Intellectual Property Law Commons^™

Notes On Economics Of Suppression - 1990, Wendy J. Gordon

Scholarship Chronologically

The Treatise suggests that the two major strains in copyright are the economic or instrumental perspective, and the authors' rights perspective. This dual perspective parallels the configuration in property and tort law as a whole, where quandaries such as the suppression problem are sometimes analyzed in terms of whether the individual holding an entitlement is a "steward" entrusted with the resource solely for sake of the social good that is likely to result from his or her productive use of it, or a "sovereign" to be left unregulated in managing the resource.

Proposed Organization And Detailed Table Of Contents - 1990, Wendy J. Gordon

Scholarship Chronologically

For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from scholarly and case law developments in other areas. There were exceptions of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zcharia Chaffee Jr. and Judge Learned Hand brought a wealth of learning and a broad perspective to copyright.

Draft Of New Versus Old Authors - 1990, Wendy J. Gordon

Scholarship Chronologically

Virtually all the issues canvassed above embody the tension that exists in seeking to honor the interests of two generations of creators. For example, the essay has discussed the need for new adaptive artists to have a copyright in their own productions and the dangers that the "subconscious copying rule" poses to new creators, particularly in an age of ubiquitous media.

Notes Of Reference To The Common Law, Wendy J. Gordon

Scholarship Chronologically

Also, when one looks at the common law, one finds throughout an attempt to protect persons who change position in reliance on other's actions from being harmed by such persons' withdrawal; similarly, the common law gives a great deal of protection from harm even when the parties have had no prior dealings.

Draft Of Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship - 1990, Wendy J. Gordon

Scholarship Chronologically

For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from developments in scholarship and case law in other areas. There were exceptions, of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zechariah Chaffee, Jr. and Judge Learned Hand brought learning and broad perspective to copyright. But by and large copyright looked only to itself for guidance.

Notes On Lear V. Adkins And Kewanee: "Public Domain" And "Dissemination", Wendy J. Gordon

Scholarship Chronologically

What is the S ct s notion of public domain? Does dissemination play the same role I thinK it should? Here s a looK at patent pol icy. Basically, I think the following shows that the Supreme Court envisages that there s a separate policy which says that things once made public should stay public. Now d tie that to reliance & changes of position. The court doesn t think it through very well; they may have power in mind, or vesting, or just precedent. It s unclear. But it s useful for my purposes that the Court opinion suggests …

Berne-Ing The Soviet Copyright Codes: Will The U.S.S.R. Alter Its Copyright Laws To Comply With The Berne Convention?, William Scott Goldman

Penn State International Law Review (1982 - 2011)

What changes need to be made in the Soviet copyright codes in order to bring them into compliance with the provisions of Berne? And is it likely that these changes will be accomplished in the near future? This comment will attempt to answer these questions. While these issues have already been addressed in regard to the United States, nothing similar has yet been attempted for the Soviet Union. In light of the U.S.S.R.'s announcement of its intent to accede to the Berne Convention, this analysis is now more timely than ever.

Justice O'Connor's Opinion In Feist Publications, Inc. V. Rural Telephone Service Co.: An Uncommon Though Characteristic Approach, Marci A. Hamilton

Articles

No abstract provided.

Note On Serendipitous Legal Protections: Preemption Continued - 1989, Wendy J. Gordon

Scholarship Chronologically

The First Circuit in Decosta II recognized something r-ar-ely focused on, but of great importance-- namely, the following question: assuming there are applicable federal ·al policies of non-protection, do those policies for-bid only direct state attempts to restrain copying, or- do they also for-bid any state law which has as one of its effects a restraint on copying?

More On Indirect Protections: Piggyback Damage Claims - 1989, Wendy J. Gordon

Scholarship Chronologically

One issue is whether indirect i/p protection should be allowed to, or encouraged to, piggyback on other forms of protection, 1 ike privacy & contract law. (This is the KEWANEE issue. It's a matter of general pol icy, and of preemption.). Another issue is whether, within federal i/p law, a cause of action based on limited statutory infringement should be handled any differently because other damage damage which wouldn't be actionable alone under the relevant federal statute - is present. (This is raised by the NATION issue. It's a matter of legislative intent & general policy,) Although both issues involve …

The New Frontiers Of Copyright: Enforceable Rights In The Space Age, James O. Moermond Iii

Penn State International Law Review (1982 - 2011)

The traditional concepts of copyright law are becoming inadequate to protect the interests of creators in today's global society. The reasons for such inadequacies stem from the emergence of satellite technology and a growing lack of consensus between copyright authors, publishers, and the general public, as to how the property interests should be compensated and enforced. This article is intended to form a foundation for meaningful discussion involving the reformation of the current basis of international copyright protection.

