Intellectual Property Law Commons^™

Copyright, Wendy J. Gordon, Robert G. Bone

Faculty Scholarship

Copyright is the branch of Intellectual Property Law that governs works of expression such as books, paintings and songs, and the expressive aspects of computer programs. Intellectual products such as these have a partially public goods character: they are largely inexhaustible and nonexcludable. Intellectual Property Law responds to inexcludability by giving producers legal rights to exclude nonpayers from certain usages of their intellectual products. The goal is to provide incentives for new production at fairly low transaction costs. However, the copyright owner will charge a price above marginal cost and this, coupled with the inexhaustibility of most copyrighted products, creates …

Copyright Use And Excuse On The Internet, Jane C. Ginsburg

Faculty Scholarship

1998 ended with voluminous copyright legislation, pompously titled the "Digital Millennium Copyright Act" [hereafter "DMCA"], and intended to equip the copyright law to meet the challenges of online digital exploitation of works of authorship. 1999 and 2000 have brought some of the ensuing confrontations between copyright owners and Internet entrepreneurs to the courts. The evolving caselaw affords an initial opportunity to assess whether the copyright law as abundantly amended can indeed respond to digital networks, or whether the rapid development of the Internet inevitably outstrips Congress' and the courts' attempts to keep pace.

In titling this Article "Copyright Use and …

Internet Framing: Complement Or Hijack , Raymond Chan

Michigan Telecommunications & Technology Law Review

Currently, the technology of "framing" allows a web site to: (1) pull in the contents of an external site into the local site; (2) "chop" up the contents of the external site into different "frames" or parts; and (3) display only the frames that are beneficial to the framing site. When an advertisements is blocked off by a frame, an advertiser who paid to advertise at an external (framed) site may cease to purchase advertising space from that external site if the framing activities of another web site prevent the advertisement from reaching prospective viewers. From the perspective of the …

Copyright Infringement On The Internet: Can The Wild, Wild West Be Tamed?, David Allweiss

Touro Law Review

No abstract provided.

Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen

Michigan Law Review

Ninety-three years ago, in Lochner v. New York, the Supreme Court struck down a maximum-working-hours law for bakers as an impermissible invasion of employer-employee liberty of contract and, by implication, of the employer's property rights in his business. Lochner came to symbolize, and was vilified for, a vision of state power as rigidly circumscribed by the operation of judicially-determined laws of social ordering. By the late 1930s, the Court had changed course and accepted that the states' police power - or, in the case of Congress, the commerce power - encompassed even protective regulation of the parameters of the private …

On Commodifying Intangibles, Wendy J. Gordon, Sam Postbrief

Faculty Scholarship

It was made clear long ago that property and value are different things. Value exists. It is a fact. It can arise from law, and much of law aims at creating more value in the world. But value can also arise in spite of law (consider, for example, the fortunes that bootleggers made during the Roaring Twenties), or in law's interstices. When a particular value arises despite a lack of explicit legal protection, its possessors often ask courts or legislatures to give them a legal entitlement to preserve and further exploit that value. Typically the holders demand (1) a liberty …

Fair Use And Educational Copying: A Reexamination Of Princeton University Press V. Michigan Document Services, Inc., Gilbert Busby

Kentucky Law Journal

No abstract provided.

The Defense Of "Fair Use": A Primer, Alan J. Hartnick

Touro Law Review

No abstract provided.

Is Turn About Fair Play? Copyright Law And The Fair Use Of Computer Software Loaded Into Ram, Chad G. Asarch

Michigan Law Review

Computer systems, especially those in heavy-use commercial settings, often require routine maintenance to continue functioning properly. Many businesses turn to an independent service organization ("IS0") to provide computer maintenance services because ISOs frequently charge less than the original equipment manufacturer ("OEM") for those services. The tremendous growth in computer use has spawned a multi-billion dollar computer maintenance industry in the United States, and ISOs and OEMs have become engaged in fierce competition for this computer service business. The struggle between ISOs and OEMs to capture this expanding market has spilled over into the courts, spawning a number of recent decisions …

Reexamining Copyright's Incentives-Access Paradigm, Glynn S. Lunney, Jr., Glynn Lunney

Vanderbilt Law Review

For the past three centuries, defining the appropriate scope of copyright has entailed an examination of incentives and access.' Broadening the scope of copyright increases the incentive to produce works of authorship and results in a greater variety of such works. Broadening copyright's scope, however, also limits access to such works both generally, by increasing their price, and specifically, by limiting the material that others can use to create additional works. Given these competing considerations, defining copyright's proper scope has become a matter of balancing the benefits of broader protection, in the form of increased incentive to produce such works, …

Deconstructing The Fair Use Doctrine:  The Cost Of Personal And Workplace Copying After American Geophysical Union V. Texaco, Inc., Nicole B. Cásarez

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Economics Of Copyright, Robert G. Bone, Wendy J. Gordon

Scholarship Chronologically

Copyright law protects works of creative expression. At its relatively uncontroversial core lie songs, plays, novels, paintings, and other works of aesthetic value. But copyright is not confined solely to aesthetic subject matter; in many countries, it extends to works of fact, such as biographies, maps, and telephone directories, and to works with practical value. For example, one of the most controversial issues in copyright law today is whether and how much copyright should protect computer programs.

