Intellectual Property Law Commons^™

The Anti-Bootlegging Provisions: Congressional Power And Constitutional Limitations, Craig W. Dallon

Vanderbilt Journal of Entertainment & Technology Law

Courts and scholars have considered the constitutional validity of 17 U.S.C. § 1101 (civil), and 18 U.S.C. § 2319A (criminal), known together as "the anti-bootlegging provisions." These provisions prohibit unauthorized recording, copying, and distribution of live musical performances. The provisions have been challenged in three cases, resulting in five published opinions. Two district court opinions held the provisions unconstitutional, but subsequent opinions vacated those decisions. Notwithstanding a sharp division among copyright scholars, the courts have upheld these provisions. The discussion surrounding them is part of a continuing struggle to ascertain limits on congressional power to regulate copying and distribution of …

The Kindle Controversy: An Economic Analysis Of How The Amazon Kindle's Text-To-Speech Feature Violates Copyright Law, Jeremy B. Francis

Vanderbilt Journal of Entertainment & Technology Law

In 2009, Amazon released the Kindle 2 with a text-to-speech feature. This feature allows users of the Kindle 2 to download software to the device that will read e-books aloud. Authors and publishers of e-books immediately objected to the feature, arguing that it essentially created an unauthorized audiobook. Amazon maintained the legality of the text-to-speech feature, arguing that it does not copy, perform, or create a derivative work. Amazon decided to avoid a legal battle by allowing rightsholders to decide whether to enable the text-to-speech feature for each individual title. The copyright community, however, responded swiftly and nearly unanimously, siding …

What's Wrong With U.S.?: Why The United States Should Have A Public Performance Right For Sound Recordings, William Henslee

Vanderbilt Journal of Entertainment & Technology Law

This Article discusses the need for the United States to implement a public performance royalty for sound recordings. Under the current system, song writers are compensated for the use of their musical works, but performers on sound recordings do not receive any compensation. Radio and television stations currently pay the performing rights societies a royalty for playing the sound recordings, but they do not pay a performance royalty to the artists who perform the music and record companies that promote and release the sound recordings. Proposed legislation will add a performance royalty for artists and record companies to the current …

Keep America Exceptional! Against Adopting Japanese And European-Style Criminalization Of Contributory Copyright Infringement, Salil K. Mehra

Vanderbilt Journal of Entertainment & Technology Law

This brief Article, written in connection with a Symposium hosted by the Vanderbilt Journal of Entertainment and Technology Law, addresses nascent criminal enforcement against contributory copyright infringement in connection with P2P file sharing. Using Judge Posner's analysis in the Aimster case as a lens, it discusses recent cases in Japan and Sweden. This Article contends that criminalization involves an inherent uncertainty involving an innovator's knowledge of, and intent for, the future uses of the platform by others. Despite the difficulty of this task, since Japan and the E.U. have seen criminal prosecutions brought against contributory infringers, it should not evoke …

Information Wars And The Challenges Of Content Protection In Digital Contexts, Raymond T. Nimmer

Vanderbilt Journal of Entertainment & Technology Law

We are in the midst of a fundamental conflict in law and policy between those who favor maintaining and expanding copyright and related rights in the digital context ("rights enhancers"), and those who favor letting rights atrophy ("rights restrictors'). This Article argues that strong intellectual property rights are essential. At minimum, they are important to support creativity in contexts where the creation, collection, or distribution of the content requires substantial investment of time and resources. The case for allowing creators' rights to weaken is both untested and structurally suspect. Copyright law must construct a balance that fully supports creative activity …

What's In A Name?: Predictably Regulating Cyberfraud To Protect The Democratic Political Process, Whitney C. Boshers

Vanderbilt Journal of Entertainment & Technology Law

In recent elections, political candidates have capitalized on the Internet as a central organizing resource. As a result of the low-cost, high-reward nature of campaign websites, some candidates have begun to register Web addresses--or domains--in opponents' names in order to disrupt the democratic political process. Engaging in a practice known as cyberfraud, these individuals register for domains containing the candidate's name, such as 'firstnamelastname.com." Then, instead of finding themselves on the candidate's official campaign website, voters access a website operated by the candidate's opponent that contains misleading or outright false information. Unfortunately, most political candidates have little recourse for such …

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

Vanderbilt Law Review

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 …

Reinventing Lisbon: The Case For A Protocol To The Lisbon Agreement (Geographical Indications), Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The Doha Development Agenda (Doha Round) of multilateral trade negotiations at the World Trade Organization (WTO) may fail unless a solution to the establishment of a multilateral register for geographical indications on wines and spirits (GIs) foreseen in the TRIPS Agreement is found. Failure of the Doha Round would entail serious intended and unintended consequences for the world trading system. Europe’s insistence on a Doha deal on GIs in now accompanied by demands from several developing countries for an extension of GI protection to products other than wines and spirits. Those demanders consider the current emphasis on alcoholic beverages to …

Taming The Derivative Works Right: A Modest Proposal For Reducing Overbreadth And Vagueness In Copyright, Christina Bohannon

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court recently decided United States v. Stevens, a case challenging the constitutionality of a federal statute that punishes commercial depictions of animal cruelty, such as videos of dog fights. Concluding that the statute prohibited a good deal of speech that was unrelated to eradicating illegal animal cruelty, the Court held that the statute was substantially overbroad and therefore invalid under the First Amendment.

