Intellectual Property Law Commons^™

Digital Copyright, Jessica D. Litman

Books

In 1998, copyright lobbyists succeeded in persuading Congress to enact laws greatly expanding copyright owners' control over individuals' private uses of their works. The efforts to enforce these new rights have resulted in highly publicized legal battles between established media and new upstarts.

In this book, law professor Jessica Litman questions whether copyright laws crafted by lawyers and their lobbyists really make sense for the vast majority of us. Should every interaction between ordinary consumers and copyright-protected works be restricted by law? Is it practical to enforce such laws, or expect consumers to obey them? What are the effects of …

The Story Of Sony V. Universal Studios: Mary Poppins Meets The Boston Strangler., Jessica Litman

Book Chapters

Sony v. Universal Studios may be the most famous of all copyright cases. People who know nothing about copyright know that the Sony-Betamax case held that home videotaping of television programs is fair use. Paradoxically, although the Supreme Court granted certiorari in the case to decide whether the copyright law permitted consumers to engage in private home copying of television programs, the majority ended up crafting its analysis to avoid answering that question definitively. Instead, it ruled that even if consumers sometimes violated the copyright law when they taped television programs off the air, that violation did not make the …

The Economics Of Open Access Law Publishing, Jessica D. Litman

Articles

The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. Recently, we have seen a number of high-profile experiments seeking to use one of a variety of forms of open access scholarly publishing to develop an alternative model. Critics have not quarreled with the goals of open access publishing; instead, they've attacked the viability of the open access business model. If we are examining the economics of open access publishing, we shouldn't limit ourselves to the question whether open access journals have fielded a …

Harnessing And Sharing The Benefits Of State-Sponsored Research: Intellectual Property Rights And Data Sharing In California's Stem Cell Initiative, Rebecca S. Eisenberg, Arti K. Rai

Articles

This Article discusses data sharing in California's stem cell initiative against the background of other data sharing efforts and in light of the competing interests that CIRM is directed to balance. We begin by considering how IP law affects data sharing. We then assess the strategic considerations that guide the IP and data policies and strategies of federal, state, and private research sponsors. With this background, we discuss four specific sets of issues that public sponsors of data-rich research, including CIRM, are likely to confront: (1) how to motivate researchers to contribute data; (2) who should have access to the …

War And Peace: The 34th Annual Donald C. Brace Lecture, Jessica D. Litman

Other Publications

I'd like to thank the Copyright Society and the Brace committee for inviting me to speak to you this evening. I am honored that you invited me to give this lecture. I want to talk a little bit about war - copyright war - and then I want to talk a little bit about peace. It's become conventional that we're in the middle of a copyright war.' I tried to track down who started calling it that, and what I can tell you is that about ten years ago, about the time that copyright lawyers everywhere were arguing about the …

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 …

An Orphan Works Affirmative Defense To Copyright Infringement Actions, Jerry Brito, Bridget Dooling

Michigan Telecommunications & Technology Law Review

Laurence Peter once said that "[o]riginality is the fine art of remembering what you hear but forgetting where you heard it." Yet that clever quip is itself unoriginal. Although there may be nothing new under the sun--the arrangement of different bits of existing cultural matter in new and interesting combinations is the source of much originality. Yet today much of our cultural raw material is outside the reach of creators because of the orphan works problem. This problem renders untouchable a large swath of existing artistic, literary, and other works because if a work's copyright owner cannot be found to …

God In The Machine: A New Structural Analysis Of Copyright's Fair Use Doctrine, Matthew Sag

Michigan Telecommunications & Technology Law Review

Recognition of the structural role of fair use has the potential to mitigate some of the uncertainty of current fair use jurisprudence. The statutory framework for fair use both mitigates and causes uncertainty. It mitigates uncertainty by providing a consistent framework of analysis the four statutory factors. However, when judges apply the statutory factors without articulating or justifying their own assumptions, they increase uncertainty. The statutory factors mean nothing without certain a priori assumptions as to the scope of the copyright owner's rights. A more stable and predictable fair use jurisprudence would begin to emerge if those assumptions were made …

Intelligent Agents: Authors, Makers, And Owners Of Computer-Generated Works In Canadian Copyright Law, Rex M. Shoyama

