Intellectual Property Law Commons^™

Reflections On The Law And Economics Of Copyright Scope And Its Implications For Fair Use, Matthew J. Sag

Public Law and Legal Theory Papers

Uncertainty as to the optimum extent of protection has generally limited the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. The article explores the relationship between copyright scope and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law. This analysis of copyright scope establishes that (1) the efficiency of private ordering is the key determinant of the ideal level of copyright scope; (2) the complexity of the welfare-scope relationship is such that we are unlikely to be able to ascertain a generalizable …

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Once And Future Copyright, James Gibson

Law Faculty Publications

Copyright is like a well-meaning but ultimately bothersome friend, eager to help but nearly impossible to get rid of. It attaches indiscriminately to the simplest acts of expression, without regard for whether the author needs or wants its protection. This automatic propertization made sense in the print era, when mass distribution of information was an expensive process rarely undertaken by those with no plans to profit from their creativity. It makes little sense today. The following article shows that copyright's overly solicitous nature is the source of several seemingly unrelated and intractable problems - e.g., closed code, copyright as censorship, …

Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham

Michigan Law Review

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by nongovernmental organizations. Departures from such standards expose citizens to criminal, civil, and administrative sanctions, yet private actors generate, control, and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach ex ante and no framework exists to facilitate analysis. This Article contributes an analytical framework and proposes institutional mechanisms to implement it. The lack of a comprehensive framework for evaluating copyright to standards embodied in law is surprising because the range of standards potentially affected …

Size Matters (Or Should) In Copyright Law, Justin Hughes

Articles

American copyright law has a widely recognized prohibition against the copyrighting of titles, short phrases, and single words. Despite this bar, effective advocacy has often pushed courts into recognizing independent copyright protection for smaller and smaller pieces of expression, particularly in recent cases involving valuation and taxonomy systems. Copyright case law is rife with dicta suggesting protection of short phrases and single words.

This instability in copyright law is rooted in the fiction that we deny copyright protection to short phrases and single words because they lack originality. In fact, there are many short phrases that cross copyright's low threshold …

Inherency, Dan L. Burk, Mark A. Lemley

William & Mary Law Review

No abstract provided.

Intellectual Property, Trade & Development: The State Of Play, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article considers, first, available economic, social, and cultural analyses of the impact of intellectual property protection in developing countries. Economics provides a useful set of analytical tools and are directly relevant, in particular since the successfully arranged marriage of IP and trade rules after which it became inevitable that IP rules would be measured using an economic yardstick. The Paper also considers the claim that making proper intellectual property policy is impossible or inherently unreliable because theoretical models are inadequate or valid empirical data unavailable. Against this backdrop, the Article then examines the emergence of the World Trade Organization …

Google's (Fair) Use Of Copyrighted Work, James Gibson

Law Faculty Publications

Letters to the Editor on Google's (Fair) Use of Copyrighted Work

A New Weapon Against Piracy: Patent Protection As An Alternative Strategy For Enforcement Of Digital Rights, Dennis S. Fernandez, Matthew Chivvis, Mengfei Huang

ExpressO

This article illustrates how patents and copyrights complement each other to provide a better defense for creative works. Copyrights protect expression, and patents protect underlying functions. Currently, the one-time strengths of copyrights are being eroded as courts allow new technologies to flourish which enable digital reproduction and piracy. This has encouraged companies and industries to move increasingly to patent protection and any company that fails to pursue this trend may be left behind. In sum, patents are a worthwhile strategy because they assist copyright owners in controlling the technology that enables infringement while copyrights alone would leave a company vulnerable …

Unfinished Business: Are Today’S P2p Networks Liable For Copyright Infringement?, Christine Pope

Duke Law & Technology Review

In June 2005, the U.S. Supreme Court issued the decision in Metro-Goldwyn-Mayer Studios v. Grokster Ltd., a case that asked whether peer-to-peer networks may be held liable for facilitating the illegal distribution of music over the internet. The music industry petitioned the Supreme Court to settle the disagreement between the circuit courts over the standard of liability for aiding in copyright infringement. The case was based on a clash between the protection of technological innovation and the protection of artistic works. This iBrief examines the circuit split and the Grokster opinion and discusses the questions of liability left unresolved by …

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Age has spawned major legal battles over the fundamental principles of intellectual property law and antitrust law. These diverse struggles can best be analyzed using the basic norm of "value added" from neo-classical normative economics. This analysis suggests that current intellectual property doctirnes provide excessive protection and current antitrust doctrines remain awkward in dealing with the cross-market leveraging of monopoly power in the presence of "natural monopolies" created by network effects.

Distinctively Delineated Fictional Characters Who Constitute The Story Being Told: Who Are They And Do They Deserve Separate Copyright Protection?, Jasmina D. Zecevic

ExpressO

Literary characters are protected within the copyright of the original work in which they appear, but the law is less clear when a character is separated from the original work and leads an independent life. The two main tests articulated by courts to deal with the phenomenon of an independent character, the “distinctly delineated” and “story being told” tests have not been particularly helpful. The tests are mainly used after a decision has already been reached to give the decision additional validity by uttering the magic words “distinctly delineated” or “story being told”.

