Law and Tech Research feed

Law and Tech Research feed - Copyright http://law.berkeley.edu 11:12:55 -0400 09:00:00 -0400 What Constitutes a Diligent Search Under Present and Proposed Orphan Work Regimes? http://www.law.berkeley.edu/15031.htm http://www.law.berkeley.edu/15031.htm Tue, 05 Mar 2013 09:00:00 -0400 A Fresh Look at Tests for Nonliteral Copyright Infringement A central puzzle for U.S. copyright law in the 20th and 21st centuries has been how to test for infringement of the exclusive right this law gives authors to control the reproduction of their works in copies. No subtlety of analysis is required when a work is copied word-for-word, line-for-line, or note-for-note or when second comers have made "merely colorable and fraudulent variations." But as Professor Kaplan once observed, "[w]e are in a viscid quandary once we admit that "expression" can consist of anything not close aboard the particular collocation in its sequential order."

This Article offers several strategies for refining infringement analysis so that it becomes less viscid in cases alleging what the Nimmer treatise describes as "nonliteral" similarities between two works. Nonliteral infringement may arise, for instance, when a second comer appropriates detailed plot sequences from another author's drama but uses different dialogue.

Part I discusses the five most frequently utilized tests for infringement of the reproduction right in nonliteral similarity cases. It explains how these tests are similar and different and why each test is flawed in one or more respects. Apart from these flaws, it is problematic that there are so many different tests and so little guidance about which test to use when.

Part II recommends, among other things, that courts tailor infringement tests based on characteristics of the works at issue. The more artistic or fanciful a work is, for example, the more appropriate it is to focus infringement analysis primarily on similarities in the aesthetic appeal of the two works rather than on a dissective analysis of similarities and differences. The more factual or functional a works is, by contrast, the "thinner" is said to be its scope of protection, which suggests that infringement analysis should be more dissective in relation to similarities and differences of these works and less emphasis should be placed on impressions. Courts should also give more guidance about what constitutes protectable expression in copyright works and what aspects, besides abstract ideas, are unprotectable by copyright. ]]> http://www.law.berkeley.edu/15029.htm http://www.law.berkeley.edu/15029.htm Fri, 01 Feb 2013 09:00:00 -0400 Amicus Brief of Law Scholars in Fox v. Dish, No. 12-57048 (9th Cir) The outcome of this case will affect the future of private non-commercial time-shifting of television programs – a fair use right expressly recognized by the Supreme Court almost three decades ago in Sony Corp. of America v. University City Studios, Inc., 464 U.S. 417 (1984). The advance of technology from the videotape recorder (“VTR”), to the videocassette recorder (“VCR”) considered in Sony, to today’s digital video recorder (“DVR”) has not – nor should it – affect that right.

Under Sony, using the Hopper (Dish’s DVR) and PrimeTime Anytime (“PTAT”) is as much a fair use as the original Betamax technology. Both enable private non-commercial time-shifting of legally acquired television programs, and Fox’s attempt to overrule Sony by claiming it has licensed time-shifted programming to internet websites such as Hulu and iTunes should be to no avail, as fair use markets cannot be reclaimed from the public through subsequent licensing practices. To allow this would be to take settled fair uses and turn them into infringements over time at the copyrights holder’s discretion.

Fox continues its attack on fair use by seeking to stop Dish’s creation of quality assurance (“QA”) copies of Fox’s programs, which Dish then uses to access unprotectable facts about the programs – the start and stop times of show segments – and to use those facts to ensure that AutoHop, its commercial skipping program, responds appropriately. Use of such intermediate copies in order to access non-protected information has long been held to be fair. Fox attempts to distinguish these precedents by arguing that such copying is somehow not “transformative” of a message or meaning within the television program itself; but such transformation is not required for the purposes of understanding works or extracting unprotectable facts ]]> http://www.law.berkeley.edu/14914.htm http://www.law.berkeley.edu/14914.htm Thu, 24 Jan 2013 09:00:00 -0400 Brief of Amici Curiae Academic Authors in Support of Defendant-Appellant and Reversal Filed in the Second Circuit Court of Appeals in Support of Defendant-Appellant Google.

