Intellectual Property Law Commons^™

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 …

Hume's Penguin, Or, Yochai Benkler And The Nature Of Peer Production, Steven A. Hetcher

Vanderbilt Journal of Entertainment & Technology Law

This Article examines 'peer production," a term coined and a concept explicated by Yochai Benkler. My own interest in peer production stems from its importance as a new form of user-generated content. User-generated content is particularly interesting if Benkler is right in his claim that the positive analysis of peer-produced content may have normative implications with respect to copyright law--in particular, the implication that copyright law may play a deleterious role in the formation and maintenance of this potentially significant new form of user-generated content. We are in need of a theory of collective action for the social world that …

"Transformative" User-Generated Content In Copyright Law: Infringing Derivative Works Or Fair Use?, Mary W.S. Wong

Vanderbilt Journal of Entertainment & Technology Law

In the United States, the line between the type and level of transformation required for a copyrightable derivative work and that required to constitute fair use has not been drawn clearly. With the rise of user-generated content, this question (which arises in two distinct copyright contexts) has become even more important. At the same time, copyright law has generally shied away from defining authorship as a legal concept, preferring instead to develop and rely on the related (but not identical) concept of originality. This has resulted in a low copyrightability threshold that does not adequately account for the fact that …

Applying Old Theories To New Problems: How Adverse Possession Can Help Solve The Orphan Works Crisis, Megan L. Bibb

Vanderbilt Journal of Entertainment & Technology Law

This Note focuses on orphan works--works whose copyright owners cannot be found--and the problems they create for libraries and archives that wish to preserve and facilitate access to them. After describing the legal basis for the orphan works problem, the Note analyzes and critiques proposed legislative and scholarly solutions. After concluding that prior solutions fail to adequately address the needs of libraries and archives, the Note offers a solution based on the policy rationales underlying the traditional property concept of adverse possession, since the justifications that supported the advent of the adverse possession doctrine can also be applied to the …

The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel Gervais

Vanderbilt Journal of Entertainment & Technology Law

Even as a mere conceptual cloud, the term "user-generated content" is useful to discuss the societal shifts in content creation brought about by the participative web and perhaps best epitomized by the remix phenomenon. This Article considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation--the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work …

Patenting Games: Baker V. Selden Revisited, Shubha Ghosh

Vanderbilt Journal of Entertainment & Technology Law

Patents are meant to protect the functional aspects of an invention. But patents, particularly patents on processes or methods, can cover non-functional, or expressive, activity. This Article explores this possibility in the context of patents covering games of various types. Patents on games can cover the actual play or use of a game with consequent implications for user-generated content produced by playing games. The Article documents this possibility in the area of fantasy sports and video games and proposes two solutions. The first solution relies on the Federal Circuit's recent decision in In "re Bilski," which restricts the patenting of …

Mass Culture And The Culture Of The Masses: A Manifesto For User-Generated Rights, Debora Halbert

Vanderbilt Journal of Entertainment & Technology Law

User-generated content is a term used to describe the division between culture produced as a commodity for consumption and the culture that is generated by people acting as creative beings without any market incentive. While under current copyright law all types of creativity are protected, the laws of copyright exist primarily to protect commercial forms of expression, not the non-commercial ones that form the foundation of user-generated content. The disconnect between what current copyright law protects and how most people create generates tensions that must be addressed. This Article presents an argument for broader protection of all creative work, including …

Working Toward Spontaneous Copyright Licensing: A Simple Solution For A Complex Problem, Tanya M. Woods

Vanderbilt Journal of Entertainment & Technology Law

As the web evolves, so too are discussions on how to manage the rights of copyright owners online. Finding a solution that is balanced and that accounts for the international nature of the Internet is essential. While many have attempted to craft such a solution, a model that accommodates the spontaneity of copyright content users and that recognizes the multi-territorial nature of the Internet has yet to materialize. For this reason, this Article formulates a macro-level conceptual approach to building a practical copyright licensing model that could generate spontaneous digital copyright licenses to accommodate the creative impulses of web users …

