Intellectual Property Law Commons^™

F(R)Ee Expression: Reconciling Copyright & The First Amendment, Raymond Shih Ray Ku

Faculty Publications

This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers' intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers' intent arguably increases such conflicts. Moreover, …

The Public's Right To Fair Use: Amending Section 107 To Avoid The "Fared Use" Fallacy, Wendy J. Gordon, Daniel Bahls

Faculty Scholarship

Under provocative titles like "Fared Use" and "The End of Friction," commentators argue about whether or not the copyright doctrine of fair use should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. The Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The …

Mashed Up Videos And Broken Down Copyright: Changing Copyright To Promote The First Amendment Values Of Transformative Video, Andrew S. Long

Oklahoma Law Review

No abstract provided.

Introducing A Takedown For Trade Secrets On The Internet, Elizabeth A. Rowe

UF Law Faculty Publications

This Article explores, for the first time, an existing void in trade-secret law. When a trade-secret owner discovers that its trade secrets have been posted on the Internet, there is currently no legislative mechanism by which the owner can request that the information be taken down. The only remedy to effectuate removal of the material is to obtain a court order, usually either a temporary restraining order or a preliminary injunction. When a trade secret appears on the Internet, the owner often loses the ability to continue to claim it as a trade secret and to prevent others from using …

No Reason To Live: Dilution Laws As Unconstitutional Restrictions On Commercial Speech, Mary Lafrance

Scholarly Works

Traditionally, trademark and unfair competition laws have protected trademark owners against unauthorized uses of their marks that are likely to confuse or mislead consumers about the origin of goods or services. If a particular use is not likely to confuse or mislead, then it is not actionable under traditional infringement regimes. When applied to commercial speech, as opposed to noncommercial expression, traditional trademark and unfair competition laws generally have survived scrutiny under the First Amendment, because these laws restrict only commercial speech that is false or misleading.

Dilution laws, however, do not restrict speech that is false or misleading. Dilution …

The First Amendment Versus Operational Security: Where Should The Milblogging Balance Lie?, Katherine C. Den Bleyker

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

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, …

Rankings, Reductionism, And Responsibility, Frank Pasquale

Faculty Scholarship

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …

Equal Protection In The World Of Art And Obscenity: The Art Photographer's Latent Struggle With Obscenity Standards In Contemporary America, Elaine Wang

Vanderbilt Journal of Entertainment & Technology Law

Part I of this article describes the initial hurdles that all visual art forms, including photography, face with respect to First Amendment protection given the power of visual imagery and the three-pronged test for obscenity set forth in Miller v. California. Of particular relevance is the "serious artistic value" prong of the Miller test and the problems inherent in determining who is to judge as well as how one might judge whether a work, particularly a photograph that may be construed to have a non-artistic function, possesses "serious artistic value."

Part II addresses the overall approach to photography in three …

Copyright Lochnerism, Raymond Shih Ray Ku

Faculty Publications

Part I of this essay outlines the conflict between copyright and the First amendment as well as, the complementary argument for reconciling copyright and free speech, as it has been formulated by scholars and the Supreme Court. Part II discusses what I have referred to as the Framers' copyright and the extent to which arguments based upon the Framers' intent in this area may reconcile copyright and free speech. Lastly, Part III argues that reliance upon the complementary argument to deny any role for heightened First Amendment review in copyright cases is subject to two interrelated criticisms of Lochner. By …

The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna

Journal Articles

This contribution to the Washington University School of Law conference on the Rehnquist Court and the First Amendment addresses the Rehnquist Court's view of the role of the First Amendment in intellectual property cases. It argues that, while the Rehnquist Court was not eager to find a conflict between intellectual property laws and the First Amendment, there is reason to believe that it set the stage for greater First Amendment scrutiny of intellectual property protections. At the very least, the Court left that road open to future courts, which might be inclined to view intellectual property more skeptically.

