Intellectual Property Law Commons^™

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 …

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 …

File Sharing, Copyright, And The Optimal Production Of Music, Gerald R. Faulhaber

Michigan Telecommunications & Technology Law Review

Much economic, political, judicial and legal attention has been showered on the significant changes currently taking place within the music production and distribution business forced by the use of the Internet for both file sharing (of unauthorized copyrighted material) and more recent online (legal) music distribution. The strong demand for music, coupled with the low cost of distributing illegal copies via peer-to-peer (P2P) systems, is unraveling the business model by which music has traditionally been created, developed, and distributed. Application of traditional copyright law has been ineffective in stopping the loss of business in the traditional channels. Producers have implemented …

The Half-Fairness Of Google's Plan To Make The World's Collection Of Books Searchable, Steven Hetcher

Michigan Telecommunications & Technology Law Review

Google's major new initiative is to undertake the task of digitizing the world's collection of books so as to make them searchable. The very idea is audacious, but what is more so is that Google plans to copy without first seeking the permission of the owners of these works. Google Print would make available what is, by conventional measures at least, the highest grade of information--books produced by millions of the world's leading scholars. This is in stark contrast to the inconsistent quality spectrum one encounters through other online sources such as peer-to-peer networks and blogs, where there currently exists …

The Temporal Dynamics Of Capable Of Substantial Noninfringing Uses, R. Anthony Reese

Michigan Telecommunications & Technology Law Review

The copyright issues raised by "dual-use" technologies--equipment that can be used both in ways that infringe copyright and in ways that do not--first gained prominence in connection with the litigation over videocassette recorders that culminated in the Supreme Court's decision in Sony in 1984. Copyright owners had asserted that Sony's manufacture and distribution of VCRs rendered it liable for copyright infringement committed by customers using their Sony VCRs. The Supreme Court in Sony concluded that copyright law did not impose such secondary liability where the device in question was capable of substantial noninfringing uses (and that the VCR was such …

The Intent Element Of Inducement To Infringe Under Patent Law: Reflections On Grokster, Lynda J. Oswald

Michigan Telecommunications & Technology Law Review

In June, 2005, the United States Supreme Court set forth an "inducement" rule in MGM Studios, Inc. v. Grokster, Ltd. that imposes secondary liability on "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement." The Court emphasized the limitations of the liability standard it was setting forth, stating that the target was only "purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise." Yet, the liability standard set forth in Grokster …

21st Century Copyright Law In The Digital Domain Symposium Transcript, Symposium Panelists

Michigan Telecommunications & Technology Law Review

21st Century Copyright Law in the Digital Domain Symposium held at Universtiy of Michigan Law School Friday, March 24, 2006

Imperfect 10: Digital Advances And Market Impact In Fair Use Analysis, Britton Payne

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Fairly Used: Why Google’S Book Project Should Prevail Under The Fair Use Defense, Melanie Costantino

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

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 …

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 …

Beyond Abstraction, The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew J. Sag

ExpressO

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. This article explores the relationship between copyright scope, doctrinal efficiency and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law. The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use.

Opting Out: Procedural Fair Use, Michael R. Mattioli

ExpressO

This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright’s doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn’t want their books scanned. Despite this measure, two major authors’ groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract …

Fair Use And The First Amendment: Corporate Control Of Copyright Is Stifling Documentary Making And Thwarting The Aims Of The First Amendment, Paige Gold

ExpressO

Documentary motion pictures constitute a crucial part of contemporary public debate, because in today’s highly consolidated mass media environment, documentaries offer the kinds of independent voices that the First Amendment was designed to protect. However, current intellectual property practices are chilling speech by forcing documentary filmmakers to tailor their films to accommodate new, strict licensing practices. When filmmakers are compelled to edit their work to meet insurance requirements, it harms the interests of not just the filmmaker, but also the public. Thus, the “clearance culture,” in which anything and everything that could possibly lead to a lawsuit must be cleared, …

Digital Rights Management And The Process Of Fair Use, Timothy K. Armstrong

Faculty Articles and Other Publications

Producers of digital media works increasingly employ technological protection measures, commonly referred to as "digital rights management" (or "DRM") technologies, that prevent the works from being accessed or used except upon conditions the producers themselves specify. These technologies have come under criticism for interfering with the rights users enjoy under copyright law, including the right to engage in fair uses of the DRM-protected works. Most DRM mechanisms are not engineered to include exceptions for fair use, and user circumvention of the DRM may violate the Digital Millennium Copyright Act even if the use for which the circumvention occurs is itself …

Legal Protocols And Practices For Managing Copyright In Electronic Theses, Mark Perry, Paula Callan

Law Publications

At Queensland University of Technology (QUT) in Brisbane Australia, PhD and Masters by Research candidates are required to deposit both print and digital copies of their theses and dissertations. The fulltext of these digital theses is then made freely available online via the Australian Digital Thesis (ADT) collection. Management of copyright issues has been a major headache and workload problem for the Library: there are many parties involved in the deposit process, and the lack of a common understanding about the rights and responsibilities of the various stakeholders has made the process very complex and time consuming. The response of …

Performance, Property, And The Slashing Of Gender In Fan Fiction , Sonia K. Katyal

Faculty Scholarship

Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law - as it is owned, constituted, created, and enforced - both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have …

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 …

Bound By Law? Trapped In A Struggle She Didn't Understand, By Day A Filmmaker, By Night She Fought For Fair Use! [Tales From The Public Domain], Keith Aoki, James Boyle, Jennifer Jenkins

Copyright, Fair Use, Scholarly Communication, etc.

