Intellectual Property Law Commons^™

Comments On Alrc Discussion Paper 79, Copyright And The Digital Economy, June M. Besek, Jane C. Ginsburg, Philippa Loengard

Faculty Scholarship

We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated "fair use" type exception in Australia, and other related issues.

The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot be …

From Hypatia To Victor Hugo To Larry And Sergey: ‘All The World's Knowledge’ And Universal Authors’ Rights, Jane C. Ginsburg

Faculty Scholarship

Access to ‘all the world’s knowledge’ is an ancient aspiration; a less venerable, but equally vigorous, universalism strives for the borderless protection of authors’ rights. Late 19th-century law and politics brought us copyright universalism; 21st-century technology may bring us the universal digital library. But how can ‘all the world’s knowledge’ be delivered, on demand, to users anywhere in the world (with Internet access), if the copyrights of the creators and publishers of many of those works are supposed to be enforceable almost everywhere in the world? Does it follow that the universal digital library of the near future threatens copyright …

The Tragedy Of The Anticommons: A Concise Introduction And Lexicon, Michael Heller

Faculty Scholarship

This article gives a concise introduction to the ‘tragedy of the anticommons.’ The anticommons thesis is simple: when too many people own pieces of one thing, nobody can use it. Usually, private ownership creates wealth. But too much ownership has the opposite effect – it leads to wasteful underuse. This is a free market paradox that shows up all across the global economy. If too many owners control a single resource, cooperation breaks down, wealth disappears, and everybody loses. Conceptually, underuse in an anticommons mirrors the familiar problem of overuse in a ‘tragedy of the commons.’ The field of anticommons …

Copyright Infringement Markets, Shyamkrishna Balganesh

Faculty Scholarship

Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement – which copyright law grants authors in order to render its exclusive rights operational – has never been thought of as independently assignable, or indeed as the target of investments by third parties. As a result, discussions of copyright law and policy rarely consider the possibility of an acquisition or investment market emerging for actionable copyright claims and the advantages that such a market might hold for copyright’s goals, objectives, …

The Uneasy Case Against Copyright Trolls, Shyamkrishna Balganesh

Faculty Scholarship

The copyright troll and the phenomenon of copyright trolling have thus far received surprisingly little attention in discussions of copyright law and policy. A copyright troll refers to an entity that acquires a tailored interest in a copyrighted work with the sole objective of enforcing claims relating to that work against copiers in a zealous and dogmatic manner. Not being a creator, distributor, performer, or indeed user of the protected work, the copyright troll operates entirely in the market for copyright claims. With specialized skills in monitoring and enforcing copyright infringement, the troll is able to lower its litigation costs, …

Alienability And Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

This chapter examines the interaction between copyright and the concept of alienability to show that it holds important structural and normative lessons for our understanding of the nature of the copyright entitlement, and its limitations. My use of the word ‘interaction’ is deliberate here, since my focus is not just on the question of whether and how inalienability restrictions internal to copyright doctrine motivate our theoretical understanding of copyright and its allied rights (for example, moral rights), a project that others have focused on previously. The chapter will instead attempt to understand how the copyright entitlement has addressed the basic …

Gandhi And Copyright Pragmatism, Shyamkrishna Balganesh

Faculty Scholarship

Mahatma Gandhi is revered the world over for his views on freedom and nonviolence – ideas that he deployed with great success during India’s freedom struggle. As a thinker, he is commonly considered to have been a moral idealist: anti-utilitarian in mindset and deeply skeptical of market mechanisms. Yet, when he engaged with copyright law – as a writer, editor, and publisher – he routinely abjured the idealism of his abstract thinking in favor of a lawyerly pragmatism. Characterized by a nuanced understanding of copyright law and its conflicting normative goals, Gandhi’s thinking on copyright law reveals a reasoned, contextual, …