Manifest Intent And Copyrightability: The Destiny Of Joint Authorship, Therese M. Brady

Fordham Urban Law Journal

The 1976 Copyright Act defines joint ownership as requiring an "intent" by multiple authors to merge their works into a single work. Prior to 1976, two standards of determining intent existed in the case law. One was an objective standard, known as common design, and the other was a subjective standard. In part because the 1976 Act does not mention common design, subjective intent came to dominate joint authorship jurisprudence post-1976. As a result of this dominance, many authors have been deprived of their rights. Brady argues that a new standard should be set out by the courts that once …

The Rejection Of Executory Contracts Under The Intellectual Property Bankruptcy Protection Act Of 1988, John J. Fry

Cleveland State Law Review

In October of 1988, Congress enacted the Intellectual Property Bankruptcy Protection Act. The Act is intended to "promote the development and licensing of intellectual property by providing certainty to licensees in situations where the licensor files bankruptcy and seeks to reject the license as an executory contract by providing the licensee an "assurance of being able to continue to use the licensed intellectual property after rejection, while debtors/licensors will still be able to free themselves of burdensome obligations." The Act adds a new subsection to 11 U.S.C. §365 which allows the licensee of intellectual property under an executory contract to …

A Garland Of Reflections On Three International Copyright Topics, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

The United States is a party to many copyright treaties, including a network of bilateral arrangements with other countries and one regional agreement. I will concentrate on the two major multilateral agreements to which the United States is a party, the Universal Copyright Convention ("UCC") and the Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention").

Book Review Of A Copyright Primer For Educational And Industrial Producers, James S. Heller

Library Staff Publications

No abstract provided.

An Inquiry Into The Merits Of Copyright: The Challenges Of Consistency, Consent And Encouragement Theory, Wendy J. Gordon

Faculty Scholarship

Hostility to copyright has a long and honorable history. In the nineteenth century, for example, Lord Macaulay argued that while copyright might be necessary to ensure a "supply of good books," the monopoly that it imposed was at best a necessary evil.

"For the sake of the good we must submit to the evil; but the evil ought
not to last a day longer than is necessary for the purpose of securing the good."

A number of studies critical of intellectual property followed in our century. The most well known is probably the economically oriented 1970 study by Stephen Breyer …

Protecting The Look And Feel Of Computer Programs, Jeffrey Weitzman

Cardozo Law Review

No abstract provided.

The Copyright Doctrine Of 'Works Made For Hire', I. Trotter Hardy

Faculty Publications

No abstract provided.

Distilling The Witches' Brew Of Fair Use In Copyright Law, Jay Dratler Jr.

University of Miami Law Review

No abstract provided.

Three Strikes And They're Out At The Old Ball Game: Preemption Of Performers' Rights Of Publicity Under The Copyright Act Of 1976, David E. Shipley

Scholarly Works

Presently, broadcasters and cable television companies deal directly with the two baseball leagues and the individual clubs, which in turn purport to sell all of the rights regarding the televising of the games. The players wanted to be a part of those contracts to get a bigger share of the television revenues. In the Baltimore Orioles case both sides sought a judicial resolution of their rights in the telecasts. The baseball players' demand was based on their rights of publicity in their performances. This common law right allegedly precluded the clubs and the leagues from contracting with the broadcasters for …

Copyright Law's Concept Of Employment -- What Congress Really Intended, I. Trotter Hardy

Faculty Publications

No abstract provided.

