Intellectual Property Law Commons^™

Rca V. Whiteman: Contested Authorship, Copyright, And The Racial Politics Of The Fight For Property Rights In Musical Recordings In The 1930s, Kurt Newman

Studio for Law and Culture

Between the Progressive Era and World War II, African American jazz music became the source of big profits for some white entrepreneurs in the United States. The encounter between whites and jazz was both a propertization and a privatization of African American group resources. While new technologies of recording and radio broadcasting were critical factors facilitating these cultural enclosures, the sine qua non was the embeddedness of American intellectual property law in the logic of white supremacy. In this paper, I focus on the popular jazz bandleader Paul Whiteman, best known to most contemporary legal scholars as the defendant in …

"The Sole Right ... Shall Return To The Authors": Anglo-American Authors' Reversion Rights From The Statute Of Anne To Contemporary U.S. Copyright, Lionel Bently, Jane C. Ginsburg

Faculty Scholarship

The rise in the seventeenth and eighteenth centuries of a professional class of writers stimulated authors' demands for better remuneration from their writings. The increase in authors who sought to live from their work, rather than from patronage or personal fortune, likely provided at least one impulse for the author-protective provisions of the 1710 Statute of Anne. Under the regime of printing privileges that preceded the Statute of Anne, authors generally received from publisher-booksellers a one-time payment, made when the authors surrendered their manuscripts for publication. Authors whose works enjoyed particularly high demand might negotiate additional payments for new editions …

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

Faculty Scholarship

Intellectual property is today thought to be principally of statutory origin. Discussions of the subject invariably revolve around a close scrutiny of the federal statutes involved. Indeed, the frequency with which Congress amends the patent and copyright statutes seems to leave little doubt that it alone determines intellectual property's precise content and coverage. Nevertheless, there exists a rather robust body of state law that is almost entirely the creation of state courts and is directed at creating entitlements in information, ideas, expression, goodwill, one's image, and other related intangibles. These rights regimes are in turn collectively referred to as “common …

International Issues: Which Country's Law Applies When Works Are Made Available Over The Internet, Jane C. Ginsburg

Faculty Scholarship

My topic is International Implications, a topic that would not exist but for the Internet. When access to archival materials was on a physical basis, patrons came to the archive and consulted the material on site; the material did not leave the archive, much less get sent overseas. Even digitized materials, if consulted on site, do not present the problems that arise if the archives puts this material on a website, which is accessible around the world, that ubiquity being the default condition ofthe Internet.

Let us consider some problems that might arise and which have international consequences. First of …

User-Generated Content Sites And Section 512 Of The Us Copyright Act, Jane C. Ginsburg

Faculty Scholarship

This book chapter considers the liability of entrepreneurs of ‘user-generated content’ (UGC) sites. These immensely popular fora, such as YouTube and My Space, enable their participants to post and view a great variety of content, not all of it in fact generated by the posting user. The legislative compromise worked out between telecommunications providers and content owners in the 1998 ‘Digital Millennium Copyright Act’ provides the statutory framework, at once insulating the operators of UGC sites from debilitating copyright sanctions, while still affording meaningful relief to copyright owners. The statutory criteria to qualify for the section 512(c) safe harbor are …

A Common Lawyer's Perspective On Contrefaçon, Jane C. Ginsburg

Faculty Scholarship

Contrefaçon in French copyright law examines the scope of French copyright through the lens of remedies. Contrefaçon is the act to which certain civil and criminal sanctions attach. Viewed from this angle, the history of French copyright law tells a tale of the slow emergence of a unified concept of the wrongful act, covering not only the manufacturing of copies but also public performances, live and through transmissions. The emphasis on contrefaçon reveals the continuity of the revolutionary authors' right of 1793 with the ancient régime of printing regulation, with unauthorized production of physical copies of books remaining the essence …

Panel I: The Patent Landscape With Bilski On The Map, Jeanne C. Fromer, James W. Dabney, Clarisa Long, Brian P. Murphy

Faculty Scholarship

Welcome to the 2009 Fordham Intellectual Property, Media and Entertainment Law Journal’s Symposium titled, “Functionality: At the Crossroads of IP.” My name is Regina Schaffer-Goldman, and I am the Editor-in- Chief of the 20th Volume of the Journal, which is more affectionately known as the IPLJ.

