Intellectual Property Law Commons^™

The Trademark/Copyright Divide, Laura A. Heymann

Faculty Publications

No abstract provided.

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 …

Amendment To Publication Agreement, University Of Georgia School Of Law

Institutional Repository Supporting Materials

Faculty members are asked to append this addendum to any article publication agreement that does not explicitly allow posting the final published version into the Digital Commons and onto their personal webpages, such as Selected Works.

Independent Ink At The Crossroads Of Antitrust And Intellectual Property Law: The Court's Holding Regarding Market Power In Cases Involving Patents And Implications In Cases Involving Copyrights, Leonard J. Feldman, Rima J. Alaily, Chad D. Farrell

Seattle University Law Review

By eliminating the market power presumption for patent holders, Independent Ink calls into question the presumption's continued validity for tying arrangements involving copyrights. While the Court's holding directly applies only to patents, we present three reasons why, after Independent Ink, the presumption can no longer be viable in antitrust lawsuits challenging a tying arrangement involving a copyrighted product. First, the Court's rationale for eliminating the presumption including citations to extensive academic writings, agency guidelines, and legislative amendments precludes the presumption's continued application in any other context. Second, copyrights are significantly less likely than patents to confer market power because …

Unauthorized Annexing Of An Artist's World: An Argument For Creator-Assignee Standing To Sue For Copyright Infringement, Karen A. Skretkowicz

Seattle University Law Review

This Comment surveys the contemporary status of copyright law regarding a creator-assignee's standing to sue for infringement and the bases for allowing a creator-assignee to bring an infringement action. Part II begins the discussion with a review of the general principles of copyright law, including its constitutional and statutory frameworks, its underlying policies, and the moral rights doctrine. Part III continues with an overview of the general constitutional standing principles and real party in interest prerequisites. It then outlines the statutory and judicial limits on standing to sue under copyright law. Part IV discusses the issue of assignee standing in …

On The Legal Consequences Of Sauces: Should Thomas Keller’S Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco

Faculty Scholarship

No abstract provided.

The Public's Right To Fair Use: Amending Section 107 To Avoid The "Fared Use" Fallacy, Wendy J. Gordon, Daniel Bahls

Faculty Scholarship

Under provocative titles like "Fared Use" and "The End of Friction," commentators argue about whether or not the copyright doctrine of fair use should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. The Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The …

Domain And Forum: Public Space, Public Freedom, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The particular problems of content and viewpoint discrimination rarely surface in copyright, though some people have argued that fair use implicates them. Nonetheless, one important lesson for copyright from public forum doctrine is that First Amendment law can take some - though not many - speech-related options off the table. In this brief comment, I argue that analogies between copyright law and public forum doctrine highlight important shared commitments to free and robust public discourse, but also substantial practical barriers to judicial enforcement of those commitments.

Congressional Authority Over Intellectual Property Policy After Eldred V. Ashcroft: Deference, Empty Limitations, And Risks To The Public Domain, David E. Shipley

Scholarly Works

The United States Supreme Court upheld the Copyright Term Extension Act of 1998 (CTEA) in Eldred v. Ashcroft. The Court ruled that Congress had not exceeded its authority under the Copyright Clause by extending the copyright term twenty years and applying this extension retroactively to existing copyrighted works that otherwise would have entered the public domain at the end of their current, nonextended terms. The majority found a rational basis for CTEA and showed great deference to the authority of Congress to set policy that, in its judgment, effectuates the aims of the Copyright Clause. Although this deference to …

A Universal Copyright Fund: A New Way To Bridge The Copyright Divide, Kung-Chung Liu, Haochen Sun

Research Collection Yong Pung How School Of Law

The ever-increasing digitization of works, along with the deployment of technical measures to protect such works and the expansive use of the Internet, further exacerbate the divide between the IP-rich and IP-poor countries in their ability to benefit from such works. It is suggested by this paper that to borrow from experiences on how the telecommunications world provides universal service to each and every household at affordable prices, and to endeavor to shed some new light on how the copyright divide can be narrowed. It is structured in three parts. The first part will examine the past and future failure …

Bollywood Is Coming! Copyright And Film Industry Issues Regarding International Film Co-Productions Involving India, Timm Neu

San Diego International Law Journal

These developments and mutual correlating interests underscore the rising trend in the number of international co-productions and cinematographic co-operations with India. Still, the practice of movie making in India differs in many ways from industry structures in the U.S. or Germany, which shall be analyzed as potential co-production partners. Contractual relations, industry regulations, involved parties, and the legal rules are so distinct, that a comparative view from a producer's perspective shall bring into light the frameworks and copyright issues of international film co-productions involving India.