Stewarding The Common Law Of Copyright, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law is today perceived as principally statutory in origin. The Copyright Act of 1976 is thought to have codified most questions of copyright policy and doctrine, and delegated a fairly limited set of questions to courts for them to resolve incrementally on a case-by-case basis. This is in contrast to prior copyright enactments, which were brief and open-ended in structure, and seemingly envisaged a more active role for courts in rule- and policy-making. Judge Leval thus notes how over time, the idea of a constructive "partnership" between the legislature and courts in making and developing copyright law that once …

The Legal Landscape: Session 1, Laura Gasaway, Jane C. Ginsburg, Maria Pallante, Shira Perlmutter, Richard Rudick

Faculty Scholarship

Good morning everybody, and thanks for coming. I’m June Besek, the Executive Director of the Kernochan Center for Law, Media and the Arts, and we are especially grateful to those of you who planned to come in November, and when that was postponed still came today. We really feel very grateful to you. This symposium is on copyright exceptions for libraries and section 108 reform, and we are doing this in cooperation with the U.S. Copyright Office. I thank Maria, Chris and Karen for all the work that they put into this as well. I want to thank our sponsors …

Copyright 1992-2012: The Most Significant Development?, Jane C. Ginsburg

Faculty Scholarship

On the occasion of the twentieth anniversary of the Fordham Intellectual Property Law & Policy Conference, its organizer, Professor Hugh Hansen, planned a session on “U.S. Copyright Law: Where Has It Been? Where Is It Going?” and asked me to look back over the twenty years since the conference’s inception in order to identify the most important development in copyright during that period. Of course, the obvious answer is “the Internet,” or “digital media,” whose effect on copyright law has been pervasive. I want to propose a less obvious response, but first acknowledge that digital media and communications have presented …

Proto-Property In Literary And Artistic Works: Sixteenth-Century Papal Printing Privileges, Jane C. Ginsburg

Faculty Scholarship

This Study endeavors to reconstruct the Vatican’s precursor system of copyright, and the author’s place in it, inferred from examination of over five hundred privileges and petitions and related documents – almost all unpublished – in the Vatican Secret Archives. The typical account of the precopyright world of printing privileges, particularly in Venice, France and England, portrays a system primarily designed to promote investment in the material and labor of producing and disseminating books; protecting or rewarding authorship was at most an ancillary objective.

The sixteenth-century Papal privileges found in the Archives, however, prompt some rethinking of that story because …

Technological Innovation, International Competition, And The Challenges Of International Income Taxation, Michael J. Graetz, Rachael Doud

Faculty Scholarship

Because of the importance of technological innovation to economic growth, nations strive to stimulate and attract the research and development ("R&D") that leads to that innovation and to make themselves hospitable environments for the holding of intellectual property ("IP"). Tax policies have taken center stage in their efforts to accomplish these goals and to capture a share of the income from technological innovations.

Designing cost-effective methods of supporting technological innovations has, however, become substantially more difficult as the world economy has become more interconnected. Where R&D is performed and where income is earned change in response to the nature and …

United States Response To Questionnaire Concerning Copyright And Related Rights In The “Cloud” Environment, June M. Besek, Philippa Loengard, Idara Udofia

Kernochan Center for Law, Media, and the Arts

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

A New Look At Patent Quality: Relating Patent Prosecution To Validity, Ronald J. Mann, Marian Underweiser

Faculty Scholarship

The article uses two hand‐collected data sets to implement a novel research design for analyzing the precursors to patent quality. Operationalizing patent “quality” as legal validity, the article analyzes the relation between Federal Circuit decisions on patent validity and three sets of data about the patents: quantitative features of the patents themselves, textual analysis of the patent documents, and data collected from the prosecution histories of the patents. The article finds large and statistically significant relations between ex post validity and both textual features of the patents and ex ante aspects of the prosecution history (especially prior art submissions and …

Moral Rights In The U.S.: Still In Need Of A Guardian Ad Litem, Jane C. Ginsburg

Faculty Scholarship

Over ten years ago, in the pages of this Journal, I inquired whether authors’ “moral rights” had come of (digital) age in the U.S. Ever-hopeful at that time, I suggested that then-recent legislation enacted to enable the copyright law to respond to the challenges of digital media might, in addition to its principal goal of securing digital markets for works of authorship, also provide new means to protect authors’ interests in receiving attribution for their works and in safeguarding their integrity. The intervening years’ developments, however, indicate that, far from achieving their majority, U.S. authors’ moral rights remain in their …