We are so pleased to see the culmination of many months of preparation today. It is the IPLJ’s 20th Anniversary Edition, and we wanted to commemorate this occasion with a fantastic Symposium. As you will see, we have assembled a truly all-star group of legal scholars and practitioners today.

The U.S. Experience With Mandatory Copyright Formalities: A Love/Hate Relationship, Jane C. Ginsburg

Faculty Scholarship

Copyright formalities – conditions precedent to the existence or enforcement of copyright, such as provision of information about works of authorship that will put the public on notice as to a work’s protected status and its copyright ownership, or deposit of copies of the work for the national library or other central authority, or local manufacture of copies of works of foreign origin – have performed a variety of functions in US copyright history. Perhaps of most practical importance today, formalities predicate to the existence or enforcement of copyright can serve to shield large copyright owners who routinely comply with …

United States Response To Questionnaire, June M. Besek, Jane C. Ginsburg, Caitlin Grusauskas

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 Law, Culture, And Economics Of Fashion, C. Scott Hemphill, Jeannie Suk

Center for Contract and Economic Organization

Fashion is one of the world’s most important creative industries. It is the major output of a global business with annual U.S. sales of more than $200 billion — larger than those of books, movies, and music combined. Everyone wears clothing and inevitably participates in fashion to some degree. Fashion is also a subject of periodically rediscovered fascination in virtually all the social sciences and the humanities. It has provided economic thought with a canonical example in theorizing about consumption and conformity. Social thinkers have long treated fashion as a window upon social class and social change. Cultural theorists have …

Accession And Original Ownership, Thomas W. Merrill

Faculty Scholarship

Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide variety of areas, from determining rights to baby animals and growing crops to determining ownership of derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information cost burdens on society. But …

Subsidizing Creativity Through Network Design: Zero Pricing And Net Neutrality, Robin S. Lee, Tim Wu

Faculty Scholarship

Today, through historical practice, there exists a de facto ban on termination fees – also referred to as a “zero-price” rule (Hemphill, 2008) – which forbids an Internet service provider from charging an additional fee to a content provider who wishes to reach that ISP’s customers. The question is whether this zero-pricing structure should be preserved, or whether carriers should be allowed to charge termination fees and engage in other practices that have the effect of requiring payment to reach users. This paper begins with a defense of the de facto zero-price rule currently in existence. We point out that …

Patent Exhaustion And Implied Patent License In Connection With Free And Open Source Software, Anna Haapanen

LL.M. Essays & Theses

This study examines the patent law doctrines of patent exhaustion and implied patent license, and their application to the commercial use of free and open source software (FOSS), an area not thoroughly examined despite the doctrines' otherwise well-established preconditions. The analysis first clarifies the preconditions, scope and key differences of the two doctrines, then applies them to the sale and licensing of FOSS components under the BSD, MIT and GPLv2 licenses. The study addresses the risk that technology companies distributing patented FOSS components may inadvertently dilute their own patent portfolios through exhaustion or implied licensing. It concludes that the patent-related …

Tiered Originality And The Dualism Of Copyright Incentives, Shyamkrishna Balganesh

Faculty Scholarship

In a a well argued and thought-provoking new article, Gideon Parchomovsky and Alex Stein attempt to give copyright’s requirement of originality real meaning, by connecting it to the system’s avowed institutional goals.1 To this end, they focus on disaggregating originality into three tiers and providing creative works within each tier with a different set of rights and liabilities. Parchomovsky and Stein are indeed
correct to lament the meaninglessness of originality under current copyright doctrine. Yet their proposal does not quite fully explore the incentive effects of differentiated originality, especially as between upstream and downstream creators. Nor does it tell us …