Summary of argument: Class certification was improperly granted below because the District Court failed to conduct a rigorous analysis of the adequacy of representation factor, as Rule 23(a)(4) requires. The three individual plaintiffs who claim to be class representatives are not academics and do not share the commitment to broad access to knowledge that predominates among academics. Although the District Court, in rejecting the proposed Google Books settlement last year, recognized that the class representatives and their lawyers had not adequately represented the interests of academic authors when negotiating the proposed settlement, the court brushed aside concerns about adequacy of representation when the case went back into litigation, despite an academic author submission that challenged class certification because of inadequacies in the plaintiffs’ representation of academic author interests. These concerns should have been taken seriously because academic authors make up a substantial proportion of the class that the District Court certified; most of the books that Google scanned from major research library collections were written by academics. Academic authors overall greatly outnumber generalist authors such as the named plaintiffs.

Academic authors desire broad public access to their works such as that which the Google Books project provides. Although the District Court held that the plaintiffs had inadequately represented the interests of academic authors in relation to the proposed settlement, it failed to recognize that pursuit of this litigation would be even more adverse to the interests of academic authors than the proposed settlement was. That settlement would at least have expanded public access to knowledge, whereas this litigation seeks to enjoin the Google Book Search operations and shut down access to works of class members even though academic authors would generally favor greater public access to their works. Because of this, the interests of academic authors cannot be adequately accommodated in this litigation by opting out of the class, as the District Court assumed. Indeed, the only way for the interests of academic authors to be vindicated in this litigation, given the positions that the plaintiffs have taken thus far, is for Google to prevail on its fair use defense and for the named plaintiffs to lose.

For this reason, there is a fundamental conflict between the interests of the named class representatives and the interests of academic authors. Academic authors typically benefit from Google Books, both because it makes their books more accessible to the public than ever before and because they use Google Books in conducting their own research. Google’s fair use defense is more persuasive to academic authors than the plaintiffs’ theory of infringement. The plaintiffs’ request for an injunction to stop Google from making the Book Search corpus available would be harmful to academic author interests.

In short, a “win” in this case for the class representatives would be a “loss” for academic authors. It is precisely this kind of conflict that courts have long recognized should prevent class certification due to inadequate representation. The District Court failed to adequately address this fundamental conflict in its certification order, though it was well aware of the conflict through submissions and objections received from the settlement fairness hearing through to the hearings on the most recent class certification motions. Because of that failure, the order certifying the class should be reversed. ]]> http://www.law.berkeley.edu/15030.htm http://www.law.berkeley.edu/15030.htm Fri, 16 Nov 2012 09:00:00 -0400 Oracle v. Google: Are APIs Copyrightable? http://www.law.berkeley.edu/14568.htm http://www.law.berkeley.edu/14568.htm Mon, 05 Nov 2012 09:00:00 -0400 How Fair Use Can Help Solve the Orphan Works Problem
This Article argues that legislation is not necessary to enable some uses of orphan works by nonprofit libraries and archives. Instead, the fair use doctrine in United States copyright law provides a partial solution. The Article addresses three basic questions: first, does fair use provide a viable basis on which libraries might digitize orphans? Second, does fair use provide a viable basis on which to make these orphans available to patrons or the public? Third, more generally, can or should fair use do any additional work in infringement analysis where the copyrighted work in question is an orphan?