This case and other First Amendment cases help to shed light on the problems of overbreadth and vagueness in copyright law, particularly the derivative works right. The copyright holder's derivative works right prohibits others from …

The Teaching Function Of Patents, Sean B. Seymore

Vanderbilt Law School Faculty Publications

In theory, a patent serves the public good because the disclosure of the invention brings new ideas and technologies to the public and induces inventive activity. But while these roles inherently depend on the ability of the patent to disseminate technical knowledge, the teaching function of patents has received very little attention. Indeed, when the document publishes, it can serve as a form of technical literature. Because patents can, at times, communicate knowledge as well as, or better than, other information sources, patents could become a competitive source of technical information. Presently, however, patents are rarely viewed in this manner. …

Beyond Creativity: Copyright As Knowledge Law, Michael J. Madison

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court's copyright jurisprudence of the last 100 years has embraced the creativity trope. Spurred in part by themes associated with the story of "romantic authorship" in the 19th and 20th centuries, copyright critiques likewise ask, "Who is creative?" "How should creativity be protected (or not) and encouraged (or not)?" and "Why protect creativity?" Policy debates and scholarship in recent years have focused on the concept of creativity in framing copyright disputes, transactions, and institutions, reinforcing the notion that these are the central copyright questions. I suggest that this focus on the creativity trope is unhelpful. I argue that …

Losing My Edge: The Copyright Implications Of Audio Blogging And Why Blogs Matter To The Music Industry, Steven M. Reilly

Vanderbilt Journal of Entertainment & Technology Law

In the past decade, the information distribution channels for music have changed dramatically. Not only have they largely moved from radio and print to online sources, but many audioblogs have formed to cover various niches according to the individual tastes of bloggers. This democratization of music criticism has been popular with listeners, as the information is easily and immediately available as well as tailored to a particular interest.

A defining feature of the audioblog is the inclusion of a downloadable MP3 in each post. In some cases, especially for more popular audioblogs, the download is approved by the copyright holder. …

When Users Are Authors: Authorship In The Age Of Digital Media, Alina Ng

Vanderbilt Journal of Entertainment & Technology Law

This Article explores what authorship and creative production mean in the digital age. Notions of the author as the creator of the work have, since the passage of the Statute of Anne in 1710, provided a point of reference for recognizing ownership rights in literary and artistic works in conventional copyright jurisprudence. The role of the author as both the creator and the producer of a work has been seen as distinct and separate from that of the publisher and user. Copyright laws and customary norms protect the author's rights in his creation, and provide the incentive to create. They …

Libraries, Digital Content, And Copyright, Laura N. Gasaway

Vanderbilt Journal of Entertainment & Technology Law

Libraries use, acquire, create and host generate digital content. They digitize their existing collections of works such as letters, diaries and manuscripts and post them on library websites. Increasingly, libraries are utilizing digital technology to preserve library works which may or may not be made available to the public. Libraries also create, manage and host user generated content such as posts on discussion boards, blogs, wikis, RSS feeds, social bookmarking, tagging, and social networks. Libraries use user generated content for internal library purposes, such as displays and events and for teaching. Further, libraries often are asked to assist users who …

Dead On The Vine: Living And Conceptual Art And Vara, Charles Cronin

Vanderbilt Journal of Entertainment & Technology Law

The Visual Artists Rights Act of 1990 (VARA) broadened general copyright protection under U.S. law by granting to artists who have created certain copyrightable physical works of visual art, the moral rights of attribution and integrity. Since the time of VARA's enactment (and for some time before) many artists have worked with unconventional genres and media to produce art that is not comfortably accommodated among the visual art works contemplated by VARA. An increasing number of recent works of Conceptual and Appropriationist Art raise doubts about fixation and original expression, both of which are required for copyrightability which, in turn, …

Promoting Creativity Through Copyright Limitations: Reflections On The Concept Of Exclusivity In Copyright Law, Christophe Geiger

