Intellectual Property Law Commons^™

The Struggle Over Webcasting--Where Is The Stream Carrying Us?, Susan A. Russell

Oklahoma Journal of Law and Technology

No abstract provided.

Dastar V. Twentieth Century Fox--One Can't Get Back By Trademark What One Gave Up Under Copyright, Sue Mota

Oklahoma Journal of Law and Technology

No abstract provided.

Piracy On Peer-To-Peer File Sharing Networks: Why A Streamlined Online Dispute Resolution System Should Not Be Forgotten In The Shadow Of A Federal Small Claims Tribunal, Naomi Gemmell

Pepperdine Dispute Resolution Law Journal

This Article proposes application of an ADR system for resolving online copyright disputes related to P2P file sharing. Section II provides an overview of P2P file sharing networks and associated copyright infringement. Section III explores current approaches that fall short in resolving P2P copyright disputes, namely the Digital Millennium Copyright Act, litigation, and private agreements. Section IV examines the two primary proposed solutions to online copyright disputes: alternative dispute resolution and federal small claims. Section V recommends that a streamlined online dispute resolution system is necessary (even if a federal small claims tribunal is adopted), and concludes.

The Quandary Of Being Interactive: The Impact Of Arista Records V. Launch Media On The Viability Of Webcasting Services, Todd E. Saucedo

Oklahoma Journal of Law and Technology

No abstract provided.

Trademark Boundaries And 3d Printing, Lucas S. Osborn

Akron Law Review

3D printing technology promises to disrupt trademark law at the same time that trademark law and policy sustain repeated criticism. The controversial growth of trademark law over the last century has yielded amorphous sponsorship and affiliation confusion issues and empirically fragile post-sale and initial-interest confusion theories, among others. Into this melee marches 3D printing technology, which dissociates the process of design from that of manufacturing and democratizes manufacturing. Rather than being embodied only in physical objects, design is embodied in digital CAD files that users can post and sell on the internet. The digitization of physical objects raises fundamental questions …

Redefining The Intended Copyright Infringer, Yvette Joy Liebesman

Akron Law Review

The contemporary copyright infringer is pretty much anyone who can get caught. Yet, who could be caught back when the Copyright Act of 1976 was enacted is just a subset of those who can be caught today—we had very different concepts about who was the intended target of an infringement action than who fits into that mold today. The advent and growth of cyberspace communication now makes it both easier to infringe and for IP owners, with very little effort, to capture infringers. The ability of individuals to both easily infringe and easily be found infringing has altered the IP …

Copyright Easements, Jason Mazzone

Akron Law Review

When authors assign the copyright in their work to publishers, some productive uses of the work are impeded. The author loses opportunities to use or to authorize others to use the work unless the publisher consents; the publisher does not permit all uses of the work that the author would like or that would benefit a consuming audience. Copyright easements can solve the problem. Under a system of copyright easements, an easement holder would have designated rights in a creative work that would permit uses of the work that would ordinarily require permission of the copyright owner. If the author …

Post-Myriad Genetics Copyright Of Synthetic Biology And Living Media, Michael D. Murray

Oklahoma Journal of Law and Technology

No abstract provided.

Bridgemen Art Library, Ltd. V. Corel Corporation Revisited: Authors Guild V. Hathitrust And The New Frontier Of Fair Use, Caitlin A. Buxton

Oklahoma Journal of Law and Technology

No abstract provided.

A Picture's Worth: The Future Of Copyright Protection Of User-Generated Images On Social Media, Elizabeth Tao

Indiana Journal of Global Legal Studies

In the current digital age, the internet is teeming with personal websites and social media posts. As more people around the world are becoming and staying connected to the internet, more stories and photos are sharing over social networking sites each second. Social media presents a ubiquitous platform to share one's life with others, but this accessibility comes at a price. This Note examines the history and present state of copyright law, within the framework of photography, to highlight the gaps within these laws as applied to personal works of art, like personal photographs, posted to social media sites. Social …

The Right-Based View Of The Cathedral: Liability Rules And Corrective Justice, Omri Rachum-Twaig, Ohad Somech

Pepperdine Law Review

In their celebrated paper, Calabresi and Melamed offered a framework, often referred to as the ‘‘Cathedral’’ analysis, which explains when and why entitlements should be protected using two main sets of rules—property rules and liability rules. This framework is now widely used to explain some private law doctrines. However, cases that are easily explained as applications of liability rules are usually difficult to explain under the private law theory of correlative corrective justice. This is because the basic idea underlying corrective justice conflicts with the notion of rules that allow the nonconsensual property appropriation subject to compensation. In this Article, …

Consent Decrees In The Streaming Era: Digital Withdrawal, Fractional Licensing, And § 114(I), Steven J. Gagliano