The answer to each of these questions is yes. Nonprofit libraries and archives should be able to rely on fair use in order to digitize orphan works in their collections and to make those works available. In addition, the orphan status of works has special relevance to the fair use analysis. First, the oft-ignored second factor that courts consider in fair use cases (the "nature" of the work) should be given much greater weight in orphan works cases than it is traditionally given. Inquiring into a work’s “orphan” nature, and into other specific attributes of the work, gives useful guidance as to whether incentives to create would be harmed by digitizing the work and making it accessible. Second, the fourth fair use factor (harm to the copyright holder's market) clearly favors the use of orphan works, as there is no market exploitation of the work, and as one party to the putative transaction is simply missing, representing a complete market failure. Finally, regardless of a work’s orphan status, many uses by libraries and archives will fit squarely under the umbrella of uses favored by the first fair use factor (the "purpose of the use"), and their digitization of entire works for preservation and access should often be justified under the third fair use factor (the amount used). As such, fair use represents an important, and for too long unsung, part of the solution to the orphan works problem. ]]> http://www.law.berkeley.edu/14574.htm http://www.law.berkeley.edu/14574.htm Mon, 18 Jun 2012 09:00:00 -0400 The Cost of Price: Why and How to Get Beyond Intellectual Property Internalism
We see, as I argue, that using price to guide scientific and cultural production — which is to say, using IP — may have costs not only for efficiency, but also for distributive justice and informational privacy. The IP approach is in tension with the value of distributive justice because reliance upon price may yield not only unjust distribution of existing information resources but also unjust production of future information resources. The IP approach is in tension with the value of information privacy because relying on price to generate information facilitates the desire, the demand, and perhaps the capacity for price discrimination. That, in turn, generates an impulse for the extensive collection of personal information. Both government procurement and commons-based production plausibly offer more promise than does IP in both distributive justice and privacy terms, and they may be no less efficient than IP. Giving full scope to all three of these values thus requires us to telescope out from the internalism that characterizes the field, and to countenance a broader role for commons-based production and government procurement. In the field of IP, I conclude, we should pay less attention to IP and more to the alternatives. ]]> http://www.law.berkeley.edu/14562.htm http://www.law.berkeley.edu/14562.htm Fri, 11 May 2012 09:00:00 -0400 Design for Symbiosis: Promoting More Harmonious Paths for Technological Innovators and Expressive Creators in the Internet Age http://www.law.berkeley.edu/12765.htm http://www.law.berkeley.edu/12765.htm Tue, 31 Jan 2012 09:00:00 -0400 Does Copyright Protection Under the EU Software Directive Extend to Computer Program Behaviour, Languages and Interfaces? http://www.law.berkeley.edu/12769.htm http://www.law.berkeley.edu/12769.htm Mon, 12 Dec 2011 09:00:00 -0400 Infringement Conflation
This essay critically analyzes Professor Tehranian’s selective account of the “infringement nation.” While jammed with historical tidbits, intriguing anecdotes, and illustrations of over-enforcement by copyright owners, Infringement Nation barely mentions the effects of unauthorized distribution of copyrighted works on composers, recording artists, film producers, screenwriters, novelists, or journalists. What little Infringement Nation has to say about Internet piracy centers on the risk of crushing liability that copyright law imposes on file-sharers. This distorted infringement “census” leads to misdirected policy recommendations.

After exposing the limitations of Infringement Nation’s lens, this essay fills in important missing regions from the census – the professional content industries that have been struggling to deal with rampant unauthorized distribution of their works. With this fuller picture of the infringement landscape in mind, the essay closes by exploring the challenge of channeling consumers back into the content marketplace. ]]> http://www.law.berkeley.edu/12074.htm http://www.law.berkeley.edu/12074.htm Thu, 27 Oct 2011 09:00:00 -0400 An Epitaph for Traditional Copyright Protection of Network Features of Computer Software http://www.law.berkeley.edu/12078.htm http://www.law.berkeley.edu/12078.htm Sun, 16 Oct 2011 09:00:00 -0400 The Challenges of Reforming Intellectual Property Protection for Computer Software http://www.law.berkeley.edu/12076.htm http://www.law.berkeley.edu/12076.htm Sun, 16 Oct 2011 09:00:00 -0400 An Analysis of the Scope of Copyright Protection for Application Programs http://www.law.berkeley.edu/12077.htm http://www.law.berkeley.edu/12077.htm Sun, 16 Oct 2011 09:00:00 -0400 Tailoring Legal Protection for Computer Software http://www.law.berkeley.edu/12075.htm http://www.law.berkeley.edu/12075.htm Sun, 16 Oct 2011 09:00:00 -0400 Copyright Exhaustion and the Personal Use Dilemma
This Article proposes a new explanation for the favored status of certain personal uses. Drawing on the principle of copyright exhaustion - the notion that once the copyright holder parts with a particular copy of a work, its power to control the use and disposition of that copy is constrained - we argue that many personal uses are rendered lawful by virtue of the simple fact of copy ownership. Owning copies entitles consumers to make certain uses of those copies and the works embodied in them, even in ways that may appear inconsistent with the rights of copyright holders. Under exhaustion, any copy owner has the right to reproduce, modify, and distribute her copy in order to fully realize its value qua copy.