An Intellectual Property Food Fight: Why Copyright Law Should Embrace Culinary Innovation, J. Austin Broussard

Vanderbilt Journal of Entertainment & Technology Law

In the United States, dining has become an increasingly popular form of leisure and entertainment, generating an estimated $537 billion in 2007. However, dining represents only one aspect of the modern food economy; cooking and dining are regularly featured in newspapers and magazines, while celebrity chefs tout their own brands on television. Eating has been transformed from a mere perfunctory activity into big business. Increasing competition for the attention and money of restaurant patrons has prompted chefs of grande cuisine to differentiate their menus by creating unique dishes. The time and labor that chefs sink into this form of innovation …

The Specter Of Copyism V. Blockheaded Authors: How User-Generated Content Affects Copyright Policy, Tom W. Bell

Vanderbilt Journal of Entertainment & Technology Law

Technological advances, because they have radically lowered the costs of creating and distributing expressive works, have shaken the foundations of copyright policy. Once, those who held copyrights in sound recordings, movies, television shows, magazines, and the like could safely assume that the public would do little more than passively consume. Now, though, the masses have seized (peacefully acquired, really) the means of reproducing copyrighted works, making infringement cheap, easy, and, notwithstanding the law's dictates, widespread. Copyright holders thus understandably fear that their customers have begun to treat expressive works like common property, free for all to use. That, the specter …

Illegal P2p File Sharing On College Campuses--What's The Solution?, Antionette D. Bishop

Vanderbilt Journal of Entertainment & Technology Law

Since the introduction of Napster in 1999, illegal peer-to-peer(P2P) file sharing has been a continuously growing problem for the music industry. According to the music industry, Internet users are allowed to copy and distribute millions of songs and other copyright-protected material illegally by using internet networks and P2P file-sharing software. To stop the illegal P2P file sharing, the music industry has taken action against the individuals who participate in illegal file sharing, as well as the parties that promote and facilitate the illegal activity, by filing numerous lawsuits. The music industry has successfully sought to hold facilitating parties, such as …

Wringing Songwriters Dry: Negative Consequences Of Compulsory Licensing For Ringtones, Daniel H. Mark

Vanderbilt Journal of Entertainment & Technology Law

On October 16, 2006, the United States Copyright Office concluded in a Memorandum Opinion (the Ringtone Opinion) that, subject to certain caveats, the Copyright Act's § 115 statutory license applies to ringtones. The Copyright Office concluded that ringtones (including monophonic and polyphonic ringtones, as well as mastertones) are phonorecords, and deliveries of ringtones by wire or wireless transmission constitute digital phonorecord deliveries subject to compulsory licensing under § 115.2

In the Ringtone Opinion, the Copyright Office provided a testto determine whether a particular ringtone will qualify for thestatutory compulsory license under § 115. The opinion noted that...

"whether a particular …

A Healthy Solution For Patients And Patents: How India's Legal Victory Against A Pharmaceutical Giant Reconciles Human Rights With Intellectual Property Rights, Sara B. Myers

Vanderbilt Journal of Entertainment & Technology Law

The Swiss drug company Novartis challenged India's status as the "Pharmacy of the Developing World" when it initiated a lawsuit against the Indian government on February 15, 2007. In 2005, India updated its Patents Act to comply with the World Trade Organization's (WTO) intellectual property requirements. Before 2005, India only granted patents to processes, not products, which facilitated the development of the country's booming generic drug industry. On January 25, 2006, India's Office of the Controller General of Patents, Designs and Trademarks denied Novartis's patent application for its cancer-fighting drug Glivec on the grounds that it was not substantially different …

Yours, Mine, And Ours: The Joint Authorship Conundrum For Sound Recordings, Abbott M. Jones