The Journal of Business, Entrepreneurship & the Law

Clear disagreement exists about how best to reconcile the copyright protections afforded to songwriters with the antitrust considerations protecting consumers. Songwriter public performance royalty collections account for over $2 billion in annual U.S. revenue, roughly 90% of which is collected by the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI). ASCAP and BMI are performance rights organizations (PROs) regulated by seventy-five-year-old consent decrees. After the Second Circuit determined that these consent decrees prohibit music publishers from selectively withdrawing their new media rights from ASCAP and BMI to directly negotiating with new media services, the PROs …

When Copyright Is Not Enough: Deconstructing Why, As The Modern Music Industry Takes, Musicians Continue To Make, Glenton Davis

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon

Faculty Scholarship

My own view is that Goold overstates the explanatory role of tort law. But even were that not the case, the courts need to reach some kind of “settled” understanding on these various interests before a cause of action is created or definitively rejected, and that no such consensus on the three matters mentioned yet exists, whether they are viewed as forms of tort or otherwise. Goold’s work may nevertheless be an important step toward reaching closure on these and other open questions in copyright law.

"The Engine Of Free Expression": The Political Economy Of Copyright In The Colonial British Atlantic And Early National United States, Nora Slonimsky

Dissertations, Theses, and Capstone Projects

In 1985, the Supreme Court of the United States concluded that copyright was included in the Constitution in order to serve as the “engine of free expression.” By providing economic incentive to drive artistic and scientific innovation, the nation received essential information and other tools of learning necessary to make sound political decisions. However, transnational copyright disputes, then and now, frequently resulted in complex and often contradictory understandings of free expression. The formation of copyright in America was thus a far more complex story, and it is that story that forms the basis of this project.

Amidst the many moving …

Looking Into Pandora's Box: The Content Of Sci-Hub And Its Usage, Bastian Greshake

Copyright, Fair Use, Scholarly Communication, etc.

Despite the growth of Open Access, potentially illegally circumventing paywalls to access scholarly publications is becoming a more mainstream phenomenon. The web service Sci-Hub is amongst the biggest facilitators of this, offering free access to around 62 million publications. So far it is not well studied how and why its users are accessing publications through Sci-Hub. By utilizing the recently released corpus of Sci-Hub and comparing it to the data of ~28 million downloads done through the service, this study tries to address some of these questions. The comparative analysis shows that both the usage and complete corpus is largely …

Uncovering The Confusing Influence Experts Have On Music Copyright Cases, Arata-Enrique Kaku

Honors Projects

Contemporary copyright decisions by Federal Courts perplex composers; am I the creative composer, or am I an infringer on someone else’s intellectual property? By forming a temporary monopoly to monetize new content, copyright protection incentivizes artists to be fruitful. In a creative field like music, an overly broad definition of copyrightable expression can lead to a “chilling effect” on creativity. This chilling effect is exacerbated by the great latitude given expert witnesses to claim infringement based on broad classifications of expressions. My paper addresses the question: To what extent should expert witnesses be probative when they extend ownership rights beyond …

Towards An Effective Regime Against Online Copyright Infringement In India, Ashwin Ramakrishnan

LLM Theses

With Internet usage on the rise, it is important for India to establish an effective regulatory regime to combat piracy and mass copyright infringement online. This thesis argues that, in the face of unique legal and cultural challenges specific to India, present laws in the country have failed to do so. Unless and until these challenges are met it will be difficult to have an effective mechanism that deals with online copyright infringement. Countries like the United States, Canada, Ireland, and France have all adopted different regulatory models. However, this thesis argues that each not only have significant limitations on …

The Problem Of Creative Collaboration, Anthony J. Casey, Andres Sawicki

William & Mary Law Review

In this Article, we explore a central problem facing creative industries: how to organize collaborative creative production. We argue that informal rules are a significant and pervasive—but nonetheless underappreciated—tool for solving the problem. While existing literature has focused on how informal rules sustain incentives for producing creative work, we demonstrate how such rules can facilitate and organize collaboration in the creative space.

We also suggest that informal rules can be a better fit for creative organization than formal law. On the one side, unique features of creativity, especially high uncertainty and low verifiability, lead to organizational challenges that formal law …

Transformative Use In Software, Clark D. Asay

Faculty Scholarship

Fair use is copyright law’s most important defense against claims of copyright infringement. It provides courts with an equitable tool for allowing parties to use the copyrighted materials of others without liability when doing so facilitates copyright’s constitutional purpose of promoting the “progress of Science and the useful Arts.”

When analyzing fair use, modern courts place great emphasis on whether the purportedly fair use involves a “transformative use” of the copyrighted materials. In what some are calling the most important software copyright case in decades, a jury recently handed Google a victory by concluding that Google’s reuse of some of …

Cheddar, Not Swiss: A Director’S Interest In Copyright, Amanda Schwartz

Seton Hall Circuit Review

No abstract provided.