In a variety of personal use cases, courts have been swayed by arguments that highlight the defendant’s purchase or rightful ownership of a copy. But the prevailing approaches to personal use take copy ownership into account inconsistently and awkwardly, forcing courts to shoehorn their intuitions about ownership into doctrines designed to address very different questions. In contrast, exhaustion places copy ownership at the center of the digital personal use debate. And it helps us reconcile our intuitions about the proper scope of consumer control over copies they own with our formal legal articulations of the scope of infringement liability. ]]> http://www.law.berkeley.edu/12079.htm http://www.law.berkeley.edu/12079.htm Sat, 10 Sep 2011 09:00:00 -0400 The Uneasy Case for Software Copyrights Revisited http://www.law.berkeley.edu/14567.htm http://www.law.berkeley.edu/14567.htm Wed, 07 Sep 2011 09:00:00 -0400 The Mixed Heritage of Federal Intellectual Property Law and Ramifications for Statutory Interpretation http://www.law.berkeley.edu/11599.htm http://www.law.berkeley.edu/11599.htm Wed, 27 Jul 2011 09:00:00 -0400 The Copyright Principles Project: Directions for Reform
The report first articulates principles of a well-functioning copyright law, then analyzes respects in which existing copyright law does or does not comport with these principles. The report then explores twenty-five possible reforms to U.S. copyright law that would bring it into greater conformity with the principles. Among the recommendations: reinvigorate copyright registration; modernize the Copyright Office; limit orphan works liability; and develop reasonable and consistent statutory guidelines for damage awards. Some of the changes can be brought about only by legislative action, while others can be accomplished through common law evolution.

While there is no one “silver bullet” that can relieve all the difficulties, maintain or renew public confidence in copyright, and bring calm to copyright industries, it is hoped that the CPP report will spur further discussion and movement, grounded in principle, to adapt the law and achieve a fair balance of interests among all stakeholders in the copyright sphere. ]]> http://www.law.berkeley.edu/11202.htm http://www.law.berkeley.edu/11202.htm Fri, 27 May 2011 09:00:00 -0400 Legislative Alternatives to the Google Book Settlement http://www.law.berkeley.edu/11201.htm http://www.law.berkeley.edu/11201.htm Mon, 25 Apr 2011 09:00:00 -0400 Access to Knowledge: A Conceptual Genealogy http://www.law.berkeley.edu/11600.htm http://www.law.berkeley.edu/11600.htm Sat, 05 Feb 2011 09:00:00 -0400 In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.

]]> http://www.law.berkeley.edu/9913.htm http://www.law.berkeley.edu/9913.htm Tue, 14 Dec 2010 09:00:00 -0400 Demystifying Fair Use: the Gift of the Center for Social Media Statements of Best Practices http://www.law.berkeley.edu/12881.htm http://www.law.berkeley.edu/12881.htm Mon, 25 Oct 2010 09:00:00 -0400 The Google Book Settlement as Copyright Reform This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.

