recent cases revisits secondary liability in intellectual property law, solving some particular problems but without providing completely specified rules that are predictable and principled. Prior law already includes several varieties of secondary liability with a rationale for each. Together, these old and new sources point the way towards a synthesis, which may allow for a designed solution that is more fully specified, at least in respect of new technological uses. When all is said, secondary liability in intellectual property law still turns on two essential questions: (1) is there someone who is liable for direct infringement, and …

Truth In Intellectual Property Revisited: Embracing Ebay At The Edge, Thomas C. Folsom

Akron Intellectual Property Journal

In addition to whatever else it might do to serve the public interest, intellectual property diminishes the commons. To that extent, any particular intellectual property claim intersects the public interest and affects more than just the immediate parties. Not only does intellectual property diminish the commons, but also each of its disciplines contains an almost casually incoherent metaphysic. There is incoherence, if not at the core, at least at the critical edges of intellectual property law that is systemic and fundamental. Notwithstanding over 200 years of practice in the United States, the goal of establishing a sufficiently principled, practical and …

Russia And Allofmp3.Com: Why The Wto And Wipo Must Create A New System For Resolving Copyright Disputes In The Digital Age, Brian A. Benko

Akron Intellectual Property Journal

This article uses Russian law and Russian-based AllofMP3.com to analyze the private dispute resolution system of the World Intellectual Property Organization 14 ("WIPO"), and the nation-based dispute resolution system of the World Trade Organization 15 ("WTO"). Section I provides an overview of AllofMP3.com and the current system of resolving international copyright dispute. Section 11 applies and analyzes the WIPO Center's private party based dispute resolution system, and the WTO's nation based dispute resolution system. Section III proposes a new system for resolving international copyright disputes in the Digital Age. Section IV concludes this article with a few thoughts on the …

"And If It Wasn't For Me[Rrick], Then Where Would You Be Ms. Gypsy Rose Lee?" An Argument For Copyright Protection For Theatre Directors Through A Reasonable Definition Of Theatrical Stage Directions And An Understanding Of The Theatre Company, Carlos A. Guerrero

Akron Intellectual Property Journal

Federal courts have yet to decide whether stage directions are copyrightable works, and it is unlikely that the Tam Lim lawsuit or the Urinetown controversy will bring such a decision. In the past decade, a federal court resolution as to the copyrightability of theatrical stage directions has been delayed by out of court settlements. Additionally, conflicting views by the legal6 and the artistic community's predictions of catastrophic consequences if copyright protection is extended to theatrical directors have blurred the predictability of a resolution. This article argues that theatrical stage directions should be afforded copyright protection. First, this article gives a …

Standing On The Shoulders Of Giants: How A Drastic Remodeling Of 17 U.S.C. § 108 Could Help Save Academia, Savanna Nolan

Journal of Intellectual Property Law

No abstract provided.

Dastar's Next Stand, Mark P. Mckenna

Journal of Intellectual Property Law

No abstract provided.

The Evolution Of Copyright Law And Inductive Speculations As To Its Future, Orit Fischman-Afori

Journal of Intellectual Property Law

No abstract provided.

Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright, And The Birth Of Shakespeare Scholarship, Jeffrey M. Gaba

Journal of Intellectual Property Law

No abstract provided.

The Law Of The Platform, Orly Lobel

Faculty Scholarship

New digital platform companies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. Unsurprisingly then, the platform economy defies conventional regulatory theory. Millions of people are becoming part-time entrepreneurs, disrupting established business models and entrenched market interests, challenging regulated industries, and turning ideas about consumption, work, risk, and ownership on their head. Paradoxically, as the digital platform economy becomes more established, we are also at an all-time high in regulatory permitting, licensing, and protection. The battle over law in the platform is therefore both conceptual and highly practical. …

The Right-Of-Publicity Challenges For Tattoo Copyrights, Yolanda M. King

Nevada Law Journal

This Article is the third and final piece of a series of articles that examine the applicability of intellectual property law to tattoos. The second article in the series, The Enforcement Challenges for Tattoo Copyrights, concluded that copyright owners can and should enforce their rights against users outside of the tattoo artist-customer relationship. This Article explores a different source of intellectual property protection for tattoos: the right of publicity. As tattooing has become increasingly prevalent among celebrities, tattoos have become “one” with the persona of the tattoo bearer. A tattoo that carries the meaning of a celebrity tattoo bearer serves …

Legal Nature Of Emails: A Comparative Perspective, Edina Harbinja

Duke Law & Technology Review

There is currently a conflict between laws and the market in their treatment of email. Laws mandate that emails are not protected as property unless copyrightable or protected by another legal mechanism. But the market suggests that emails are user-owned property without further qualification. Moreover, the nature of email is treated slightly differently between the U.S. and U.K. legal regimes. While the current legal regimes applicable to email in the U.K. and U.S. are reasonable, legal harmonization within these systems, and with the service provider market, should be achieved.