Jailbreak!: What Happens When Autonomous Vehicle Owners Hack Into Their Own Cars, Michael Sinanian

Michigan Telecommunications & Technology Law Review

Autonomous and connected vehicles (ACVs) are a transformational force for humanity. It is highly likely that some owners of ACVs will circumvent their vehicle software to expose unauthorized functionality, known as “jailbreaking”. This would trigger copyright liability, the extent of which would be dependent upon the copyright system’s various rulemaking processes and common law interpretations. This note explores the world of software “jailbreaking”, with its roots in smartphone unlocking, and extrapolates that to ACVs. Some compelling (and at times dangerous) scenarios are contemplated, and recommendations are made for consumers, technologists, manufacturers, and policy makers.

R&D Spending And Patenting In The Technology Hardware Sector In Nations With And Without Fair Use, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

This working paper uses two common indicators of innovation to see how the technology hardware sector compares in countries with and without fair use. It illustrates that research and development spending by firms in these industries has been higher in countries with fair use, controlling for other firm- and country-level factors. It then shows more patents have been granted to the technology sector in countries that have adopted fair use, relative to patents granted to firms in the same industries in other countries, controlling for other country-level factors.

Substantial Similarity: Kohus Got It Right, Gabriel Godoy-Dalmau

Michigan Business & Entrepreneurial Law Review

This Note is organized as follows. Part I discusses the historical development of the substantial similarity inquiry and its role in a Plaintiff’s prima facie case of copyright infringement. Part II evaluates more recent developments in the substantial similarity inquiry. Part III argues that the various standards that lower courts have developed are themselves substantially similar to each other. This analysis is in line with the Sixth Circuit’s decision in Kohus. Although largely ignored by the scholarly community, the Sixth Circuit’s decision in Kohus got it right.

Equitable Resale Royalties, Brian L. Frye

Law Faculty Scholarly Articles

A “resale royalty right” or droit de suite(resale right) is a legal right that gives certain artists the right to claim a percentage of the resale price of the artworks they created. The Berne Convention for the Protection of Literary and Artistic Works and the Tunis Model Law on Copyright for Developing Countries provide for an optional resale royalty right. Many countries have created a resale royalty right, although the particulars of the right differ from country to country. But the United States has repeatedly declined to create a federal resale royalty right, and a federal court recently held …

The Immanent Rationality Of Copyright Law, Shyamkrishna Balganesh

Michigan Law Review

Review of What’s Wrong with Copying? by Abraham Drassinower.

Seeing’S Insight: Toward A Visual Substantial Similarity Test For Copyright Infringement Of Pictorial, Graphic, And Sculptural Works, Moon Hee Lee

Northwestern University Law Review

Before imposing liability for copyright infringement, a court analyzes whether the defendant’s allegedly infringing work is substantially similar to the copyright-holder plaintiff’s allegedly infringed work. This substantial similarity analysis broadly contains two steps. First, facts and ideas do not receive copyright protection and are filtered out. Second, the two works are compared to see if there is material overlap between the two works’ remaining creative expression—i.e., whether or not the two works are substantially similar. This two-step approach furthers the delicate dual goal of copyright law to keep ideas and facts freely available as raw material for creation while awarding …

Show Me The Money: Determining A Celebrity’S Fair Market Value In A Right Of Publicity Action, Cody Reaves

University of Michigan Journal of Law Reform

As the power of celebrity continues to grow in the age of social media, so too does the price of using a celebrity’s name and likeness to promote a product. With the newfound ease of using Twitter, Facebook, and even print media to use a celebrity’s identity in conjunction with a product or company, right of publicity concerns arise. When a company uses a celebrity’s name and likeness without the celebrity’s authorization to market or sell a product, companies open themselves up to right of publicity suits. Many of these cases settle out of court. But when these cases do …

Recreating Copyright: The Cognitive Process Of Creation And Copyright Law, Omri Rachum-Twaig

Fordham Intellectual Property, Media and Entertainment Law Journal

Copyright law reflects the intuitive understanding of creativity in the eyes of the law. This is because copyright law’s primary goal is to promote creativity. But is the legal understanding of creativity in line with cognitive psychology’s understanding of the creative process? This Article examines whether copyright law is harmonious with cognitive psychology’s understanding of creativity. Some scholars posit that theories of creativity fit well with current copyright law. In an article published in the Harvard Law Review, Joseph Fishman, a scholar studying the relationship between intellectual property and creativity, argued that, based upon some ac- counts of creativity, copyright …

Legal And Ethical Issues Around Incorporating Traditional Knowledge In Polar Data Infrastructures, Teresa Scassa, Fraser Taylor

Copyright, Fair Use, Scholarly Communication, etc.

Human knowledge of the polar region is a unique blend of Western scientific knowledge and local and indigenous knowledge. It is increasingly recognized that to exclude Traditional Knowledge from repositories of polar data would both limit the value of such repositories and perpetuate colonial legacies of exclusion and exploitation. However, the inclusion of Traditional Knowledge within repositories that are conceived and designed for Western scientific knowledge raises its own unique challenges. There is increasing acceptance of the need to make these two knowledge systems interoperable but in addition to the technical challenge there are legal and ethical issues involved. These …