Canadian Journal of Law and Technology

The central objective of this article is to propose a clarification of copyright law as applied to works created by intelligent agents. In Part I, the concepts of artificial intelligence and intelligent agents are introduced. Part II identifies the challenges that are presented to the tests of originality and authorship in the application of copyright to works generated by intelligent agents. It is argued that works created by intelligent agents may meet the tests of originality and authorship. It is also argued that the con- cepts of ‘‘author’’, ‘‘owner’’, and ‘‘maker’’ are distinct from one another in Canadian copyright law. …

Black Musical Traditions And Copyright Law: Historical Tensions, Candace G. Hines

Michigan Journal of Race and Law

This Note begins with a discussion of copyright law and then examines Black musical traditions and how they have conflicted with American copyright law through the years. Part I explains the history of American copyright law and its theoretical underpinnings. Part II relates common Black musical traditions in more detail. Part III illustrates how the foundations of Black musical traditions can be found in Negro Spirituals. Part IV outlines the notion of Black music as it evolved in ragtime. Part V describes how copyright undermined the traditions of blues, jazz, and R&B. Part VI explains how rock 'n' roll's prominence …

An Idea Whose Time Has Come – But Where Will It Go, Jane C. Ginsburg

Faculty Scholarship

This Reply picks up where Professor Miller's bold proposal leaves off: with the private international law and international copyright implications of state common law protection for idea-submitters. We will first address the compatibility of the proposal with international copyright norms disqualifying ideas from copyright protection. We will then turn to the consequences of the proposal for a federal system. Professor Miller's article thoroughly examines one aspect of the federalism problem, that of federal copyright policy preemption of statebased idea protection. But in advocating a regime constricted to the fifty separate states, not all of whose courts choose to secure idea …

Digital Music Sampling And Copyright Law, Carlos Ruiz De La Torre

Vanderbilt Journal of Entertainment & Technology Law

Copyright law governing digital music sampling is faced with two competing interests: first, the owners of recording and composition copyrights need to be reasonably compensated when their creative works are reused by sampling artists, but secondly, sampling artists should have a reasonable degree of freedom to rework fragments of existing recordings at a reasonable cost. A system needs to balance these interests and reduce the degree of uncertainty that arises when the use of a sample infringes a copyright. This Article will discuss the current state of the law as it relates to digital sampling and will then articulate five …

The Author's Name As A Trademark: A Perverse Perspective On The Moral Right Of "Paternity"?, Jane C. Ginsburg

Faculty Scholarship

The US. Supreme Court in its 2003 decision in Dastar v. Twentieth Century Fox, construing the Lanham Federal Trademarks Act, deprived authors of their principal legal means to enforce attribution rights in the US. I have elsewhere criticized the Dastar Court's analysis, and have urged amending the Copyright Act to provide express recognition of the attribution right. This time, however, I propose to reconsider the foundation for the attribution right; I draw on literary and historical sources to supplement legal arguments concerning the meaning of the author's name. I will suggest that, contrary to the usual characterization of this …

Legal Protection Of Technological Measures Protecting Works Of Authorship: International Obligations And The Us Experience, Jane C. Ginsburg

Faculty Scholarship

The ongoing transposition of the EU Information Society Directive's requirement that member States adopt of legal prohibitions of the circumvention of technological protections of works of authorship occasions this review of international obligations and their implementation in the US. This article addresses the scope of international obligations the WIPO Copyright Treaties impose on member States to protect against circumvention, as well as the US experience with the Digital Millennium Copyright Act's prohibitions on circumvention of access and copy controls. It examines the text of the statute, codified at sec. 1201 of the 1976 Copyright Act, the five years of judicial …

Fair's Fair: An Argument For Mandatory Disclosure Of Technological Protection Measures, Robert C. Denicola

Michigan Telecommunications & Technology Law Review

Section 1201(a)(1) of the Copyright Act prohibits the act of "circumvent[ing] a technological measure that effectively controls access to a work," including, for example, by-passing password protection or encryption intended to restrict access to paying customers. Section 1201(a)(2) prohibits the manufacture or sale of "any technology, product, service, device, component, or part thereof" primarily designed for the purpose of circumventing access controls on copyrighted works. Additionally, § 1202(b) prohibits the manufacture or sale of products, devices or services primarily designed to circumvent "a technological measure that effectively protects a right of a copyright owner"--for example, a technological measure intended to …

