Intellectual Property Law Commons^™

Copyright, Jane C. Ginsburg

Faculty Scholarship

This chapter o􀁼ers an overview of copyright in general in common law and civil law countries, with an emphasis on the United States (US) and the European Union (EU). It addresses the history and philosophies of copyright (authors’ right), subject matter of copyright (including the requirement of 􀁿xation and the exclusion of “ideas”), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. It also covers the liability of …

The Immanent Rationality Of Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

Why does copyright treat certain kinds of copying as legally actionable? For nearly a century, American copyright thinking has referenced a core consequentialist dogma to answer this question: incentivizing the production of creative expression at minimal social cost in an effort to further social welfare. This rationale, routinely traced back to the Constitution’s seemingly utilitarian mandate that copyright law should “promote the [p]rogress” of the sciences and useful arts, has come to dominate modern copyright jurisprudence and analysis.2 By classifying specific acts of copying as a wrong, and thereby recognizing a “right to the use of one’s expression,” copyright is …

Amazon's Antitrust Paradox, Lina M. Khan

Faculty Scholarship

Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead. Through this strategy, the company has positioned itself at the center of e-commerce and now serves as essential infrastructure for a host of other …

Clarifying The Clear Meaning Of Separability, Shyamkrishna Balganesh

Faculty Scholarship

Speaking of the Copyright Act of 1909, noted copyright scholar Benjamin Kaplan had this to say about the role of judges therein:

[T]he statute, like its predecessors, leaves the development of fundamentals to the judges. Indeed the courts have had to be consulted at nearly every point, for the text of the statute has a maddeningly casual prolixity and imprecision throughout....

Judges, however, who in recent times have inclined against brutality, have run the risk of appearing slightly ridiculous in their tortuous interpretations.

The Copyright Act of 1976 was designed to avoid this imprecision and overt reliance on judicial creativity. …

Causing Copyright, Shyamkrishna Balganesh

Faculty Scholarship

Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation in altogether extraneous considerations. This Article argues that copyright law embodies an unstated yet distinct theory of authorial causation, which connects the element of human agency to a work …

Euro-Yearnings? Moving Toward A "Substantive" Registration-Based Trademark Regime, Jane C. Ginsburg

Faculty Scholarship

In Alan Jay Lerner’s lyric, Professor Henry Higgins laments: "Why can’t a woman be more like a man?" Professor Rebecca Tushnet’s provocative article in effect urges that a U.S. trademark should be more like a European Union trademark, at least with respect to the relationship of registration to substantive protection. The article convincingly exposes the current incoherence in U.S. trademark law – a hybrid between “procedural” and “substantive” registration regimes, in which the traditional emphasis on use-based trademark rights undermines the business-planning benefits that flow from registration.

Before elaborating on the similarities between Tushnet’s suggested reforms of U.S. trademark law …

Fair Use And Fair Dealing: Two Approaches To Limitations And Exceptions In Copyright Law, Shyamkrishna Balganesh, David Nimmer

Faculty Scholarship

Premised on realizing a balance between protection and access, ‘limitations and exceptions’ play an important role in the any copyright system. Jurisdictions around the world are generally thought to adopt one of two possible approaches to structuring limitations and exceptions: (a) the fair dealing approach, which delineates highly specific and carefully-worded exceptions with little room for judicial discretion, and (b) the fair use approach, which relies on more open-ended language and its contextual tailoring by courts. This chapter undertakes a comparative analysis of these two approaches using the Indian and US copyright systems as its focus. It shows that, although …

The Role Of The Author In Copyright, Jane C. Ginsburg

Faculty Scholarship

Two encroachments, one long-standing, the other a product of the digital era, cramp the author’s place in copyright today. First, most authors lack bargaining power; the real economic actors in the copyright system have long been the publishers and other exploiters to whom authors cede their rights. These actors may advance the figure of the author for the moral luster it lends their appeals to lawmakers, but then may promptly despoil the creators of whatever increased protections they may have garnered. Second, the advent of new technologies of creation and dissemination of works of authorship not only threatens traditional revenue …

‘Courts Have Twisted Themselves Into Knots’ (And The Twisted Knots Remain To Untangle): Us Copyright Protection For Applied Art After Star Athletica, Jane C. Ginsburg

Faculty Scholarship

Domestic and international law makers have struggled to determine whether, and to what extent, copyright law should cover works that are both artistic and functional. American courts' application of a statutory “separability” standard has become so convoluted that the U.S. Supreme Court has decided an appeal from a case in which the appellate court expressed the lament quoted in the title of this Chapter. The Chapter will review the genesis and application of the statutory standard, especially in the Supreme Court’s decision in Star Athletica v. Varsity Brands (2017), and, having concluded that the Supreme Court has failed to untangle …

Trademarks And Unfair Competition, Clarisa Long

Faculty Scholarship

Chapter 9 summarizes the dominant law and economic approach to some of the doctrines comprising the two major strands of modern trademark law: classic trademark law, in which trademark protection is justified as reducing consumer search costs and preventing consumer confusion; and dilution law, which is explained by the more traditional intellectual property justifications of encouraging investment in creating valuable marks and protecting producer goodwill. It argues that the culmination of trademark law in the form of protection against dilution represents completion of a full circle of development of unfair competition law. From its start as a means of protecting …

Whither (Not Wither) Copyleft, Eben Moglen

Faculty Scholarship

This article contains an edited version of Professor Eben Moglen’s speech at the SFLC Fall Conference 2016. It explores the topic of Copyleft, enforcement and community engagement from the perspective of one of the key individuals in the rise of Free and Open Source Software from interesting idea to a central pillar of the global technology industry.