A graphic novel about fair use with respect to United States copyright law.

Synopsis:

A documentary is being filmed. A cell phone rings, playing the "Rocky" theme song. The filmmaker is told she must pay $10,000 to clear the rights for the song. Can this be true? "Eyes on the Prize," the great civil rights documentary, was pulled from circulation because the filmmakers' rights to music and footage had expired.

What's going on here? It's the collision of documentary filmmaking and intellectual property law, and it's the inspiration for this comic book. Follow its heroine Akika as she films her …

Beyond Abstraction: The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew Sag

Faculty Articles

Uncertainty as to the optimum extent of protection generally limits the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This Article explores the relationship between copyright scope, doctrinal efficiency, and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law.

The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use. The metric-driven analysis adopted in this Article demonstrates the general robustness of the market-failure approach to …

A Winner Is Who? Fair Use And The Online Distribution Of Manga And Video Game Fan Translations, Jaime E. Muscar

Vanderbilt Journal of Entertainment & Technology Law

This note examines the legality of fan translations of Japanese comic books, known as manga, and video games distributed over the Internet, with special consideration given to the application of the fair use doctrine. Technology related to the distribution of media online grows exponentially compared to the law governing this technology. Although much recent litigation has limited the online distribution of traditional media, both copyright holders and courts have largely ignored a fringe segment of this distribution. This fringe includes manga and video games. Manga can be easily shared online by scanning images, and video games are now frequently converted …

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 …

Building Universal Digital Libraries: An Agenda For Copyright Reform , Hannibal B. Travis

ExpressO

This article proposes a series of copyright reforms to pave the way for digital library projects like Project Gutenberg, the Internet Archive, and Google Print, which promise to make much of the world’s knowledge easily searchable and accessible from anywhere. Existing law frustrates digital library growth and development by granting overlapping, overbroad, and near-perpetual copyrights in books, art, audiovisual works, and digital content. Digital libraries would benefit from an expanded public domain, revitalized fair use doctrine and originality requirement, rationalized systems for copyright registration and transfer, and a new framework for compensating copyright owners for online infringement without imposing derivative …

Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale

Faculty Scholarship

The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal.

In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …

Comment: Sony, Fair Use, And File Sharing, Stacey Dogan

Faculty Scholarship

In this short Commentary, I would like to explore just one of the interesting strands developed in her paper-the scope of personal fair use in Sony, and its implications for peer-to-peer file sharing. More specifically, I want to reflect on the suggestion that Sony's broad exemption for personal copying has eroded into something unrecognizable, and that it is this erosion-rather than any difference between file-sharing and time shifting-that explains the courts' hostility to the fair use defense in the peer-to-peer context.

Fair Use: Threat Or Threatened?, Wendy J. Gordon

Faculty Scholarship

Thank you for inviting me to address the Symposium. It is an honor to participate in the exchange of such interesting and informed views, and to be back at Case.

The original title for my talk had been Warring Frameworks for Fair Use. I had intended to discuss two interpretations of market failure analysis, and to suggest how resolving the conflict between those warring frameworks might resolve a variety of fair use issues.

But then it struck me that this might not be what you, a group made up of both generalists and specialists, would most want in a luncheon …

The Drm Dilemma: Re-Aligning Rights Under The Digital Millennium Copyright Act, Jacqueline D. Lipton

ExpressO

The Digital Millennium Copyright Act (‘DMCA’) prevents unauthorized copying and distribution of digital copyright works by regulating devices that can be used to circumvent Digital Rights Management (‘DRM’) measures that are used to restrict access to those works. A significant problem is that those devices, like many new technologies, have the potential to be used for both socially harmful and socially beneficial purposes. There is no obvious way for Congress to regulate circumvention devices to prevent the social harms, while at the same time facilitating the social benefits they might provide. Recent judicial interpretations of the DMCA have unsurprisingly erred …

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 …

God In The Machine: A New Structural Analysis Of Copyright’S Fair Use Doctrine, Matthew J. Sag

ExpressO

This article is a broad reconceptualization of the role of fair use within copyright law. Fair use is commonly thought of as just one of many exceptions limiting copyright. I show that fair use has actually enabled the expansion of copyright protection, through its structural role.

The structural role of fair use has two aspects. First, copyright necessarily must balance intellectual property incentives with the protection of free speech and innovation; fair use constitutes that balancing mechanism. By establishing the outer limits of copyright, fair use in fact enables an expansive interpretation of author’s rights within those bounds. Second, because …