Rolling The Dice: Are Online Gambling Advertisers "Aiding And Abetting" Criminal Activity Or Exercising First Amendment-Protected Commercial Speech?, Megan E. Frese

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Post No Bills: Can The Nba Prohibit Its Players From Wearing Tattoo Advertisements?, John Vukelj

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Post No Bills: Can The Nba Prohibit Its Players From Wearing Tattoo Advertisements?, John Vukelj

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Panel I: Defamation In Sports, Gerald Eskenazi, Stephen Henniger, Gary Huckaby, Gary Belsky

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Rolling The Dice: Are Online Gambling Advertisers "Aiding And Abetting" Criminal Activity Or Exercising First Amendment-Protected Commercial Speech?, Megan E. Frese

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Panel I: Defamation In Sports, Gerald Eskenazi, Stephen Henniger, Gary Huckaby, Gary Belsky

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Blogging: A Journal Need Not A Journalist Make, Anne Flanagan

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

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 …

Copyright Under Siege: The First Amendment Front, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

Over the past decade, the law of copyright - traditionally an arcane and obscure specialty - has evolved into an extraordinarily controversial legal arena. To a significant extent, though not exclusively, this has been caused by the emerging clashes between copyright on the one hand and digital technology and the internet on the other. Some see copyright as the aggressor in the copyright wars, guilty of threatening the digital revolution, the internet, information policy, privacy, freedom of speech and the public domain. Much of this assault on copyright is culturally driven by the Internet's champions. Inevitably, this cultural challenge is …

Copy This Essay: How Fair Use Doctrine Harms Free Speech And How Copying Serves It, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay …

Copyright And Free Expression: Analyzing The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh

Faculty Scholarship

Recent attempts to expand the domain of copyright law in different parts of the world have necessitated renewed efforts to evaluate the philosophical justifications that are advocated for its existence as an independent institution. Copyright, conceived of as a proprietary institution, reveals an interesting philosophical interaction with other libertarian interests, most notably the right to free expression. This paper seeks to understand the nature of this interaction and the resulting normative decisions. The paper seeks to analyse copyright law and its recent expansions, specifically from the perspective of the human rights discourse. It looks at the historical origins of modern …

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 …

Filled Milk, Footnote Four & The First Amendment: An Analysis Of The Preferred Position Of Speech After The Carolene Products Decision, Elizabeth Wallmeyer

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Copyright And The First Amendment: After The Wind Done Gone, Joseph M. Beck

Vanderbilt Journal of Entertainment & Technology Law

On March 16, 2001, plaintiff SunTrust Bank filed a complaint in the United States District Court for the Northern District of Georgia against defendant Houghton Mifflin Company, alleging copyright and trademark infringement based on defendant's yet-to-be published novel The Wind Done Gone. On March 23, plaintiff filed a motion for a temporary restraining order and preliminary injunction barring the book's imminent publication. The district court held a hearing on the motion for a temporary restraining order on March 29,2001, and then set down a second hearing for April 18, 2001. On April 20,2001, the district court filed a fifty-one page …

Prior Restraints And Intellectual Property: The Clash Between Intellectual Property And The First Amendment From An Economic Perspective, Andrew Beckerman-Rodau

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Cross-Ownershipís Last Stand? The Federal Communication Commissionís Proposal Concerning The Repeal Of The Newspaper/Broadcast Cross- Ownership Rule , Judith C. Aarons

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Law And Information Platforms, Philip J. Weiser

Publications

No abstract provided.

Panel I: The Conflict Between Commercial Speech And Legislation Governing The Commercialization Of Public Sector Data, Robert Sherman, Paul Schwartz, Deirdre Mulligan, Steven Emmert

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Panel Ii: The Conflict Between Commercial Speech And Legislation Governing The Commercialization Of Private Sector Data, Jennifer Barrett, Evan Hendricks, Solveig Singleton, David Sobel

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.