Vanderbilt Journal of Entertainment & Technology Law

Do copyright limitations have the ability to promote creativity and innovation in an effective way? This question may initially sound astonishing because this incentive function is traditionally attributed to the exclusive rights and not to their limitations. However, it should not be forgotten that innovation often builds on existing creations. As a consequence, by depriving the copyright holder of the right to consent to certain acts, one might in turn encourage creative uses. In addition, it is possible for legislatures to draft limitations in order to guarantee that the permitted uses are not for free by providing for a just …

Is That Really Me?: Social Networking And The Right Of Publicity, Rachel A. Purcell

Vanderbilt Journal of Entertainment & Technology Law

Social networking websites are ubiquitous in modern culture and popular with people of all ages and demographics. Operators of this kind of site, which consist largely of third party generated content, are immune from many types of civil liability for third party postings under the Communications Decency Act. However, the Act does not immunize these providers from intellectual property right infringements. Recent court decisions suggest that this immunity exception may extend not only to federal intellectual property rights, but state intellectual property rights like the right of publicity. This Note will evaluate the emerging circuit split regarding state intellectual property …

Unveiling The Distinction Between The University And Its Academic Researchers: Lessons For Patent Infringement And University Technology Transfer, Jennifer Carter-Johnson

Vanderbilt Journal of Entertainment & Technology Law

This Article explores the idea that a faculty member acting in the role of an academic researcher in the scientific disciplines should be viewed in the context of patent law as an autonomous entity within the university rather than as an agent of the university. The structure of the university laboratory within the university and the social norms associated with the activities that members of the research laboratory conduct supports such a view. Additionally, the data from the implementation of the Bayh-Dole Act reveal that universities and faculty scientists have different goals and motivations regarding the transfer of new technology …

I Put You There: User-Generated Content And Anticircumvention, Rebecca Tushnet

Vanderbilt Journal of Entertainment & Technology Law

This Article discusses recent rulemaking proceedings before the Copyright Office concerning the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). During these proceedings, non-institutionally affiliated artists organized to assert their interests in making fair use of existing works, adding new voices to the debate. A proposed exemption for noncommercial remix video is justified to address the in terrorem effect of anticircumvention law on fair use. Without an exemption, fair users are subjected to a digital literacy test combined with a digital poll tax, and this regime suppresses fair use. The experience of artists (vidders) confronting the law illustrates both …

A Model Copyright Exemption To Serve The Visually Impaired, Patrick Hely

Vanderbilt Journal of Transnational Law

Copyright law presents visually impaired persons with serious barriers to access of the written word. A recent international effort seeks to remove these barriers to access, in limited instances, by allowing the creation of accessible formats of copyrighted works. While bodies like the World Blind Union--through several South American states--have presented draft treaties to the World Intellectual Property Organization (WIPO), to date the interested parties have not found a mutually agreeable solution. This Note surveys international intellectual property law as it relates to the problem, draws a comparison to the humanitarian concerns entangled with international patent law, and tracks the …

Cultivating Farmers' Rights: Reconciling Food Security, Indigenous Agriculture, And Trips, Lauren Winter

Vanderbilt Journal of Transnational Law

This Note discusses strategies for cultivating Farmers' Rights internationally. The rise of international treaties awarding intellectual property rights in plant genetic resources to plant breeders brought with it an erosion of agricultural biodiversity as well indigenous farmer lifestyles. Farmers' Rights emerged in recognition of the role of traditional farmers play in conserving, creating, and promoting genetic diversity in the food supply and of the importance of maintaining traditional agriculture practices. This Note argues that Farmers' Rights can be realized internationally through concerted effort. The Note proposes that Farmers' Rights could be realized if national governments create laws and infrastructure that …

The 1909 Copyright Act In International Context, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The passage of the 1909 U.S. Copyright Act was embedded in a significant period of evolution for international copyright law. Just a year before, the Berne Convention had been revised for the second time. This Berlin (1908) Act of the Convention in remembered in particular for the introduction of a broad prohibition against formalities concerning the "exercise and enjoyment" of copyright. 1909 was also just one year before a new copyright bill was brought before the Brit-ish Parliament. This Copyright Act, finally adopted in December 1911 and which entered into force in July 1, 1912, greatly influenced laws in many …

No Confusion Here: Proposing A New Paradigm For The Litigation Of Keyword Advertising Trademark Infringement Cases, Rachel R. Friedman

Vanderbilt Journal of Entertainment & Technology Law

Internet search engines such as Google and Yahoo! earn a majority of their profit from selling advertisements to appear next to search results. Google's coveted advertising space, however, causes nightmares for trademark holders when their trademarks are auctioned by Google to competitors as keywords to trigger the competitors' advertisements when the trademark is used as a search term. Advertisers strategically bid on trademarks of competitors to ensure that their ads appear whenever the trademark is used as a search term, instead of the advertisements of the trademark holder. For example, Nike could bid on the trademark for "Adidas," with the …

