Intellectual Property Law Commons^™

Curbing Copyblight, John Tehranian

Vanderbilt Journal of Entertainment & Technology Law

This Article identifies and analyzes the growing problem of "copyblight" the use of overreaching claims by putative copyright holders to ownership of public domain works, and, more broadly, to exclusive rights which they do not hold in copyrighted works. Despite the fact that copyblight circumscribes political and social discourse, stifles creativity, and constricts the dissemination of information, present law provides few, if any, disincentives against the practice. Building on the groundbreaking work of Paul Heald and Jason Mazzone, this Article advances three proposals to temper the problems of overreach in order to restore a needed balance in our copyright system: …

Patents 101: Patentable Subject Matter And Separation Of Powers, Max S. Oppenheimer

Vanderbilt Journal of Entertainment & Technology Law

The definition of statutory subject matter lies at the heart of the patent system. It is the reflection of Congress's policy decision as to what types of inventions one may patent. While the congressional definition of statutory subject matter (in what is now 35 U.S.C. § 101) has remained fundamentally constant since 1790, the Supreme Court has reinterpreted and redefined statutory subject matter several times, leaving lower courts with the frustrating task of trying to develop a coherent jurisprudence against a changing landscape. This inconstancy has introduced uncertainty for inventors who are trying to make the fundamental decision of whether …

Intercepting Licensing Rights: Why College Athletes Need A Federal Right Of Publicity, Talor Bearman

Vanderbilt Journal of Entertainment & Technology Law

The right of publicity is the right of an individual to control the commercial use of her name, image, likeness, or other identifiable aspects of her persona. In the United States, the right of publicity is a state-law right, not federal, and recognition of the right varies significantly from state to state. The lack of uniformity among states poses significant problems for individuals who are recognizable throughout the United States. Specifically, student athletes, who would lose the ability to play college athletics if they were reimbursed for the use of their images, are among the individuals most at risk of …

Cyberspace, Exceptionalism, And Innocent Copyright Infringement, Jacqueline D. Lipton

Vanderbilt Journal of Entertainment & Technology Law

Direct copyright infringement attracts strict liability. However, as a theoretical matter, it is not necessarily clear why. Legislatures and courts have typically imposed strict liability where: (a) a defendant has notice of a plaintiff's rights, particularly where those rights involve a property interest; (b) a mens rea requirement on the part of the defendant would create an untenable burden on the plaintiff; (c) it is easier for the defendant to avoid harming the plaintiff than it is for the plaintiff to avoid the harm; or, (d) it is more administratively or economically efficient for the defendant to bear the risk …

Copyright In Memoriam, Julie C. Young

Vanderbilt Journal of Entertainment & Technology Law

Can a government infringe upon a work dedicated to the memory of its people? The February 2010 Federal Circuit decision "Gaylord v. United States" addresses that question, but any satisfaction from the decision presupposes that the government should be held liable for such an infringement. Consistent with the 1976 Copyright Act, the Gaylord decision preserves the author's rights, paying no regard to the identity of the audience or the infringer. From a policy perspective, however, the result is dubious. Arguably, if a work is a public memorial, and paid for with public funds, it should immediately enter the public domain. …

Patents As Escalators, Amelia S. Rinehart

Vanderbilt Journal of Entertainment & Technology Law

High technology companies commit time, effort, and resources to innovation. Over the course of a research and development project, an innovative company may face several sequential decisions regarding whether to continue to invest in the project and whether to commercialize the discoveries that have been made. Companies often seek patents early in the research and development process to receive the right to exclude others from practicing the invention. Given a current trend toward earlier and earlier patent filing, several scholars suggest that this strategy could leave many inventions underdeveloped; companies may treat patents like real options, deciding later where to …

Drawing A Line In The Sand: Copyright Law And New Museums, Megan M. Carpenter

Vanderbilt Journal of Entertainment & Technology Law

Over the last twenty years, audience attendance at museums, galleries, and performing arts institutions in the United States has decreased dramatically. Major museums and galleries are considering ways to add engaging and meaningful value to the user experience with technology, from incorporating user-generated content to creating multimedia installations billed as "collaborative" works.

In 2010, the Dallas Museum of Art's Coastlines: Images of Land and Sea exhibition featured landscapes from 1850 to the present, as well as a sound installation composed by students and faculty at a local university, which played on speakers throughout the show and responded directly to the …

Is Online Copyright Enforcement Scalable?, Annemarie Bridy

Vanderbilt Journal of Entertainment & Technology Law

This Article examines P2P file sharing and the copyright enforcement problem it has created through the lens of scalability. Part I traces the evolution of peer-to-peer (P2P) networks from Napster to BitTorrent, with a focus on the relative scalability of successive architectures. Part II takes up the difficult question of the scale of P2P infringement and its harms, examining the strategic number-crunching that underlies industry data on piracy, the government's credulous acceptance of that data, and the risk of letting industry hyperbole drive copyright policy and law enforcement priorities. Part III evaluates the efficacy of the Digital Millennium Copyright Act …

Cut In Tiny Pieces: Ensuring That Fragmented Ownership Does Not Chill Creativity, Henry H. Perritt Jr.

Vanderbilt Journal of Entertainment & Technology Law

The market for video entertainment is growing and becoming more diverse as technology reduces barriers to entry for small, independent moviemakers and distributors and increases consumers' ability to access the media of their choice. The growing complexity of the market, however, increases transaction costs for new entrants who must obtain licenses to copyrighted music, characters, storylines, or scenes that they incorporate into their movies. The entertainment bonanza offered by new technologies may not be realized in practice because of market failure. The purposes of the Copyright and Patents Clause are frustrated because creators of new works wishing to use new …

Digital Copyright And Confuzzling Rhetoric, Peter K. Yu

Vanderbilt Journal of Entertainment & Technology Law

For more than a decade, policymakers, industry representatives, consumer advocates, civil libertarians, academic commentators, and user communities have advanced a wide array of arguments for or against online file sharing and restrictive copyright standards. This Article begins by introducing two short stories to illustrate the rhetorical and analytical challenges in the digital copyright debate. It then examines eight unpersuasive arguments advanced by both sides of the debate--four from the industry and four from its opponents. The Article concludes by outlining six different strategies to help the industry develop more convincing proposals for digital copyright reform.

Edible Plagiarism: Reconsidering Recipe Copyright In The Digital Age, Meredith G. Lawrence

Vanderbilt Journal of Entertainment & Technology Law

Sharing recipes through food blogs is an increasingly popular activity. Bloggers publish their own recipes, claiming copyright protection, but they also publish others' recipes. Food publishers who distribute recipes online may be harmed when bloggers include the entire text of the food publisher's recipe on a blog without the publisher's knowledge or permission. The blogger's inclusion of an entire recipe often reduces site traffic to the food publisher's website, thereby damaging advertising revenues. Copyright law, as courts interpret it today, does not provide these publishers with recourse against bloggers who publish their recipes without permission.

This Note analyzes the various …

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 …

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 …

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 …

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 …