Law Commons^™

A System Out Of Balance: A Critical Analysis Of Philosophical Justifications For Copyright Law Through The Lenz Of Users' Rights, Mitchell Longan

University of Michigan Journal of Law Reform

Ultimately, this Article has three goals. The first is to offer an analysis of users’ rights under copyright law from four commonly used theoretical perspectives. These are labor, personality, economic and utilitarian theories. In doing so, this Article will demonstrate that the philosophies that underpin modern copyright law support a broad and liberal set of rights for derivative creativity. It will argue that current treatment of derivative works is unnecessarily conservative from a theoretical perspective. Second, this Article will demonstrate how, in spite of theory that supports a healthy community of derivative creativity, those who practice it have been further …

Pushing Back On Stricter Copyright Isp Liability Rules, Pamela Samuelson

Michigan Technology Law Review

For more than two decades, internet service providers (ISPs) in the United States, the European Union (EU), and many other countries have been shielded from copyright liability under “safe harbor” rules. These rules apply to ISPs who did not know about or participate in user-uploaded infringements and who take infringing content down after receiving notice from rights holders. Major copyright industry groups were never satisfied with these safe harbors, and their dissatisfaction has become more strident over time as online infringements have grown to scale.

Responding to copyright industry complaints, the EU in 2019 adopted its Directive on Copyright and …

Imaginary Bottles, Jessica Litman

Articles

This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade, and …

What We Don't See When We See Copyright As Property, Jessica Litman

Articles

For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which …

What We Don't See When We See Copyright As Property, Jessica Litman

Law & Economics Working Papers

It is becoming increasingly clear that the supposed copyright wars that copyright scholars believed we were fighting – nominally pitting the interests of authors and creators against the interests of readers and other members of the audience – were never really about that at all. Instead the real conflict has been between the publishers, record labels, movie studios, and other intermediaries who rose to market dominance in the 20th century, and the digital services and platforms that have become increasingly powerful copyright players in the 21st. In this essay, adapted from the 13th annual University of Cambridge Center for Intellectual …

Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong

Michigan Telecommunications & Technology Law Review

The functional nature of computer software underlies two propositions that were, until recently, fairly well settled in intellectual property law: first, that software, like other utilitarian articles, may qualify for patent protection; and second, that the scope of copyright protection for software is comparatively limited. Both propositions have become considerably shakier as a result of recent court decisions. Following Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the lower courts have invalidated many software patents as unprotectable subject matter. Meanwhile, Oracle America v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014) extended far more expansive copyright protection …

Why The Copyright Act Expressly Preempts State-Level Public Performance Rights In Pre-1972 Recordings, James Fahringer

Michigan Telecommunications & Technology Law Review

Over the past several years, two former bandmates in the 1960s rock group, The Turtles, have initiated several lawsuits against the popular music streaming services, Pandora and Sirius XM, arguing that the band owns common law copyrights in the sound recordings of its songs, and that these state-level copyrights grant the band an exclusive public performance right in its sound recordings. If accepted, this argument has the potential to significantly distort federal copyright policy because states would not be constrained by any of the balancing features of the Copyright Act, including Digital Millennium Copyright Act (DMCA) safe harbors for Internet …

Creative Commons: An Explainer, Kincaid C. Brown

Law Librarian Scholarship

Copyright protection attaches automatically to original works you create, whether a poem, photograph, painting, song, video, or essay. Copyright limits what others can do with your creative work and protects your original work from, for example, being compiled or reused and sold for profit. If you hold the copyright—and didn’t, say, create the original work in an employment context where it may be subject to being a work for hire—you may want to allow others to use your work for particular purposes. You could individually negotiate a license granting rights to each person, which would undoubtedly take more and more …

Creative Commons: An Explainer, Kincaid C. Brown

Law Librarian Scholarship

Copyright protection attaches automatically to original works you create, whether a poem, photograph, painting, song, video, or essay. Copyright limits what others can do with your creative work and protects your original work from, for example, being compiled or reused and sold for profit. If you hold the copyright—and didn’t, say, create the original work in an employment context where it may be subject to being a work for hire—you may want to allow others to use your work for particular purposes. You could individually negotiate a license granting rights to each person, which would undoubtedly take more and more …

Intellectual Property In Experience, Madhavi Sunder

Michigan Law Review

In today’s economy, consumers demand experiences. From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters— they want to be them. They don the robes of Gryffindor, flick their wands, and drink the butterbeer. The owners of fantasy properties understand this, expanding their offerings from light sabers to the Galaxy’s Edge®, the new Disney Star Wars immersive theme park opening in 2019.Since Star Wars, Congress and the courts have abetted what is now a $262 billion-a-year industry in merchandising, fashioning “merchandising rights” appurtenant to copyrights and trademarks that give fantasy owners …