Google The Gozerian And Fair Use Slimed: Copyright Again In The Technocrat's Den, Brian Sites

Faculty Scholarship

This article considers the fair use doctrine as it applies to Google's Library Search Project and both predicts and advocates for a finding of fair use. Part I briefly reviews the past by considering the pertinent history of the fair use doctrine. It also explains the details of the current suit over Google's Library Project. Part II moves on to consider the current state of fair use analysis by reviewing 110 fair use cases and conducting simple statistical analyses. It then explains and applies the fair use doctrine to Google's project. Part III considers cases frequently compared to Google's and …

Copyright's Empire: Why The Law Matters , Alina Ng

ExpressO

Two separate and distinct movements have colonized research in the field of intellectual property. Law and economics has deepened our understanding of the justification for granting monopoly rights over intellectual property. In recent years, economic theories have been used to support the growth of the commons – the free environment, where intellectual property plays little role in generating new creative works and innovation. The second movement is law and technology that has sought to increase understanding of intellectual property through the exploration of how technologies either provide freedoms or impose limitations to how creative works and innovation are created and …

Overcoming The Achilles Heel Of Copyright Law, Haochen Sun

ExpressO

With the recent proliferation of international, regional and bilateral treaties associated with copyright protection, the three-step test has been hailed as the panacea for measuring the legality of all limitations on copyright. This article challenges the legitimacy of the three-step test as a one-size-fits-all standard for copyright protection and puts forward a proposal to reshape this test. It further argues that the inquiry into the legitimacy of the three-step test necessitates a careful reexamination of the conventional wisdom of copyright law in general and the nature of copyright limitations in particular. Central to this scrutiny are the inquiries into how …

Access To Knowledge As A Bridge Over The Troubled Waters Of Copyright Fair Use -- From Jefferson To Mandela To Google, Douglas L. Rogers

ExpressO

The copyright fair use doctrine is a key to increasing access to knowledge and decreasing the digital divide between information-rich and information-poor countries. Publishers have sued Google for copyright infringement for scanning the copyrighted books of the publishers into a digital database, so Google users can search the database for certain words to determine what books contain words of interest to the user. The Google litigation, however, is only a small piece of the larger access to knowledge puzzle. The larger issue is access to the books themselves, translated into the native languages of citizens of developing countries. Yet copyright …

Technoconsen(T)Sus, Andrea M. Matwyshyn

ExpressO

Law is contributing to an information security paradox. Consumers are regularly “consenting” to the installation of computer code that makes them more vulnerable to harms such as identity theft. In particular, digital rights management technology accompanying digital music has recently left a wake of compromised user machines. Using the case study of security-invasive digital rights management technology, this article argues that a fundamental tension exists among intellectual property law, computer intrusion law and contract law regarding meaningful consumer consent in digital contexts. This article proposes to ease the noise in consent doctrine through creating an objective “reasonable digital consumer” standard …

The Twilight Of The Opera Pirates: A Prehistory Of The Exclusive Right Of Public Performance For Musical Compositions, Zvi S. Rosen

ExpressO

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America’s first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance …

Defining Fair Use In The Digital Era, Joseph James Raffetto

ExpressO

The increasing prevalence of technology, and the ease with which the public and companies can reproduce, recombine, and reuse copyrighted works, has rendered the once-confusing fair use doctrine a virtual uncertainty. Given limited congressional guidance, courts have relied heavily on the secondary use’s potential effect on the market for the original work. While this reliance is based on the valid concern of maintaining adequate creative incentives, the enormous growth of licensing markets has resulted in an overemphasis on economic concerns. Recent court decisions indicate that fair use now turns not on the protection of creative incentives, but rather the preservation …

Copyright Distributive Injustice, Daniel Benoliel

ExpressO

By design, copyright is a legal field that is not distinctively designed for redistribution. And yet, numerous fairness scholars and other critics of the economics paradigm quite markedly argue that copyright law should be based upon some measure of distribution, not efficiency.

This essay argues that copyright law should not promote distributive justice concerns, subject to narrow exceptions and that other more efficient law such as taxation and welfare laws should do that instead. It does so in accordance to the prevailing welfare economics interpretative approach to copyright jurisprudence, with emphasis on the latest Peer-to-Peer (P2P) file sharing litigation.