Debunking Blackstonian Copyright, Shyamkrishna Balganesh

Faculty Scholarship

More than two decades ago, in attempting to make sense of the structural dissonance between copyright and free expression, the U.S. Supreme Court famously declared that copyright was intended to be “the engine of free expression.” Ironically, this characterization was at the time intended as little more than a rhetorical device. In that very case, the Court proceeded immediately thereafter to analyze copyright as a “marketable” property right and conclude that absent a showing of market failure, neither fair use nor the First Amendment would preclude a finding of infringement. Instead of injecting a new set of values into copyright …

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …

The Pto And The Market For Influence In Patent Law, Clarisa Long

Faculty Scholarship

As statutory schemes go, the patent statute has been relatively stable from 1952 to the present. In contrast to copyright law, where Congress has taken a close – indeed at times intense – interest in the details of the statutory scheme, legislative intervention into the patent statute, when it has occurred, has been more limited and narrower in scope. For many reasons, however, patent law has been disequilibrating over time, and calls for patent reform have been increasing in intensity. One of the many factors contributing to this disequilibration in recent years has been the ongoing emergence of the U.S. …

Contracts, Orphan Works, And Copyright Norms: What Role For Berne And Trips?, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses the extremes of private ordering, and the extent to which the principal multilateral copyright instruments, the Berne Convention and the TRIPs Accord, limit the range of State responses to the problems encountered at the far ends of the copyright-contract spectrum. At one end, we encounter private ordering at its most aggressive, in which private parties enter into agreements (or, more likely, the stronger party coerces the weaker parties, who may be mass market consumers) to protect subject matter or rights excluded from the ambit of copyright's exclusivity. At the other end, the difficulties arise not from overweening …

The Author's Place In The Future Of Copyright, Jane C. Ginsburg

Faculty Scholarship

Vesting copyright in Authors – rather than exploiters – was an innovation in the 18th century. It made authorship the functional and moral center of the system. But all too often in fact, authors neither control nor derive substantial benefits from their work. In the copyright polemics of today, moreover, authors are curiously absent; the overheated rhetoric that currently characterizes much of the academic and popular press tends to portray copyright as a battleground between evil industry exploiters and free-speaking users. If authors have any role in this scenario, it is at most a walk-on, a cameo appearance as victims …

Recording Artists, Work For Hire, Employment, And Appropriation, Matt Stahl

Studio for Law and Culture

Authorship and ownership exist in a curious relation in U.S. copyright law. In theory and common sense, authorship underwrites and is the condition of ownership, but in practice ownership can establish authorship retroactively. Distinctions between proprietary and non-proprietary creative cultural workers, in this view, turn in no essential way on evidence of “creativity” or the investment of “personality” in cultural creation. This paper examines a legislative struggle between recording artists and the recording industry over the status of their stock-in-trade, sound recordings. In 2000, recording artists obtained the repeal of a 1999 law allocating authorship and ownership of recordings to …

Separating The Sony Sheep From The Grokster Goats: Reckoning The Future Business Plans Of Copyright-Dependent Technology Entrepeneurs, Jane C. Ginsburg

Faculty Scholarship

In MGM v. Grokster, the U.S. Supreme Court established that businesses built from the start on inducing copyright infringement will be held liable, as judges will frown on drawing one's start-up capital from other people's copyrights. The Court's elucidation of the elements of inducement suggests that even businesses not initially built on infringement, but in which infringement comes to play an increasingly profitable part, may find themselves liable unless they take good faith measures to forestall infringements. This Article addresses the evolution of the U.S. judge-made rules of secondary liability for copyright infringement, and the possible emergence of an obligation …

Tolerated Use, Tim Wu

Faculty Scholarship

"Tolerated use" is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated, use of copyrighted works. Such patterns of mass infringement have occurred before in copyright history, though perhaps not on the same scale, and have usually been settled with the use of special laws, called compulsory licensing regimes, more familiar to non-copyright scholars as liability rules. This paper suggests that, in present times, a different and slightly unusual solution to the issue of widespread illegal use is emerging-an "opt-in" system for copyright holders, that is in property terms a rare species of ex post …

Recent Developments In Us Copyright Law: Part I – "Orphan" Works, Jane C. Ginsburg