Paypal Is New Money: Extending Secondary Copyright Liability Safe Harbors To Online Payment Processors, Erika Douglas

Michigan Telecommunications & Technology Law Review

The Digital Millennium Copyright Act (DMCA) has shaped the Internet as we know it. This legislation shields online service providers from secondary copyright infringement liability in exchange for takedown of infringing content of their users. Yet online payment processors, the backbone of $300 billion in U.S. e-commerce, are completely outside of the DMCA’s protection. This Article uses PayPal, the most popular online payment company in the U.S., to illustrate the growing risk of secondary liability for payment processors. First it looks at jurisprudence that expands secondary copyright liability online, and explains how it might be applied to PayPal. Then it …

Fetishizing Copies, Jessica Litman

Book Chapters

Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the …

The End Of Ownership: Personal Property In The Digital Economy, Aaron Perzanowski, Jason Schultz

Books

An argument for retaining the notion of personal property in the products we “buy” in the digital marketplace.

The open access edition of this book was made possible by generous funding from Arcadia – a charitable fund of Lisbet Rausing and Peter Baldwin.

If you buy a book at the bookstore, you own it. You can take it home, scribble in the margins, put in on the shelf, lend it to a friend, sell it at a garage sale. But is the same thing true for the ebooks or other digital goods you buy? Retailers and copyright holders argue that …

From Incentive To Commodity To Asset: How International Law Is Reconceptualizing Intellectual Property, Rochelle Dreyfuss, Susy Frankel

Michigan Journal of International Law

The intellectual property landscape is changing. As Jerry Reichman once observed, intellectual property rights were islands in a sea of the public domain until domestic laws expanded to include such “innovations” as business methods, software, scents, and sounds and turned the public domain into a pond surrounded by a continent of rights. Reichman spoke towards the end of the 20th century, and whatever problems accompanied this change, in truth (to paraphrase Voltaire’s view of the Holy Roman Empire), the concept of “intellectual property rights” was predominantly about neither “property” nor “rights” (nor was it always “intellectual”). Rather, copyright, patent, and …

Avoiding The Next Napster: Copyright Infringement And Investor Liability In The Age Of User Generated Content, Truan Savage

Michigan Business & Entrepreneurial Law Review

Rapid developments in digital technology over the past quarter century have made it easier than ever for people to create and instantly share content. These developments have served as the basis for countless innovations and have spawned some of today’s largest and most profitable companies. As content creation and distribution continues to evolve, businesses seek new ways to profit from these technological innovations. But while businesses continue to develop around new methods of content distribution, the law of copyright, which generally aims to encourage the creation of content, has been slow to adapt. This era of modern technological innovation thus …

Sherlock Holmes And The Case Of The Lucrative Fandom: Recognizing The Economic Power Of Fanworks And Reimagining Fair Use In Copyright, Stacey M. Lantagne

Michigan Telecommunications & Technology Law Review

Fan culture, in the form of fan-created works like fanfiction, fanart, and fanvids, is often associated with the Internet. However, fandom has existed for as long as stories have been told. Sir Arthur Conan Doyle’s Sherlock Holmes stories inspired a passionate fandom long before the age of the Internet. Despite their persistence, fanworks have long existed in a gray area of copyright law. Determining if any given fanwork is infringing requires a fair use analysis. Although these analyses pay lip service to a requirement of aesthetic neutrality, they tend to become bogged down by unarticulated artistic judgments that hinge on …

Silent Similarity, Jessica D. Litman

Articles

From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form—silent movies—had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases—in particular, Nichols v. Universal Pictures—are canonical today. They are not, however, well-understood. In particular, the problem at the heart of …

Reconciling Intellectual And Personal Property, Aaron Perzanowski, Jason Schultz

Articles

This Article examines both the forces undermining copy ownership and the important functions it serves within the copyright system in order to construct a workable notion of consumer property rights in digital media.

Part I begins by examining the relationship between intellectual and personal property. Sometimes courts have treated those rights as inseparable, as if transfer of a copy entails transfer of the intangible right, or retention of the copyright entails ongoing control over particular copies. But Congress and most courts have recognized personal and intellectual property as interests that can be transferred separately. Although the better view, this approach …

Campbell At 21/Sony At 31, Jessica D. Litman

Articles

When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty …

Reinventing Copyright And Patent, Abraham Bell, Gideon Parchomovsky

Michigan Law Review

Intellectual property systems all over the world are modeled on a one-size-fitsall principle. However important or unimportant, inventions and original works receive the same scope of protection, for the same period of time, backed by the same variety of legal remedies. Essentially, all intellectual property is equal under the law. This equality comes at a heavy price, however. The equality principle gives all creators access to the same remedies, even when those remedies create perverse litigation incentives. Moreover, society overpays for innovation through more monopoly losses than are strictly necessary to incentivize production. In this Article, we propose a solution …