]]> http://www.law.berkeley.edu/10039.htm http://www.law.berkeley.edu/10039.htm Tue, 28 Sep 2010 09:00:00 -0400 Sound Recordings, Works for Hire, and the Termination-of-Transfers Time Bomb http://www.law.berkeley.edu/10083.htm http://www.law.berkeley.edu/10083.htm Mon, 02 Aug 2010 09:00:00 -0400 Governance of Intellectual Resources and Disintegration of Intellectual Property in the Digital Age http://www.law.berkeley.edu/10084.htm http://www.law.berkeley.edu/10084.htm Sun, 30 May 2010 09:00:00 -0400 The Past, Present and Future of Software Copyright Interoperability Rules in the European Union and United States http://www.law.berkeley.edu/14565.htm http://www.law.berkeley.edu/14565.htm Fri, 02 Apr 2010 09:00:00 -0400 Knowledge Accessibility and Preservation Policy for the Digital Age The importance of these issues, and the fact that Congress did not foresee the possibilities for a universally accessible, comprehensive archive when it last considered the role of libraries, call for Congress to consider the larger public policy ramifications of digital archiving and search technology. The goals of collecting, preserving, and cataloging human knowledge predate copyright laws. As copyright law developed, it embraced these concerns. Drawing upon this history, this article examines the democratic, cultural, and economic dimensions of developing a comprehensive, searchable database of books and other library materials. It then analyzes the spectrum of institutional alternatives for promoting the goals of preserving and providing access to knowledge while safeguarding copyright law's incentives to create. The article recommends that Congress effectuate these goals through a carefully crafted package of safe harbors, measured liability exposure for technology vulnerable to piracy, and public involvement in the development and management of a searchable digital repository of copyrighted works. For the longer term, the Article recommends that Congress update the deposit requirement to provide for digital deposit of written works and plan for the development of a public comprehensive searchable archive. In the event that legislation is not forthcoming before the Google Book Search Project is litigated, the article shows that copyright law's long-standing access and preservation goals provide an important context for courts applying copyright law's fair use doctrine to digital archiving activities.

]]> http://www.law.berkeley.edu/10334.htm http://www.law.berkeley.edu/10334.htm Wed, 27 Jan 2010 09:00:00 -0400 Statutory Damages in Copyright Law: A Remedy in Need of Reform This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable. ]]> http://www.law.berkeley.edu/10400.htm http://www.law.berkeley.edu/10400.htm Tue, 12 Jan 2010 09:00:00 -0400 Pooh-Poohing Copyright Law’s 'Inalienable' Termination Rights http://www.law.berkeley.edu/10086.htm http://www.law.berkeley.edu/10086.htm Tue, 29 Dec 2009 09:00:00 -0400 Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases While a presumption of irreparable harm is inappropriate in all copyright cases, it is particularly troublesome in cases involving transformative uses of existing works, such as parodies and remixes and mashups, because free expression and free speech interests of creative users are at stake and transformative uses cases often raise plausible non-infringement defenses. Indeed, if any presumption about harm is appropriate in transformative use cases, it should probably run in favor of irreparability of harm to the defendants’ free expression and speech interests under First Amendment case law which treats preliminary injunctions as presumptively unconstitutional prior restraints on speech.

]]> http://www.law.berkeley.edu/10413.htm http://www.law.berkeley.edu/10413.htm Thu, 29 Oct 2009 09:00:00 -0400 Legal Realism in Action: Indirect Copyright Liability's Continuing Tort Framework and Sony's De Facto Demise http://www.law.berkeley.edu/10339.htm http://www.law.berkeley.edu/10339.htm Tue, 06 Oct 2009 09:00:00 -0400 Unwinding Sony This article scrutinizes this critical logical premise. Part I exhaustively reviews the litigation and correspondence of the justices to understand why the Court paid so little attention to the legislative materials and so much to the patent law. It finds that gaps in the information provided to the Court, in conjunction with the justices' lack of familiarity with copyright law generally and the Copyright Act of 1976 in particular, led the Court astray. Part II tests the "historic kinship" premise, finding that it cannot withstand scrutiny. Had the Court traced the origins of copyright and patent back to their source, it would have seen that they both derive from a common wellspring: tort principles. Concerns about patent misuse and improper leveraging of monopoly power led the courts, and later Congress, to carve out an express safe harbor in patent law for those selling "staple articles of commerce" - products suitable for substantial non-infringing uses. Part III demonstrates that the 1976 Copyright Act envisioned that courts would continue to use the traditional tort wellspring, informed by the distinctive challenges of copyright enforcement. This would have brought the reasonable alternative design framework of products liability law into play. The article shows that this approach would almost certainly have resulted in the same outcome that the Sony Court reached, but of critical importance, it would have provided a more sound and dynamic jurisprudential framework for calibrating liability as new technologies develop. Part IV examines Sony's legacy, showing that subsequent legislative activity, court decisions, and the marketplace reflect a practical reality that lies closer to the reasonable alternative design standard than a broad "staple article of commerce" safe harbor. In reality, Sony's "staple article of commerce" doctrine has proven largely symbolic and unworkable, as Congress, the courts, and businesses in the marketplace have sought to promote product innovation without unduly jeopardizing copyright protection. The failure to recognize that reality, however, breeds doctrinal confusion, distorts case law evolution, and stultifies the larger policy debate over copyright protection in the digital age.