Guerrilla Radio: Has The Time Come For A Full Performance Right In Sound Recordings?, Lauren E. Kilgore

Vanderbilt Journal of Entertainment & Technology Law

Musicians and songwriters occupy a unique place in society as purveyors of composition and expression that impart an intangible benefit to society. Understanding the value of "Science and useful Arts," the Founders provided Constitutional protection for individuals spending time, money, and energy pursuing creative endeavors. Music defines generations and pivotal moments in history, and has rightfully taken its place at the forefront of human expression. When music began reaching the masses in the early twentieth century, both record labels and radio, even in its infancy, helped propel artists to the national spotlight. Johnny Cash, Ray Charles, and Pearl Jam all …

An "Absence Of Meaningful Appellate Review": Juries And Patent Obviousness, Theresa Weisenberger

Vanderbilt Journal of Entertainment & Technology Law

The rise in the number of patent infringement trials heard by juries has brought criticisms of the jury's expansive role to the forefront of patent law commentary. Under current Federal Circuit practice, the jury is permitted to deliver a verdict on patent obviousness. Especially in light of the 2007 Supreme Court decision KSR International Co. v. Teleflex, Inc., the role of the jury in obviousness determinations has come under particular scrutiny. This Note examines the effect of the jury's expansive role in obviousness determinations on appellate review of these verdicts. It begins by examining the two conflicting views of the …

Transformative Use And Cognizable Harm, Thomas F. Cotter

Vanderbilt Journal of Entertainment & Technology Law

In recent years, the question of whether the unauthorized use of a copyrighted work is "transformative" has become a dominant consideration in determining whether the use is fair or unfair. As critics have pointed out, however, this emphasis on transformative use is both underinclusive and indeterminate of the range of uses that fall within the scope of the fair use privilege. Worse yet, efforts to define or apply the concept of transformative use, or to distinguish fair transformative uses from transformative uses that infringe the copyright owner's exclusive right to prepare derivative works, often serve only to illuminate the concept's …

Copyright, Derivative Works, And The Economics Of Complements, Glynn S. Lunney, Jr.

Vanderbilt Journal of Entertainment & Technology Law

From an economic perspective, copyright is irrational. In defining the scope of a copyright owner's exclusive rights, it treats situations that have similar economic consequences differently, as infringement in one case and not in the other, and situations that have radically different economic consequences similarly. This essay explores such area in which copyright exhibits economic irrationality: Copyright's treatment of complements. Where a lower price on a substitute reduces demand for the original, a lower price on a complement increases it. So defined, copyright addresses whether a copyright owner will control three different types of complements: (i) complementary products, such as …

A Preliminary First Amendment Analysis Of Legislation Treating News Aggregation As Copyright Infringement, Alfred C. Yen

Vanderbilt Journal of Entertainment & Technology Law

The newspaper industry has recently experienced economic difficulty. Profits have declined because fewer people read printed versions of newspapers, preferring instead to get their news through so-called "news aggregators" who compile newspaper headlines and provide links to stories posted on newspaper websites. This harms newspaper revenue because news aggregators collect advertising revenue that newspapers used to enjoy.

Some have responded to this problem by advocating the use of copyright to give newspapers the ability to control the use of their stories and headlines by news aggregators. This proposal is controversial, for news aggregators often do not commit copyright infringement. Accordingly, …

A Generation Of Racketeers? Eliminating Civil Rico Liability For Copyright Infringement, Julie L. Ross

Vanderbilt Journal of Entertainment & Technology Law

This article addresses questions raised in recent years by the increasingly severe penalties for copyright infringement, focusing on potential civil RICO liability as illustrated by a hypothetical peer-to-peer file-sharing example. Because civil litigation has been, by a wide margin, the favored means for pursuing copyright violators, the criminal copyright infringement statute remains largely untested, and the few cases that address its provisions offer conflicting interpretations. Now that RICO penalties are available in civil copyright infringement cases, courts faced with resolving the ambiguities in the application of the criminal copyright infringement provisions will need to reconcile divergent policies. To effectuate its …

Does Copyright Law Promote Creativity? An Empirical Analysis Of Copyright's Bounty, Raymond S. Ray, Jiayang Sun, Yiying Fan

Vanderbilt Law Review

Modern copyright law is based upon a theory: increase copyright protection and you increase the number of creative works available to society. This theory has been the driving force behind an economic vision that has expanded, beyond all recognition, the original law created by the Statute of Anne. And with this expansion, we are told that the costs associated with copyright are worthwhile because of the bounty it produces. What if this theory could be tested? After all, this is not a question of faith or morality, nor is it a statement on how humans should behave; it is a …