It …

Risk Aversion And Rights Accretion In Intellectual Property Law, James Gibson

ExpressO

Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict, intellectual property users often seek licenses even when proceeding without one might be permissible. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine; the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory--where risk aversion again creates licensing markets, which cause …

Licenced To Thrive? Podcasting And Copyright Law In Canada, Keith Sutherland

Canadian Journal of Law and Technology

This article examines podcasting and its specific characteristics to see, first, where it fits within Canada’s copyright law, and second, how the licensing regime for musical works in Canada applies to podcasting. The discussion next turns to whether or not the current licensing regime for podcasting is desirable in light of the purpose of copyright in Canada, and with a view to the various interests at stake: those of artists, in being paid, and those of society, in enabling podcasters to access material in order to produce their work. An examination of the current and proposed licensing regime and its …

Taking Copyright Seriously: Abridging Rights Is More Serious Than Inflating Rights, Alina Ng

ExpressO

The proper balance between private rights and public interests in copyright has always been a heated debate. As communication and information technologies converge and develop to enable authors and users of creative works to create and use works without the physical limitations of the analog world, the debate has become more intense. This paper intends to contribute to the debate by bringing attention to basic ideas about rights and the importance of copyright as an institution to ensure that authors create new literary and artistic works for the benefit of the public. Rights under copyright are rights that define the …

Reverse Engineering Of Computer Programs Under The Dmca: Recognizing A "Fair Access" Defense, Donna L. Lee

Marquette Intellectual Property Law Review

Courts have consistently held that reverse engineering constitutes fair use under the Copyright Act. When Congress enacted the DMCA, it intended to codify the settled law. Nonetheless, the exemption Congress carved out for reverse engineering in the DMCA is too narrowly crafted to accommodate the many different purposes of reverse engineering. This Comment suggests that courts should develop a fair access defense for reverse engineering undertaken for purposes that do not satisfy the requirements of the DMCA exemption but do enable other, fair use-defensible uses of computer programs. The Comment outlines three factors to consider in applying a fair access …

All Rights Reserved? Cultural Monopoly And The Troubles With Copyright , Michael Geist

Marquette Intellectual Property Law Review

With an increasing ease for one to download, trade and share information, there is also an increasing desire by companies, corporations and private interests to protect their works. In a time where everything can be commoditized and ideas can be bought and sold at a price, a question we must answer is - Who owns our creativity? Must all rights be reserved? This lecture explores the growth of the citizen journalist and the blossoming of independent creativity online. He also examines the concerns with copyright: how lobby groups have consistently pushed for ever stronger rules. Finally, Dr. Geist presents the …

Copyright And Incomplete Historiographies: Of Piracy, Propertization, And Thomas Jefferson, Justin Hughes

Articles

Because we learn from history, we also try to teach from history. Persuasive discourse of all kinds is replete with historical examples – some true and applicable to the issue at hand, some one but not the other, and some neither. Beginning in the 1990s, intellectual property scholars began providing descriptive accounts of a tremendous strengthening of copyright laws, expressing the normative view that this trend needs to be arrested, if not reversed. This thoughtful body of scholarly literature is sometimes bolstered with historical claims – often casual comments about the way things were. The claims about history, legal or …

Performing Rights Societies And The Digital Environment, Philippe Gilliéron

ExpressO

No abstract provided.

Protecting Menard’S Quixote: A Return To The Strict Originality Standard In Copyright Law, Daniel R. Connolly

ExpressO

Copyright protection extends to “original” works. The adjective “original” here means a work that originated with its purported author, and is not meant to impute any novelty requirement to copyright law. However, case law and literature offer up several odd examples where two individuals have independently created identical works of art. The theory underlying copyright law requires that, because each work originated independently from separate authors, each work be independently copyrightable. Applying this strict, objective standard of originality to the transformative arts, we begin to see new possibilities for grounding copyrights in parodies and satires. Under current law, parodies escape …

Panel Iii: United States V. Martignon - Case In Controversy, William Patry, David Patton, Robert W. Clarida, Marjorie Heins

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Problem Of Freedom Override By Digital Rights Management Technologies: The Market Mechanisms And Possible Legal Options, Yuko Noguchi

ExpressO

One of the major problems of copyright regulations in the digital and network era is that the Digital Rights Management (DRM) technologies are overriding the freedom incorporated within the copyright regulations in the analog world. The override problem partly comes from the strict implementation of the DRM systems by the market, and partly from the anti-circumvention regulations that almost blindly protect such implementation. This research reviews the scope of anti-circumvention regulations by introducing Japanese regulations, which are rather modest, and by comparing with the U.S. regulations. It also extensively analyzes the market mechanisms that cause rather strict implementation of DRM …

Copyright On Catfish Row: Musical Borrowing, Porgy & Bess And Unfair Use, Olufunmilayo B. Arewa

ExpressO

Treatment of musical borrowing under current copyright standards is far too often inequitable. This is evident in the works of George Gershwin, who for a number of reasons was able to borrow freely from existing traditions, works and artists, copyright the works he produced that reflected such borrowings and then restrict future borrowings and reinterpretations of his works. Looking at the operation and uses of copyright in the specific instance of George Gershwin’s musical practice reflects uses of copyright in the musical arena and demonstrates some ways in which current copyright rules may not adequately contemplate actual practices of music …