Gaining Momentum: A Review Of Recent Developments Surrounding The Expansion Of The Copyright Misuse Doctrine And Analylsis Of The Doctrine In Its Current Form, Neal Hartzog

Michigan Telecommunications & Technology Law Review

The United States intellectual property ("IP") system is the foundation for incentives for authors and inventors to create and invent so that their work will be distributed to the public for the betterment of society. These incentives, in the form of limited monopolies over creations via patents, copyrights, and trademarks, are becoming increasingly important as the United States depends upon intellectual property to sustain its economy. As the intellectual property industry grows, it becomes vital to preserve the impetus behind its creation: the public good, or more specifically, the public's ability to make use of and enjoy new ideas and …

Musical Musings: The Case For Rethinking Music Copyright Protection, J. Michael Keyes

Michigan Telecommunications & Technology Law Review

This Article focuses on the topic of music copyright, but addresses this legal issue from a different vantage point than that of the industry insiders, insightful scholars, and policy makers that have weighed in on the debate. Instead of focusing on the issues regarding wholesale digital reproduction and dissemination of music protected by copyright, this Article focuses on music copyright infringement when the claim is that a given piece of music is "substantially similar" to another piece of music protected by copyright. Part I of this Article touches on the history of the music industry and copyright in this country, …

From The Cluetrain To The Panopticon: Isp Activity Characterization And Control Of Internet Communications, Eric Evans

Michigan Telecommunications & Technology Law Review

If ISPs are exposed to liability for forwarding others' messages--messages originating with other ISPs or with the ISP's own users--the norm of universal mutual message forwarding that underlies the present operation of the Internet will be threatened. This Note will argue that society presently confronts a choice between a common carrier Internet characterized by universal mutual message forwarding and a monitored and controlled Internet. Part I will describe the underlying rules that govern ISPs' liability for their users' actions. Part II will argue that the present statutory regime governing ISPs' liability for users' copyright infringement includes elements that provide ISPs …

A Guide To U.S. Intellectual Property Searching Online, Jennifer L. Selby

Law Librarian Scholarship

The disadvantage to searching intellectual property online, patents in particular, is that the available online databases do not encompass the array and extent of tools needed to conduct a comprehensive search.7 Essentially, you can search patents on the web, but you cannot do a true patent search. A complete patentability search must include not only U.S. patents, but foreign patents and all relevant non-patent literature also (all resources together are referred to as ‘‘prior art’’ for an invention).8 These additional resources can be researched at the Patent Office Library in Washington D.C., and, on a more limited basis, at a …

Mutant Copyrights And Backdoor Patents: The Problem Of Overlapping Intellectual Property Protection, Viva R. Moffat

Sturm College of Law: Faculty Scholarship

The interactions between the three federal schemes of intellectual property protection - copyright, patent, and trademark - have often been overlooked. This article addresses some of the issues raised by the overlaps between these areas of law and concludes that the availability of more than one form of protection for certain creative or inventive works creates problems in many circumstances; that those problems have not been considered fully by policymakers or courts; and that overlapping protection interferes with the benefits meant to flow to the public. All three areas of federal intellectual property protection are commonly seen as regulatory schemes …

Copyright Infringement, Sex Trafficking, And Defamation In The Fictional Life Of A Geisha, Susan Tiefenbrun

Michigan Journal of Gender & Law

Memoirs of a Geisha has sold and made millions for Arthur Golden since 1997. This is his first novel, and it has earned him worldwide acclaim. A feature film version directed by Steven Spielberg is in the works. The book is translated into more than twenty languages. This article uses the book and the legal controversy that ensued after its publication to ask, and hopefully answer, two questions: First, is the geisha tradition as described by Golden in his fictional biography a variant of sex trafficking and sexual slavery which, despite possible cultural justifications, should be abolished by law? Second, …

Copyright Non–Compliance (Or Why We Can’T “Just Say Yes” To Licensing)., Jessica D. Litman

Book Chapters

I have complained more than once over the past few years that the copyright law is complicated, arcane, and counterintuitive; and that the upshot of that is that people don't believe that the copyright law says what it does say. People do seem to buy into copyright norms, but they don't translate those norms into the rules that the copyright statute does; they find it very hard to believe that there's really a law out there that says the stuff the copyright law says.