Vanderbilt Journal of Entertainment & Technology Law

In 2013, authors of sound recordings will have their first opportunity to exercise their right to terminate assignments made to record companies. Congress has yet to settle just who may claim authorship in, and thus the right to terminate assignments of, sound recordings. Record companies have responded to this uncertainty by including language in standard recording contracts purporting to declare sound recordings made under the contracts works made for hire, such that authorship would vest initially in the record companies themselves. If sound recordings fit within the scope of a work made for hire, these recording contracts would seal the …

Sparing Internet Radio From The Real Threat Of The Hypothetical Marketplace, Mark D. Robertson

Vanderbilt Journal of Entertainment & Technology Law

In early 2007, the newly minted Copyright Royalty Board(CRB) handed down its first ruling, which set royalty rates for the digital performance of sound recordings. The CRB's ruling ignited a firestorm of concern among Internet radio broadcasters (webcasters) and their listeners. For some webcasters, the change to royalty rates constituted a 300-1200% increase over what was due under the previous scheme. This massive increase in royalties is attributable to the willing buyer/willing seller standard that the CRB is statutorily required to employ. This standard directs the CRB to construct one hypothetical marketplace and establish rates to which most buyers and …

Pornography, Coercion, And Copyright Law 2.0, Ann Bartow

Vanderbilt Journal of Entertainment & Technology Law

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their …

User-Generated Content And The Future Of Copyright: Part One--Investiture Of Ownership, Steven Hetcher

Vanderbilt Journal of Entertainment & Technology Law

While user-generated content (UGC) has been around for quite some time, the digital age has led to an explosion of new forms of UGC. Current UGC mega-sites, such as YouTube, Facebook, and MySpace, have given UGC a new level of significance, due to their ability to bring together large numbers of users to interact in new ways. The "user" in UGC generally refers to amateurs, but also includes professionals and amateurs aspiring to become professionals. "Generated" is synonymous with created, reflecting the inclusion of some minimal amount of creativity in the user's work. Finally, "content" refers to digital content, or …

Atlantic Recording Corporation V. Xm Satellite Radio: A Brief Analysis Of The Case And Its Implications For U.S. Copyright Law, Lyle Preslar

Vanderbilt Journal of Entertainment & Technology Law

In May 2006, the Recording Industry Association of America ("RIAA"), representing the four major record labels, brought suit against XM Satellite Radio, Inc. ('XM') in the U.S. District Court for the Southern District of New York.' The plaintiffs allege that XM's introduction of its new service utilizing certain satellite radio receivers, including Pioneer's "inno" (the "inno"), dubbed "XM+MP3,"constitutes "massive wholesale infringement" of RIAA members' copyrighted sound recordings. The plaintiffs claim that XM's new service allows XM subscribers to record broadcasted songs, store them in playlist form, and replay them at the user's will, "effectively provid[ing] a digital download service." This …

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Vanderbilt Journal of Entertainment & Technology Law

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

Dealing With Casual Piracy: Limiting Distribution Of Copyrighted Content With Digital Rights Management, Bimal J. Rajkomar

Vanderbilt Journal of Entertainment & Technology Law

This article argues that it is possible to implement DRM schemes without eroding the public's trust by offering consumers a choice between technologically-restricted and unrestricted content. Part I discusses how DRM have harmed voluntary compliance with the law. Part II examines the biggest copyright governance issue confronting peer-to-peer networks: casual piracy. Part III explain show a bifurcated licensing scheme can allow content providers to benefit from DRM without incurring its usual costs. Note that some music distributors and labels have begun to adopt this licensing structure.

Defending Artistry By Deleting "Dead Capital:" Sony, Grokster, And The Supreme Court's Lost Opportunity To Eradicate The "Substantial Non-Infringing Use" Doctrine, Joshua E. Carpenter

Vanderbilt Journal of Entertainment & Technology Law

The administration of copyright law manages the trade-off between the benefits derived from encouraging the creation of works and artistic protection and the cost of restricting access. Copyright law cannot work without a strong legal system that strictly reads the rights granted to those seeking the law's protection and against those seeking to find creative ways to avert the law's protections. Ironically, certain technology providers want protection against others' infringement on their technological creations, but they accept that their businesses base themselves on eroding the value of another's hard work and innovation. Sony allows technology companies to hide behind the …