]]> http://www.law.berkeley.edu/10340.htm http://www.law.berkeley.edu/10340.htm Tue, 06 Oct 2009 09:00:00 -0400 Bankruptcy Treatment of Intellectual Property Assets: An Economic Analysis http://www.law.berkeley.edu/10330.htm http://www.law.berkeley.edu/10330.htm Tue, 06 Oct 2009 09:00:00 -0400 Envisioning Copyright Law's Digital Future http://www.law.berkeley.edu/10329.htm http://www.law.berkeley.edu/10329.htm Tue, 06 Oct 2009 09:00:00 -0400 Author Autonomy and Atomism in Copyright Law When individual creators claim, retain, and manage their own copyrights, they exercise a degree of authorial autonomy that befits the Internet Age. But they simultaneously contribute to a troubling phenomenon I call “copyright atomism” - the proliferation, distribution, and fragmentation of the exclusive rights bestowed by copyright law. An atomistic copyright system is crowded with protected works and rights, owned by rights-holders who are numerous and far-flung. This situation can raise information and transaction costs for participants in the creative marketplace, hampering future generations of creativity and thus undermining the very purpose of copyright: to encourage the creation and dissemination of works of authorship for the ultimate benefit of the public.

This article introduces and articulates the copyright atomism concept. It then places atomism in historical and doctrinal context by documenting copyright law’s encounters with proliferated, distributed, and fragmented copyright ownership from medieval monasteries to the Internet age. This history demonstrates the enduring relevance of anxiety about atomism within copyright policy, highlights countervailing concerns, and provides a framework for thinking about how to alleviate the unfortunate contemporary consequences of atomism - and how not to.

]]> http://www.law.berkeley.edu/10079.htm http://www.law.berkeley.edu/10079.htm Tue, 11 Aug 2009 09:00:00 -0400 Indirect Copyright Liability and Technological Innovation http://www.law.berkeley.edu/10341.htm http://www.law.berkeley.edu/10341.htm Tue, 09 Jun 2009 09:00:00 -0400 Legally Speaking: The Dead Souls of the Google Booksearch Settlement http://www.law.berkeley.edu/10404.htm http://www.law.berkeley.edu/10404.htm Thu, 16 Apr 2009 09:00:00 -0400 Judicial Resistance to Copyright Law's Inalienable Right to Terminate Transfers http://www.law.berkeley.edu/10345.htm http://www.law.berkeley.edu/10345.htm Tue, 10 Mar 2009 09:00:00 -0400 Unbundling Fair Uses The wide array of fair use cases has led many commentators to complain that fair use is unpredictable. This Article argues that fair use law is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases tend to fall into common patterns, or what this Article will call policy-relevant clusters. The policies underlie modern fair use law include promoting freedom of speech and of expression, the ongoing progress of authorship, learning, access to information, truth-telling or truth-seeking, competition, technological innovation, and privacy and autonomy interests of users. If one analyzes putative fair uses in light of cases previously decided in the same policy cluster, it is generally possible to predict whether a use is likely to be fair or unfair. Policy-relevant clustering is not a substitute for appropriate consideration of the statutory fair use factors, but provides another dimension to fair use analysis that complements four-factor analysis and sharpens awareness about how the statutory factors, sometimes supplemented by other factors, should be analyzed in particular contexts.