The Sum Is More Public Domain Than Its Parts: Us Copyright Protection For Works Of Applied Art Under Star Athletica's Imagination Test, Jane C. Ginsburg

Faculty Scholarship

In Star Athletica v. Varsity Brands, the Supreme Court granted certiorari to resolve confusion in the lower courts regarding the "separability" predicate to copyright protection of decorative features of useful articles. Adopting the Gordian imagery evoked by other appellate courts, the Sixth Circuit in Varsity Brands lamented "[c]ourts have twisted themselves into knots trying to create a test to effectively ascertain whether the artistic aspects of a useful article can be identified separately from and exist independently of the article's utilitarian function." Star Athletica involved the "surface decorations" of stripes, chevrons, and color blocks applied to cheerleader uniforms. While the …

The Court Of Justice Of The European Union Creates An Eu Law Of Liability For Facilitation Of Copyright Infringement: Observations On Brein V. Filmspeler [C-527/15] (2017) And Brein V. Ziggo [C-610/15] (2017), Jane C. Ginsburg

Faculty Scholarship

After a series of decisions in which the Court of Justice of the European Union appeared to be cutting back on the application of the right of communication to the public with respect to the provision of hyperlinks, the Court’s most recent decisions in Brein v. Filmspeler (C-527/15) and Brein v. Ziggo (C-610/15) concerning, respectively, sale of a device pre-loaded with hyperlinks to illegal streaming sites, and The Pirate Bay BitTorrent platform, indicate instead that the Court’s prior caselaw was in fact gradually advancing toward a European harmonization of the law on derivative liability (i.e., liability in the second degree) …

Extended Collective Licenses In International Treaty Perspective: Issues And Statutory Implementation, Jane C. Ginsburg

Faculty Scholarship

National legislation establishing extended collective licenses (ECLs) “authoriz[es] a collective organization to license all works within a category, such as literary works, for particular, limited uses, regardless of whether copyright owners belong to the organization or not. The collective then negotiates agreements with user groups, and the terms of those agreements are binding upon all copyright owners by operation of law.” Albeit authorized under national laws, collective coverage of non-members’ works may pose issues of compatibility with international norms. For example, if non-members must opt-out in order to preserve the individual management of their rights, is the opt-out a “formality” …

United States Response To Questionnaire Concerning Applied Arts Under Ip Law: The Uncertain Border Between Beauty And Usefulness, June M. Besek, Robert E. Bishop, Jane C. Ginsburg, Philippa Loengard, Nathalie Russell

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.

Creative Sparks: Works Of Nature, Selection, And The Human Author, Neal F. Burstyn

Kernochan Center for Law, Media, and the Arts

It is now common knowledge that if you put a bunch of monkeys in a room with a typewriter, they will eventually reproduce the works of Shakespeare. But according to the United States Copyright Office, if you give that same group of monkeys a camera, you do not get copyright in any pictures they may happen to take. In 2011, British wildlife photographer David Slater was in Indonesia when a group of crested black macaques began playing with his camera equipment and snapped some pictures, one of which went viral and proved temporarily profitable for Slater. The popular image, known …

Berne-Forbidden Formalities And Mass Digitization, Jane C. Ginsburg

Faculty Scholarship

This Essay addresses the Berne Convention's prohibition on the imposition of "formalities" on the "enjoyment and the exercise" of copyright, and the compatibility with that cornerstone norm of international endeavors to facilitate mass digitization, notably by means of extended collective licensing and "opt-out" authorizations. In the Berne context, "enjoyment" means the existence and scope of rights; "exercise" means their enforcement. Voluntary provision of copyright notice and of title-searching information on a public register of works and transfers of rights is fully consistent with Berne and should be encouraged. But the Berne Convention significantly constrains member states' ability to impose mandatory …

The Folklore And Symbolism Of Authorship In American Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

Despite its formal commitment to “authorship,” American copyright law pays surprisingly little doctrinal attention to understanding the concept. Originality, taken to be modern copyright law’s proxy for authorship, has come to assume a life of its own, with little regard to the system’s supposed ideals of authorship. What role then does authorship play in modern American copyright law? This Article argues that authorship is best understood as a form of folklore and symbolism in copyright law. Drawing on the anthropological strand of Legal Realism advanced and developed by Thurman Arnold, the Article argues that authorship serves an important symbolic purpose …

Intellectual Property In News? Why Not?, Sam Ricketson, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out …

The Most Moral Of Rights: The Right To Be Recognized As The Author Of One's Work, Jane C. Ginsburg

Faculty Scholarship

The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. Curiously, those rights, as enacted in our copyright laws, have not included a general right to be recognized as the author of one's writings. Yet, the interest in being identified with one's work is fundamental, whatever the conception of the philosophical or policy basis for copyright. The basic fairness of giving credit where it is due advances both the author-regarding and the public regarding aspects of copyright.