Using Copyright To Remove Content: An Analysis Of Garcia V. Google, Elizabeth Martin

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note will investigate how individuals attempt to use copyright law, instead of seeking damages for emotional distress or privacy, by using Garcia I and Garcia II as examples. Part I will provide background on Garcia I and Garcia II, the facts leading up to the lawsuit, the first decision and the criticism surrounding it, and the second decision. Part II will discuss what other legal methods Garcia may have used to achieve the same result and potentially obtain the same relief if she decided not to sue for copyright infringement. Part III will look beyond Garcia I and Garcia …

The Lost Language Of The First Amendment In Copyright Fair Use: A Semiotic Perspective Of The “Transformative Use” Doctrine Twenty-Five Years On, David Tan

Fordham Intellectual Property, Media and Entertainment Law Journal

It has been twenty-five years since Judge Pierre Leval published his iconic article, “Toward a Fair Use Standard,” urging that courts adopt a new guiding principle of “transformative use” to determine whether an unauthorized secondary use of a copy-righted work is fair. The Supreme Court’s emphatic endorsement of this approach in 1994 has resulted in a remarkable judicial expansion of the transformative use doctrine which today covers virtually any “creation of new information, new aesthetics, new in-sights and understandings.” While the Supreme Court reiterated in Golan v. Holder in 2012 that the fair use defense is one of copyright law’s …

Evil Angel Eulogy: Reflections On The Passing Of The Obscenity Defense In Copyright, James R. Alexander

Journal of Intellectual Property Law

No abstract provided.

A New Hope For Copyright: The U.K. Supreme Court Ruling In Lucasfilm Ltd. V. Ainsworth And Why Congress Should Follow Suit, Kristen Elisabeth Bollinger

Journal of Intellectual Property Law

No abstract provided.

You Look Complicated Today: Representing An Illegal Graffiti Artist In A Copyright Infringement Case Against A Major International Retailer, John Eric Seay

Journal of Intellectual Property Law

No abstract provided.

Copy Game For High Score: The First Video Game Lawsuit, William K. Ford

Journal of Intellectual Property Law

No abstract provided.

University Of New England Library Services Fair Use Checklist, Une Library Services

Library Services Faculty Publications

UNE librarians created this tool to help UNE community members determine whether their activities are within the limits of fair use under Section 107 of the U.S. Copyright Act.

Copyrightx: Harvard University Law School, Sue Ann Gardner

University of Nebraska-Lincoln Libraries: Presentations

Slides of a talk about the 2014 iteration of the CopyrightX course administered by Professor William Fisher of Harvard University Law School.

Dueling Monologues On The Public Domain: What Digital Copyright Can Learn From Antitrust, Timothy K. Armstrong

The University of Cincinnati Intellectual Property and Computer Law Journal

This article, written for the inaugural volume of the University of Cincinnati Intellectual Property and Computer Law Journal, explores the disconnect between contemporary United States intellectual property law and the often quite different consensus views of disinterested expert opinion. Questions concerning how copyright law treats the public domain (that is, uncopyrighted material) supply a lens for comparing the law as it stands with the law as scholars have suggested it should be. The ultimate goal is to understand why a quarter century of predominantly critical scholarship on intellectual property seems to have exerted such limited influence on Congress and …

Two Comparative Perspectives On Copyright's Past And Future In The Digital Age, Timothy K. Armstrong

Faculty Articles and Other Publications

A review of two recent scholarly books on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014), and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014). Both books are meticulously researched and carefully written, and each makes an excellent addition to the literature on copyright. Contrasting both titles in this joint review, however, helps to reveal a few respects in which each work is incomplete; indeed, at times each book reads as a critique of the other.

Baldwin's The Copyright Wars argues that modern debates over …

Unh School Of Law Ip Library: 20th Anniversary Reflection On The Only Academic Ip Library In The United States, Jon R. Cavicchi

Law Faculty Scholarship

[Excerpt] The UNH School of Law Intellectual Property Library celebrates its twentieth anniversary this year. It is a fortuitous time for this look back and for strategic considerations for the future. This anniversary comes at a time in the history of legal education when conditions over the past few years have intensified the analysis of mission and resources for law school libraries. This article is a retrospective review of the history and dynamics surrounding the founding and first twenty years of growth. It is also an analysis of the future growth and mission of the IP Library during times that …

If It’S Broke, Fix It: Fixing Fixation, Megan M. Carpenter

Law Faculty Scholarship

The fixation requirement, once an intended instrument for added flexibility in copyrightability, has become an unworkable standard under modern copyright law. The last twenty-five years have witnessed a dramatic expansion in creative media. Developments in both digital media and contemporary art have challenged what it means to be fixed, and cases dealing with these works reveal how inapposite current interpretations of fixation are for these forms of expression. Yet, getting fixation “right” is important, for it is often the juridical threshold over which idea becomes expression. Thus, we must enable fixation to help define the parameters of creative expression while …

The Interaction Of Exhaustion And The General Law, Aaron K. Perzanowski, Ariel Katz, Guy A. Rub

Faculty Publications

In Statutory Domain and the Commercial Law of Intellectual Property, John Duffy and Richard Hynes argue that IP exhaustion — the doctrine that limits a patentee’s or copyright holder’s control over goods in the stream of commerce — was created and functions exclusively to confine IP law within its own domain and prevent it from displacing other laws.

In this essay, we explain why we are not persuaded. A central theme in Duffy and Haynes work is the argument that the common law did not play a role in the emergence and development of exhaustion. However, we show that the …