Copyright On The Internet: A Critique Of The White Paper's Recommendation For Updating The Copyright Act And How The Courts Are Already Filling In Its Most Important Shortcoming, On-Line Service Provider Liability, George Smirnoff Iii

Cleveland State Law Review

The current technological challenge for American copyright law is the National Information Infrastructure (NII), which is a network of networks used to carry digital transmissions through thousands of computer networks using a common set of protocols. Currently, the Copyright Act does not expressly include works created, copied, transmitted, or performed on the NII. President Clinton formed the Information Infrastructure Task Force (the Working Group) "to articulate and implement the Administration's vision for the National Information Infrastructure." On September 5, 1995, the Working Group released the White Paper which addresses special intellectual property concerns and issues raised by the development and …

Multimedia Computing: Copyright Law's "Last Stand", Steven Pepe

Touro Law Review

No abstract provided.

Copyrighting Newscasts: An Argument For An Open Market, Michael W. Baird

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Wright V. Warner Books, Inc.: The Latest Chapter In The Second Circuit's Continuing Struggle With Fair Use And Unpublished Works, Ginger A. Gaines

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Letter From Professor Timothy J. Brennan, Timothy J. Brennan

Scholarship Chronologically

Dear Wendy,

Thanks for sending me the recent pair of articles. I just had a chance to read them today while I'm getting my furnace and AC replaced. I enjoyed them very much, both for the chance to think about copyright issues and to read yet again your creative and insightful approach to them.

The most intriguing thing about the Dayton piece was the asymmetric mar- ket failure idea. (I'll come back to the prisoners' dilemma in connection with the LCP paper!) Your point that justifying copyright requires the belief that intellectual property markets won't work without copyright and that …

Beyond Betamax And Broadcast: Home Recording From Pay Television And The Fair Use Doctrine, Joni Lupovitz

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Incidental Artwork In Television Scene Backgrounds: Fair Use Or Copyright Infringement?, Alexandra Lyras

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Rap Parodies?: An In-Depth Look At Acuff-Rose Music, Inc. V. Campbell, Robert B. O'Connor

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Reproduction Of Protected Works For University Research Or Teaching, Jane C. Ginsburg

Faculty Scholarship

The new means of reproduction for teaching and research – photocopying, downloading, optical scanning – present special challenges to intellectual property teachers. As researchers and educators, we may rejoice at the vastly enhanced access these technologies afford to an enormous, and ever-growing, diversity of materials. The convenience of the photocopier is well-known. Digital media will accelerate production and dissemination of copies. Not only will computers, scanners and facsimile machines make it easier and faster to copy, but they will facilitate the dispersal of copies to all points of the globe.

As scholars of intellectual property, we may be concerned about …

Recent United States Copyright Reforms: Congress Catches The Spirit Of Berne, Graeme B. Dinwoodie

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

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.

Testimony: Joint Hearing On H.R. 4263 & S. 2370, Roger J. Miner '56

Intellectual Property

No abstract provided.

Exploiting Stolen Text: Fair Use Or Foul Play?, Roger J. Miner '56

Intellectual Property

No abstract provided.

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

University of Miami 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. …

Fair Use And University Photocopying: Addison-Wesley Publishing V. New York University, Eric D. Brandfonbrener

University of Michigan Journal of Law Reform

Part I of this Note describes copyright law as it applies to university photocopy users, including an examination of the relevant legislative histories. Part II addresses the case law on university photocopying, both prior to and following the adoption of the Act. Part III briefly discusses the policies underlying university photocopying. The Note concludes with an analysis of the NYU settlement in relation to copyright law.

Notes On Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon

Scholarship Chronologically

At first blush, the creation of i/p seems to meet this test of Locke’s proviso, namely, that strangers cannot complain of the ownership if after the appropriation, “there was as good left, as that already possessed, and more than he knew what to do with, or his industry could reach to.” There would seem to be a nearly infinite store of possible melodies, poems, novels, ideas; granting ownership over one variant which has been reduced to expression by a creator wouldn’t seem to interfere with the stranger’s ability to create his own.