A Thousand Clones: The Scope Of Copyright Protection In The "Look And Feel" Of Computer Programs—Digital Communications Associates, Inc. V. Softklone Distributing Corp., 659 F. Supp. 449 (N.D. Ga. 1987), Alan S. Middleton

Washington Law Review

In Digital Communications Associates, Inc. v. Softklone Distributing Corp., the United States District Court for the Northern District of Georgia rejected "standardization" as a reason to deny copyright protection to user interface design. The court also rejected the proposition, advanced six months earlier in Broderbund Software, Inc. v. Unison World, Inc., that copyright protection of the underlying computer program extends to the screen displays generated by that program. Once it found the screen displays to be separately copyrightable, the Softklone court evaluated each feature of the display individually, and extended copyright protection to some elements of the user …

A Thousand Clones: The Scope Of Copyright Protection In The "Look And Feel" Of Computer Programs—Digital Communications Associates, Inc. V. Softklone Distributing Corp., 659 F. Supp. 449 (N.D. Ga. 1987), Alan S. Middleton

Washington Law Review

In Digital Communications Associates, Inc. v. Softklone Distributing Corp., the United States District Court for the Northern District of Georgia rejected "standardization" as a reason to deny copyright protection to user interface design. The court also rejected the proposition, advanced six months earlier in Broderbund Software, Inc. v. Unison World, Inc., that copyright protection of the underlying computer program extends to the screen displays generated by that program. Once it found the screen displays to be separately copyrightable, the Softklone court evaluated each feature of the display individually, and extended copyright protection to some elements of the user interface. Although …

Intellectual Property Rights And The Gatt: United States Goals In The Uruguay Round, Mark L. Damschroder

Vanderbilt Journal of Transnational Law

The pursuit of protection of IP rights is a valuable goal both for the United States and the rest of the world community. Such rights promote creativity and the advancement of knowledge, as well as fuel the domestic economy and improve the position of the United States vis-a-vis the other trading nations of the world. With the growing interdependence of the global economy, there is no time like the present to lay the foundation for a system of dispute settlement of such trade matters. Economic interdependence will continue to increase, and the problems of international trade in, and piracy of, …

Who Cares Who Wrote "Shakespeare"?, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

Obviously, a great many people, on both (or all) sides of the "authorship question," and they care a lot. The real question is why. Proponents of various authorship claimants compete in their protestations of admiration for the plays and poems in controversy. But if these works are in fact so universally and inexhaustibly fertile of significance, why should any admirer of them waste precious time, which might better be devoted to the study of the texts themselves, arguing about an ultimately irresoluble historical puzzle? And why is so much of the discussion conducted at such a relatively high pitch of …

Blanket Music Licensing And Local Television: An Historical Accident In Need Of Reform, Frederick C. Boucher

Washington and Lee Law Review

No abstract provided.

The Home Audio Recording Act: An Inappropriate Respose To The Home Taping Question, Teresa E. Sulyok

Fordham Urban Law Journal

This Note examines the controversy over consumers' home audio taping activities and finds the legislation under consideration by Congress an inappropriate remedy. Initially, this Note reviews the proposed legislation introduced in Congress addressing the issue of home audio taping. The Note then surveys the rationale behind the Sony decision, which determined that video recorder manufacturers were not liable as contributory infringers, and advocates that audio recorder manufacturers receive similar treatment. Next, this Note analyzes whether home audio recording may constitute fair use under the federal copyright law. This Note concludes that even if certain forms of home audio recording are …

Computer Software Copyright Infringement: The Second Generation, Jeffrey A. Berkowitz

Touro Law Review

No abstract provided.

Free Speech, Copyright, And Fair Use, L. Ray Patterson

Vanderbilt Law Review

The copyright clause provides that "[the Congress shall have Power... To promote the Progress of Science. ..by securing for limited Times to Authors .. .the exclusive Right to their . . .writings ...."I The first amendment provides that "Congress shall make no law. . .abridging the freedom of speech, or of the press ."..."

Three modern developments portend a conflict between these two clauses of the Constitution: (1) the emergence of the doctrine that free speech encompasses the right to have access to, as well as the right to disseminate, ideas; (2) the elimination of the requirement of publication, which …

Masking Copyright Decisionmaking: The Meaninglessness Of Substantial Similarity, Amy B. Cohen

Faculty Scholarship

Traditionally courts have place great weight on the issue of substantial similarity in adjudicating copyright infringement lawsuits. Once success is proven, a court will usually find infringement if the works are viscerally determined to be substantially similar. This Article criticizes the traditional approach as failing adequately to distinguish copying from misappropriation, failing adequately to distinguish ideas from expression, failing to provide adequate guidelines for determining misappropriation, and as overlapping with fair use determinations. The Article also criticizes variations on the traditional approach imposed by the Third and Ninth Circuit Courts of Appeal as not remedying the traditional approach's fundamental shortcomings. …