Most national copyright laws guarantee the right of attribution (or “paternity”); the leading international copyright …

"Courts Have Twisted Themselves Into Knots": Us Copyright Protection For Applied Art, Jane C. Ginsburg

Faculty Scholarship

In copyright law, the marriage of beauty and utility often proves fraught. Domestic and international law makers have struggled to determine whether, and to what extent, copyright should cover works that are both artistic and functional. The U.S. Copyright Act protects a work of applied art "only if, and only to the extent that, its design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." While the policy goal to separate the aesthetic from the functional is clear, courts' application of the statutory "separability" …

The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh

Faculty Scholarship

Central to modern copyright law is the test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components: actual copying – the question whether the defendant did in fact copy – and improper appropriation – the question whether such copying, if it did exist, was unlawful. Somewhat counterintuitively, though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach …

Debunking The Myth Of The Copyright Troll Apocalypse, Shyamkrishna Balganesh, Jonah B. Gelbach

Faculty Scholarship

Professor Matthew Sag’s Copyright Trolling, An Empirical Study tells a riveting tale of a litigation system run amok.1 A plaintiff files suit in federal court. Each instance of alleged unlawful conduct targeted in the suit may well entail little in the way of actual damages, and for that reason the complaint demands statutory rather than actual damages. The conduct in question is as common as it is allegedly unlawful and, in some people’s views, this conduct isn’t particularly objectionable. And the economics of the litigation in question simply don’t make sense without the aggregation of claims related to many individuals. …

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

Faculty Scholarship

Good faith purchasers for value – individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality – have long obtained special protection under the common law. Despite the seller’s own actions being tainted, these purchasers obtain valid title and are free to transfer the property without restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly, and in good faith, purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property without running afoul of copyright’s distribution right. …

Preliminary Comments On Restatement Of Copyright, Draft 2, Jane C. Ginsburg, June M. Besek

Faculty Scholarship

Thank you for the opportunity to comment on Preliminary Draft 2 of the Restatement of Copyright. These are preliminary comments, given the short time frame provided to review the draft, and we anticipate sending further comments after we’ve had the opportunity to study the draft further, or as a follow-up to the Advisers’ meeting and the Consultative Group meeting on November 10 and 11, 2016, respectively.

United States Response To Questionnaire Concerning Remuneration For The Use Of Works: Exclusivity V. Other Approaches, Bart M.J. Szewczyk, June M. Besek

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.

Robots, Pirates, And The Rise Of The Automated Takedown Regime: Using The Dmca To Fight Piracy And Protect End Users, Zoe Carpou

Kernochan Center for Law, Media, and the Arts

This very second, a battle between robots and pirates is being waged online. Pirates are stealing content from copyright holders and uploading it to various websites. Robots are crawling the Web, searching for pirated content. When a robot encounters pirated content, it is programmed to attack — either by reporting back to the copyright holder, or by going straight to the source and requesting that the material be removed. Sometimes the pirates fight back, re-posting the content online soon after it is taken down or posting newly infringing content. The cycle continues, and the battle rages on.

Generally speaking, “robots” …

Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli

Faculty Scholarship

Copyright generally vests in the author, the human creator of the work. But because, at least until recently, most authors have been ill-equipped to commercialize and disseminate their works on their own, the author has granted rights to intermediaries to market her works. Since most authors are the weaker parties to publishing, production, or distribution contracts, the resulting deal may favor the interests of the intermediary to the detriment of the author’s interests. Many national copyright laws have introduced a variety of corrective measures, from the very first copyright act, the 1710 British Statute of Anne, which instituted the author’s …

Equity's Unstated Domain: The Role Of Equity In Shaping Copyright Law, Shyamkrishna Balganesh, Gideon Parchomovsky

Faculty Scholarship

As used today, the term “equity” connotes a variety of related, but nonetheless distinct, ideas. In most contexts, equity refers to the body of rules and doctrines that emerged in parallel with the common law, and which merged with the common law by the late nineteenth century. At a purely conceptual level, some trace the term back to Aristotle’s notion of epieikeia, or the process of infusing the law with sufficient flexibility to avoid injustice. Lastly, at a largely practical level, a few treat equity as synonymous with a set of remedies that courts can authorize, all of which …

The Private Life Of Drm: Lessons On Privacy From The Copyright Enforcement Debates, Rebecca Wexler

Faculty Scholarship

This Article presents an intellectual history of competing privacy claims and counterclaims in policy debates about copyright enforcement methods. Specifically, it examines debates over Digital Rights Management technologies, or encryption tools that track the use of, and restrict access to, copyrighted information. The Article finds that, historically, information privacy claims in these debates did not lead to determinant outcomes; each argument drawn from a privacy interest corresponds to a counterclaim drawn from that same interest but supporting an opposite policy preference. Moreover, these competing claims on privacy cannot be explained as mere superficial semantics. Rather, they concern a variety of …