A better alternative is to rely on …

The Naked Newscaster, Girls Gone Wild, And Paris Hilton: True Tales Of The Right Of Privacy And The First Amendment, Joseph Siprut

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Who Owns The Cow When We Give Away The Milk For Free? Fair Use And The Protection Of Web-Posted Materials, Annie R. Lin

Buffalo Intellectual Property Law Journal

No abstract provided.

One For All: The Problem Of Uniformity Cost In Intellectual Property Law, Michael W. Carroll

Working Paper Series

Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. Historically, this uniformity may have been justified in light of the relative homogeneity of market conditions applicable to protected subject matter, such as books or mechanical inventions. Technological progress since the founding has led to considerable growth in the range of inventions and expressive works to which patent and copyright law apply, respectively. In the modern context, it is clear that innovators’ needs for intellectual property protection vary substantially across industries and among types of innovation. Applying …

Shades Of Grey: Can The Copyright Fair Use Defense Adapt To New Re-Contextualized Forms Of Music And Art?, Nicholas B. Lewis

American University Law Review

No abstract provided.

United States V. Martignon: The First Case To Rule That The Federal Anti-Bootlegging Statute Is Unconstitutional Copyright Legislation, Michael C. Shue

University of Miami Law Review

No abstract provided.

Unforced Rhythms Of Grace: Freeing Houses Of Worship From The Specter Of Copyright Infringement Liability, Brian D. Wassom

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Scope Of The 'Safe Harbor' Provision Of The Hatch-Waxman Act In View Of Merck V. Integra Lifesciences, Brian D. Coggio

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Changing Meaning Of Patent Claim Terms, Mark A. Lemley

Michigan Law Review

The claims of a patent are central to virtually every aspect of patent law. The claims define the scope of the invention, and their meaning therefore determines both whether a defendant's product infringes a patent and whether the patent is valid. One of the most significant aspects of patent litigation is "claim construction," the process of defining the words of the claim in other, theoretically clearer words. Courts construe the claims of the patent by starting with the plain meaning of their terms as they would be understood by a person having ordinary skill in the art, or PHOSITA. Claim …

Crisis Of Indefinite Consequence: How The Derivative Works Exception And The Lanham Act Undercut The Renumerative Value Of Termination Of Transfers, Ashok Chandra

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

How We Lost Our Moral Rights And The Door Closed On Non-Economic Values In Copyright, Susan P. Liemer

Publications

When Congress passed the Visual Artists Rights Act ("VARA") in 1990, it introduced into our federal law concepts that had been shut out of Anglo-American intellectual property law for over 200 years. VARA gives visual artists the right of attribution, i.e., the right to have their work properly attributed to them, and the right of integrity, i.e., the right to not have their work altered or destroyed without their permission. While others have studied the history of Anglo-American copyright from the advent of the printing press, they make few references to the type of rights granted by VARA. To fill …

A Rose Is A Rose Is...: The Thorny Case Of Morris Communications Corp. V. Professional Golf Association Tour, Inc., Shubha Ghosh

Buffalo Intellectual Property Law Journal

No abstract provided.

35 U.S.C. § 287(C): Language Slightly Beyond Intent, Fariba Sirjani, Dariush Keyhani

Buffalo Intellectual Property Law Journal

No abstract provided.

A Positive Externalities Approach To Copyright Law: Theory And Application, Jeffrey L. Harrison

UF Law Faculty Publications

The basic goal of copyright law is, at a general level, fairly well understood, yet the law itself seems untethered to any consistent analytical approach designed to achieve that goal. This Article has two goals. The first is to explain in some detail what copyright law might look like if it reflected economic reasoning. The second is to put to the test the question of whether copyright law is as far out of sync with economic guidelines as White-Smith Music and Eldred suggest.

In order to understand the economic approach and the inconsistency of copyright law, as well as the …

Stopping The "Savage Indian" Myth: Dealing With The Doctrine Of Laches In Lanham Act Claims Of Disparagement, Steven R. Latterell

Indiana Law Journal

No abstract provided.

A Mathematical Approach To Benefit-Detriment Analysis As A Solution To Compulsory Licensing Of Pharmaceuticals Under The Trips Agreement, Vishal Gupta

Cardozo Journal of International and Comparative Law

The note proposes a mathematical approach to benefit-detriment analysis as a solution to the challenges posed by compulsory licensing of pharmaceuticals under the TRIPS Agreement. The core argument is that a socio-economic framework, comparing the monetary detriment to pharmaceutical companies (D) with the aggregate societal benefit (H x C), where H is the average health benefit per person and C is the number of affected citizens, can provide a balanced and objective method to determine when compulsory licenses should be granted. This approach aims to address the "Paragraph 6 problem" and improve access to essential medicines in developing countries while …

Intellectual Property Rights In Digital Media: A Comparative Analysis Of Legal Protection, Technological Measures, And New Business Models Under Eu And U.S. Law, Nicola Lucchi

Buffalo Law Review

No abstract provided.

Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman

Cardozo Law Review

No abstract provided.

Something Old, Something New, Something Borrowed, Something Blue: A New Tradition In Nontraditional Trademark Registrations, Melissa E. Roth

Cardozo Law Review

No abstract provided.