The Audience In Intellectual Property Infringement, Jeanne C. Fromer, Mark A. Lemley

Michigan Law Review

Every intellectual property (“IP”) right has its own definition of infringement. In this Article, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP infringement. That patent law, for example, focuses on an expert audience while trademark looks to a consumer audience explains many of the differences in how patent and trademark cases are decided. Expert audiences are likely to evaluate infringement based on the technical similarity between the plaintiff’s and defendant’s works. …

A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance

Michigan Telecommunications & Technology Law Review

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a …

Tollbooths And Newsstands On The Information Superhighway, Brad A. Greenberg

Michigan Telecommunications & Technology Law Review

Countering the perception that speech limitations affecting distribution necessarily reduce access to information, this Essay proffers that copyright expansions actually can increase access and thereby serve important copyright and First Amendment values. In doing so, this discussion contributes to the growing literature and two recent Supreme Court opinions discussing whether copyright law and First Amendment interests can coexist.

Private Copyright Reform, Kristelia A. García

Michigan Telecommunications & Technology Law Review

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 …

Wag The Dog: Using Incidental Intellectual Property Rights To Block Parallel Imports, Mary Lafrance

Michigan Telecommunications & Technology Law Review

Federal law grants owners of intellectual property rights different degrees of control over parallel imports depending on the nature of their exclusive rights. While trademark owners enjoy strong control over unauthorized imports bearing their marks, their protection is less comprehensive than that granted to owners of copyrights and patents. To broaden their rights, some trademark owners have incorporated copyrighted material into their products or packaging, enabling them to block otherwise lawful imports in contravention of the policies underlying trademark law. A 2013 Supreme Court decision has significantly narrowed the importation ban of copyright law, but there may be pressure to …

Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett

Michigan Telecommunications & Technology Law Review

A number of methods currently exist or are being developed to determine where Internet users are located geographically when they access a particular webpage. Yet regardless of the precautions taken by website operators to limit the locations from which they allow access, it is likely that users will find ways to gain access to restricted content. Should the evasion of geolocation constitute circumvention of access controls so that § 1201 of the Digital Millennium Copyright Act ("DMCA") applies? Because location data can properly be considered personally identifiable information ("PII"), this Note argues that § 1201 should not apply absent a …

Whose Social Network Account: A Trade Secret Approach To Allocating Rights, Zoe Argento

Michigan Telecommunications & Technology Law Review

Who has the superior right to a social network account? This is the question in a growing number of disputes between employers and workers over social network accounts. The problem has no clear legal precedent. Although the disputes implicate rights under trademark, copyright, and privacy law, these legal paradigms fail to address the core issue. At base, disputes over social network accounts are disputes over the right to access the people, sometimes numbering in the tens of thousands, who follow an account. This Article evaluates the problem from the perspective of the public interest in social network use, particularly the …

Public Performance Rights In The Digital Age: Fixing The Licensing Problem, G. S. Hans

Michigan Law Review First Impressions

Recent technological advances have allowed consumers to reinvent the mixtape. Instead of being confined to two sides of an audiocassette, people can now create playlists that stretch for hours and days on their computers, tablets, mobile devices, and MP3 players. This, in turn, has affected how people consume and listen to music, both in isolation and in groups. As individuals and business owners in the United States use devices to store, organize, and listen to music, they inevitably run up against the boundaries of U.S. copyright law. In general, these laws affect businesses more often than private individuals, who can …

The Case Against Combating Bittorrent Piracy Through Mass John Doe Copyright Infringement Lawsuits, Sean B. Karunaratne

Michigan Law Review

Today, the most popular peer-to-peer file-sharing medium is the BitTorrent protocol. While BitTorrent itself is not illegal, many of its users unlawfully distribute copyrighted works. Some copyright holders enforce their rights by suing numerous infringing BitTorrent users in a single mass lawsuit. Because the copyright holder initially knows the putative defendants only by their IP addresses, it identifies the defendants anonymously in the complaint as John Does. The copyright holder then seeks a federal court's permission to engage in early discovery for the purpose of learning the identities behind the IP addresses. Once the plaintiff knows the identities of the …

Copyright And The Vagueness Doctrine, Bradley E. Abruzzi

University of Michigan Journal of Law Reform

The Constitution's void-for-vagueness doctrine is itself vaguely stated. The doctrine does little to describe at what point vague laws-other than those that are entirely standardless-become unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three collateral factors that affect its inclination to invalidate a law for vagueness: (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Measured against these factors, copyright law does not meet the vagueness doctrine's minimum requirement of fair notice to the public. Copyright, by …