International Distributions: Divergence Of Co-Ownership Laws, Goldie Gabriel

Vanderbilt Journal of Entertainment & Technology Law

United States copyrighted works are exploited internationally--or at least artists hope for them to be exploited internationally. The Berne Convention ("Berne"),' to which the U.S. became a member on March 1, 1989, is the primary regulator of international copyright issues. Berne's purpose is to "protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works." To achieve this purpose, Berne mandates that its parties provide equal treatment and minimum levels of protection to members of the Berne Union. Berne does not, however, require new laws to provide those protections. Instead, Berne …

A Bright Line At Any Cost: The Sixth Circuit Unjustifiably Weakens The Protection For Musical Composition Copyrights In Bridgeport Music V.Dimension Films, Michael J. Galvin

Vanderbilt Journal of Entertainment & Technology Law

On June 3, 2005, the Sixth Circuit issued its final amended opinion in Bridgeport Music v. Dimension Films,' in which it held that any amount of unauthorized digital sampling from a sound recording is per se copyright infringement. The court justified this ruling on what it termed a "literal reading" of Section 114 of the Copyright Act, which covers the rights a copyright holder has in a sound recording. While such a bright-line rule may have some superficial appeal, the court's efforts at harmonizing current music industry practices with copyright laws written long before such practices were commonplace has resulted …

Patently Wrong: The U.S. Supreme Court Punts In The Case Of Labcorp V. Metabolite, John G. New

Vanderbilt Journal of Entertainment & Technology Law

In June 2006, after having granted certiorari and hearing oral arguments, the United States Supreme Court dismissed the case of Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. as having been improvidently granted a writ of certiorari. Dissenting from this extraordinary step was Justice Breyer, joined by Justices Stevens and Souter. At issue in the case was a patent, the owners of which claimed that a physician's use of any test to infer vitamin deficiency by raised blood serum levels of the chemical homocysteine infringed the patent. This Article argues that the Supreme Court was itself improvident in dismissing …

A Reason For Musicians To Fret: Copyright Infringement In Online Guitar Tablature, Laura E. Gary

Vanderbilt Journal of Entertainment & Technology Law

Part I of this note will specifically address guitar tablature and how it differs from more traditional methods of copying musical works. Part I will also discuss derivative works and fair use in detail, setting out the statutory provisions and the relevant case law establishing and analyzing both these claims. Part II addresses the lack of legal precedent for copyright infringement in guitar tabs and devises a possible solution to the question of whether or not guitar tabs infringe copyrighted musical works. Specifically, this note concludes that the appropriate answer to that question is that guitar tabs are infringing derivative …

From Safe Harbor To Choppy Waters: Youtube, The Digital Millennium Copyright Act,And A Much Needed Change Of Course, Lauren B. Patten

Vanderbilt Journal of Entertainment & Technology Law

YouTube.com, named Time magazine's "Invention of the Year" for 2006 and widely recognized as the most-visited video site on the Internet, has changed the face of online entertainment. With the site's acquisition by Google in October 2006, the possibilities for YouTube's growth became truly endless. However, there is a darker side to the story of the Internet sensation, one that is grounded in its potential liability for copyright infringement. The issue is that many of the most-viewed and most-popular videos on the site are copyrighted. The copyright owners of those popular clips want their works back and are suing YouTube …

Equal Protection In The World Of Art And Obscenity: The Art Photographer's Latent Struggle With Obscenity Standards In Contemporary America, Elaine Wang

Vanderbilt Journal of Entertainment & Technology Law

Part I of this article describes the initial hurdles that all visual art forms, including photography, face with respect to First Amendment protection given the power of visual imagery and the three-pronged test for obscenity set forth in Miller v. California. Of particular relevance is the "serious artistic value" prong of the Miller test and the problems inherent in determining who is to judge as well as how one might judge whether a work, particularly a photograph that may be construed to have a non-artistic function, possesses "serious artistic value."

Part II addresses the overall approach to photography in three …