Speaking Of Moral Rights: A Conversation Between Eva E. Subotnik And Jane C. Ginsburg, Jane C. Ginsburg, Eva E. Subotnik

Faculty Scholarship

A transcribed conversation about moral rights in the digital age — in respect of some of the legal and technological developments that have occurred since Professor Jane Ginsburg's 2001 essay, Have Moral Rights Come of (Digital) Age in the United States?, 19 Cardozo Arts & Ent. L. J. 9 (2001).

The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh

Faculty Scholarship

Courts and scholars today understand and discuss the institution of copyright in wholly instrumental terms. Indeed, given the forms of analysis that they routinely employ, one might be forgiven for thinking that copyright is nothing more than a comprehensive government-administered scheme for encouraging the production of creative expression and is therefore quite legitimately the subject matter of public law. While this instrumental focus may have the beneficial effect of limiting copyright’s unending expansion, it also serves as a source of distraction. It directs attention away from the reality that copyright is fundamentally a creation of the law and is thus …

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough – or “substantially similar” – for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the …

The Uncertain Future Of "Hot News" Misappropriation After Barclays Capital V. Theflyonthewall.Com, Shyamkrishna Balganesh

Faculty Scholarship

In this Essay, I attempt to disaggregate the Second Circuit’s decision in Barclays Capital to show that while the court may have reached the right conclusion in the end (a position I have argued for previously), its reasoning to reach that conclusion is rather confusing, while at the same time a rich source of information about the future of hot news doctrine. At every stage of its analysis, the Second Circuit went to significant lengths to cabin the reach of the doctrine quite considerably, despite reiterating that it was not abrogating it altogether. In analyzing the opinion, I thus consider …

Duration Of Copyright In Audiovisual Works Under Us Copyright Law, Jane C. Ginsburg

Faculty Scholarship

Calculating the duration of US copyright in audiovisual works can be a daunting task, complicated by issues of transitional law spanning the US Copyright Acts of 1909 and 1976 and the latter’s subsequent amendments. Readers with an inclination for complexity will find their tastes amply satisfied when inquiry turns to the questions of private international law that also come into play when foreign audiovisual works are at issue. Gluttons for punishment will further relish addressing the relationship of the duration of copyright in an audiovisual work to the duration of copyright in the underlying literary work on which the film …

United States Response To Questionnaire Concerning Boundaries And Interfaces With Respect To Copyright And Related Rights, June M. Besek, Jane C. Ginsburg, Lita Helman, Philippa Loengard, Eva Subotnik, Elana Bensoul

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

The Right To Remain Anonymous: Anonymous Speakers, Confidential Sources And The Public Good, Jocelyn Hanamirian

Kernochan Center for Law, Media, and the Arts

In the digital age, the news media gives voice to anonymous speakers in two ways: reporters may extend confidentiality to sources in exchange for newsworthy information, or a news website may host an online comment function that allows readers to post their reactions to content pseudonymously. Of these two groups of anonymous speakers, only online posters enjoy certain First Amendment protection against a subpoena seeking disclosure of their identities.

The reporter’s privilege has always been legally defined as the professional privilege of a reporter to maintain the confidentiality of his sources. Yet as with all evidentiary privileges, the reporter’s privilege …

The (Im)Possibility Of "Standard Technical Measures" For Ugc Websites, Lauren G. Gallo

Kernochan Center for Law, Media, and the Arts

In today’s highly litigious legal landscape, one might doubt that there could ever be an “open, fair, voluntary” agreement between copyright owners and service providers to police infringement. Congress nevertheless envisioned such a consensus when it developed § (i) of the Digital Millennium Copyright Act (DMCA): “Conditions for [Safe Harbor] Eligibility.” An often-overlooked provision of the DMCA, § 512(i) directs right holders and Internet service providers to work together and agree on “standard technical measures” to “identify or protect copyrighted works.” In addition to being the product of consensus, these measures must be “available ... on reasonable and nondiscriminatory terms” …