The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg

Faculty Scholarship

If you inquired among the general public, “What does U.S. copyright law protect?” many people might start by grumbling that it overprotects piggish record companies. Calming slightly, they might next reply that copyright protects authors' rights and that among those is the right to be recognized as the author of the work. Indeed, few interests seem as fundamentally intuitive as that authorship credit should be given where credit is due. For example, in prelapsarian, pre-Napster days, the act of copyright infringement in which a youthful individual most likely engaged was probably plagiarism: there, lifting another author's text may have been …

The (New?) Right Of Making Available To The Public, Jane C. Ginsburg

Faculty Scholarship

I am honoured to contribute to this Festschrift for Bill Cornish, the leading exponent of the English (even if many of them are in fact Anzacs) School of Copyright and Intellectual Property. In addition to greatly valuing his scholarship, I hold Bill in especial esteem for his unswerving sanity in ALAI meetings, and for the piano duets in which he occasionally indulges my spouse. The following essay is offered in the spirit of international inquisitiveness that has animated so many of my contacts with Bill.

Rethinking Copyright Misuse, Kathryn Judge

Faculty Scholarship

Over the last few decades, copyright has evolved in dramatic and unprecedented ways. At the heart of this evolution lies a series of changes in the statutory scheme that have substantially expanded copyright's scope. There has also been a rise in private ordering as copyright holders increasingly use licenses to govern use of their copyrighted material and thereby supplant the default terms prescribed by the Copyright Act. Mediating and contributing to this evolution has been the judiciary. The judiciary has long played an active role in protecting copyright policy, and the dynamism of the last thirty years has only accentuated …

Constitutional Purpose And Inter-Clause Conflict: The Constraints Imposed On Congress By The Copyright Clause, Andrew M. Hetherington

Michigan Telecommunications & Technology Law Review

The argument that the preamble of the Copyright Clause provides a strict constraint on congressional intellectual property legislation has met with broad support among legal academics, but it is viewed with some skepticism by the judiciary. The Supreme Court did acknowledge in Eldred that intellectual property legislation must, in at least some sense, promote the progress of science, but stressed that it is for Congress, not the courts, to decide what does and does not promote progress. The Court specifically rejected a "stringent" form of rational basis review for Copyright Clause enactments proposed in Justice Breyer's dissent, noting that the …

Eldred And Lochner: Copyright Term Extension And Intellectual Property As Constitutional Property, Paul M. Schwartz, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position--we refer to them as the IP Restrictors--represent a remarkable array of constitutional and intellectual property scholars. …

The Concept Of Authorship In Comparative Copyright Law, Jane C. Ginsburg

Faculty Scholarship

In contemporary debates over copyright, the figure of the author is too-often absent. As a result, these discussions tend to lose sight of copyright's role in fostering creativity. I believe that refocussing discussion on authors – the constitutional subjects of copyright – should restore a proper perspective on copyright law, as a system designed to advance the public goal of expanding knowledge, by means of stimulating the efforts and imaginations of private creative actors. Copyright cannot be understood merely as a grudgingly tolerated way station on the road to the public domain. Nor does a view of copyright as a …

1984 And Beyond: Two Decades Of Copyright Law, Tyler T. Ochoa

Faculty Publications

During the past two decades, engineers, authors, publishers, consumers, lawyers and academics have witnessed extraordinary developments in the technological landscape, often leading to equally dramatic developments in the law of copyright. Many of these developments have been chronicled (or foreshadowed) in the pages of the Santa Clara Computer and High Technology Law Journal. To celebrate the Journal's 20th Anniversary, this essay will place a number of articles which have appeared in the Journal in their historical context by taking a look back on how the law of copyright has changed during the past twenty years.

Publishing Privacy: Intellectual Property, Self-Expression, And The Victorian Novel, Jessica Bulman-Pozen

Faculty Scholarship

The relationship between privacy and intellectual property has resurfaced with a twist at the turn of the twenty-first century. If Victorian authors regarded intellectual property as private, contemporary proposals instead urge us to regard private information as property. In response to technological developments that have facilitated unprecedented invasions of individuals’ privacy, some scholars have advocated legally classifying private information as a form of property. These scholars insist that the best way to respond to privacy violations, particularly corporate commodification of personal data, is to invest people with property rights that would furnish control over their personal information. Insofar as intellectual …