Faculty Scholarship

This Comment, after a brief review of the nature of the orphan works problem and prior attempts to resolve it in the US, will analyze the current bills' provisions, both with respect to the limitation of remedies that constitutes the proposals' centerpiece, and to the conditions required to qualify for the limitation. I will also compare the US proposals with current European initiatives, and will assess the compatibility of the US proposals with international treaty norms, as well as the cross-border consequences of inconsistent US and EU orphan works regimes. I will conclude with some suggestions for amending the US …

Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg

Faculty Scholarship

The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for "fair use." In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of "copy;" the reach of the distribution right on "distribute copies" and "transfer of ownership;" the range of the public performance right on "public" and "perform." Entrepreneurs and users …

The Melting Of Patent Law, Eben Moglen

Faculty Scholarship

In this special comment, the author posits that the patent system as it stands is archaic and oppressive, and has neither intellectual nor moral support. Having veered away from its original goals, by virtue of the change in the technological and functional basis of government, it instead serves as a justification for inequalities of wealth distribution. The author argues that substantial reform is required that would shift the balance in patent law from monopolistic greed to public interest, paving the way for access to knowledge.

Rethinking Copyright: Property Through The Lenses Of Unjust Enrichment And Unfair Competition, Shyamkrishna Balganesh

Faculty Scholarship

For some time now, scholars have come to recognize the existence of numerous structural infirmities deeply embedded within the modern copyright system. Most of these infirmities have been attributed to internal tensions within copyright law and policy, including the competing philosophies of access and control, use and exclusion, and rights and exceptions. Professor Stadler’s insightful article documents these tensions and proposes a new way of mediating them. She argues that copyright law is best understood as instantiating a restriction
on unfair competition and, consequently, that it should do little more than protect creators of original works from “competitive harm” in …

"See Me, Feel Me, Touch Me, Hea[R] Me" (And Maybe Smell And Taste Me, Too): I Am A Trademark – A Us Perspective, Jane C. Ginsburg

Faculty Scholarship

The preceding chapter, “Between a sign and a brand,” addresses the current law in the UK and the EU regarding which signs can be a registered trademark, and the scope of protection a trademark receives. Jennifer Davis also considers the extent to which that scope does or should cover the more ineffable subject matter of “brand values.” This comment from the perspective of United States trademark law will follow a similar plan. It first will address what is (and is not) a trademark, focusing on the extensions of trademarks beyond traditional word marks and design marks (logos; trade dress [get-up]) …

Our Uniform Patent System, Clarisa Long

Faculty Scholarship

Patent reform arouses passions among the affected industries, whether they are plaintiffs or defendants, willing users or unwilling participants in the patent system. The key question, therefore, is: How should we structure the patent system in order to best promote innovation in the U.S. economy?

The Pros And Cons Of Strengthening Intellectual Property Protection: Technological Protection Measures And Section 1201 Of The Us Copyright Act, Jane C. Ginsburg

Faculty Scholarship

The recent announcement (in late November 2006) of the Copyright Office's triennial rulemaking to identify "classes of works" exempt from the § 1201(a)(1) prohibition on circumvention of a technological measure controlling access to copyrighted works in part occasions this assessment of the judicial and administrative construction of this chapter of the 1998 Digital Millennium Copyright Act. The current Rulemaking appears more innovative than its predecessors, particularly in defining the exempted class of works by reference to the characteristics of the works' users. Copyright owner overreaching or misuse may also underlie the relative vigor of this Rulemaking: if producers of devices …

On Copyright's Authorship Policy, Tim Wu

Faculty Scholarship

Making authors the masters of their own destiny has long been a stated aspiration of copyright. Yet more often than not, the real subjects of American copyright are distributors – book publishers, record labels, broadcasters, and others – who control the rights, bring the lawsuits, and take copyright as their "life-sustaining protection." Much of modern American copyright history, and particularly its legislative history, revolves on distributors either demanding more industry protection or fighting amongst themselves. It is distributors who make the great financial investments in copyrighted works, and distributors who arguably most need the incentives and protections that the system …