Audiovisual Works And The Work For Hire Doctrine In The Internet Age, John L. Schwab

Kernochan Center for Law, Media, and the Arts

The work for hire doctrine is a legal mechanism by which the creator of an artistic work’s employer is deemed the author of that work. While, historically, such employer ownership schemes were not recognized by courts, today the work for hire doctrine is a firmly embedded part of American copyright law. In particular, work for hire has developed into an essential tool of the audiovisual entertainment industry. As discussed in Part I.B, infra, there are a number of reasons that work for hire is a particularly useful ownership allocation scheme for audiovisual works.

Modern technological developments are, however, rapidly altering …

"European Copyright Code" – Back To First Principles (With Some Additional Detail), Jane C. Ginsburg

Faculty Scholarship

The "Wittem Group" of copyright scholars has proposed a "European Copyright Code," to "serve as an important reference tool for future legislatures at the European and national levels." Because, notwithstanding twenty years of Directives and a growing ECJ caselaw, copyright law in EU Member States continues to lack uniformity, the Wittem Group’s endeavor should be welcomed, at least as a starting point for reflection on the desirable design of an EU copyright regime. Whether or not the proposed Code succeeds in influencing national or Community legislation, it does offer an occasion to consider the nature of the rights that copyright …

Copyright In The Digital Environment: Restoring The Balance, Jane C. Ginsburg

Faculty Scholarship

Good evening. Please find your seats, and it's wonderful to see so many people here. Welcome to the Twenty-Fourth Annual Manges Lecture. The Horace S. Manges Lecture and Conference Fund was established by the firm of Weil, Gotshal and Manges in memory of Horace S. Manges, Columbia Law School Class of 1919. Mr. Manges was a distinguished trial lawyer who worked on behalf of countless writers and publishers.

Tonight's speaker, Dr. Francis Gurry, was appointed Director General of the World Intellectual Property Organization, WIPO, on October 30, 2008. During a career at WIPO that began in 1985, Francis Gurry was …

Impartial Patents, Clarisa Long

Faculty Scholarship

Over the past decade or more, a rising sense of dissatisfaction with patent law has begun to creep across the patent community. A number of factors no doubt have contributed to this sense of dissatisfaction, among them the perception that patents are too often being enforced by “trolls” (if you don’t like them) or “nonpracticing entities” (if you want to remain neutral). Professor Parchomovsky and Mr. Mattioli propose a solution in which they create two new forms of patent protection that they call “quasi-patents” and “semi-patents” – or generically, “partial patents.” Partial patents are designed to be cheaper to obtain …

Hot News: The Enduring Myth Of Property In News, Shyamkrishna Balganesh

Faculty Scholarship

The “hot news” doctrine refers to a cause of action for the misappropriation of time-sensitive factual information that state laws afford purveyors of news against free riding by a direct competitor. Entirely the offshoot of the Supreme Court’s decision in International News Service v. Associated Press, the doctrine enables an information gatherer to prevent a competitor from free riding on its efforts at collecting and distributing timely information. Over the last few years, newsgatherers of different kinds have begun using the doctrine with increased frequency, believing it to create and protect an ownership interest in news. This Article argues …

Making Coasean Property More Coasean, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

In his pioneering work on transaction costs, Ronald Coase presupposed a picture of property as a bundle of government-prescribed use rights. Not only is this picture not essential to Coase’s purpose, but its limitations emerge when we apply Coase’s central insights to analyze the structure of property itself. This leads to the Coase corollary: in a world of zero transaction costs, the nature of property does not matter to allocative efficiency. However, as with the Coase theorem, the real implication is for our world of positive transaction costs: we need to subject the notion of property to a comparative institutional …

United States Response To Questionnaire Concerning The Terms Of Protection In The Field Of Copyright And Related Rights, June M. Besek, Jane C. Ginsburg, N. Orly Leventer, Joshua L. Simmons

Faculty Scholarship

No abstract provided.