Parts I through V mainly provide a positive account of how fair use has been adjudicated in a variety of contexts and suggestions about factors that should be given greater or lesser weight in certain fair use policy clusters. Its articulation of the policy-relevant clusters into which the fair use cases typically fall should not, however, be understood as attempting to limn the outer bounds of fair use or to foreclose the development of new policy-relevant clusters. Part VI offers a more normative account of fair use as an integral and essential part of U.S. copyright law that can, in fact, encompass the wide range of fair uses discussed in the Article. It also recaps the key lessons from this Article's qualitative assessment of the fair use case law and points to some encouraging trends in recent cases.

]]> http://www.law.berkeley.edu/10403.htm http://www.law.berkeley.edu/10403.htm Thu, 08 Jan 2009 09:00:00 -0400 Should Copyright Owners Have to Give Notice about Their Use of Technical Protection Measures? http://www.law.berkeley.edu/10046.htm http://www.law.berkeley.edu/10046.htm Thu, 20 Dec 2007 09:00:00 -0400 A Reverse Notice and Takedown Regime to Enable Public Interest Uses of Technically Protected Copyrighted Works We believe that practical judicial and administrative measures can and should be devised to implement the spirit of the WCT in both the U.S. and EU without reopening the contentious debates that engulfed the process leading up to enactment of the DMCA and the EU Copyright Directive. To this end, we propose adoption of a "reverse notice and takedown" procedure to help achieve some of the balance in anti-circumvention rules that the WCT endorsed, but which implementing legislation has thus far failed to deliver. Under this regime, users would be able to give copyright owners notice of their desire to make public interest uses of technically protected copyrighted works, and rights holders would have the responsibility to take down the TPMs or otherwise enable these lawful uses.

A reverse notice and takedown regime would achieve for the anti-circumvention rules a comparable symmetry with the balance embedded in the ISP safe harbor rules. It would also effectuate the nascent, but not fully realized, legislative intent to permit public interest uses of technically protected digital content, while at the same time protecting copyright owners against circumvention of TPMs that would facilitate or lead to massive infringements. In the U.S., the most likely way to achieve this goal is through judicial interpretation of the anti-circumvention rules through case by case adjudication. In the EU, by contrast, member states could implement a reverse notice and takedown regime in the course of fulfilling their obligations under Article 6(4) of the Copyright Directive, which requires them to ensure that users of technically protected works can exercise certain public interest exceptions. Nations that have yet to implement the WCT may find our proposed reverse notice and takedown regime provides a far more balanced way to comply with the treaty than the approach being promoted by U.S. trade negotiators

]]> http://www.law.berkeley.edu/10405.htm http://www.law.berkeley.edu/10405.htm Mon, 20 Aug 2007 09:00:00 -0400 Preliminary Thoughts on Copyright Reform This article offers the author's preliminary thoughts about why copyright reform is needed, why it will be difficult to undertake, and why notwithstanding these difficulties, it may nonetheless be worth doing. It offers suggestions about how one might go about trimming the statute to a more managemable length, articulating more simply its core normative purposes, and spinning certain situation-specific provisions off into a rulemaking process.

Thirty years after enactment of the '76 Act, with the benefit of considerable experience with computer and other advanced technologies and the rise of amateur creators, it may finally be possible to think through in a more comprehensive way how to adapt copyright to digital networked environments as well as how to maintain its integrity as to existing industry products and services that do not exist outside of the digital realm.

]]> http://www.law.berkeley.edu/10401.htm http://www.law.berkeley.edu/10401.htm Thu, 26 Jul 2007 09:00:00 -0400 Why Copyright Law Excludes Systems and Processes from the Scope of its Protection The article demonstrates that Congress intended for section 102(b) of the Copyright Act of 1976 to codify the Baker exclusion of procedures, processes, systems, and methods of operation as well as the pre-Baker exclusion of high level abstractions such as ideas, concepts, and principles. The article contests the interpretation given to Baker by Professor Melville B. Nimmer in his famous treatise, and shows that the Supreme Court's decision in Mazer v. Stein is more consistent with the traditional understanding of Baker than with the Nimmer interpretation. Although the initial impetus to codify the Baker exclusion of systems and processes arose from a concern about the possible overprotection of computer programs by copyright, early software copyright caselaw mistakenly followed the Nimmer treatise's interpretation of section 102(b) as though it codified only the distinction between abstract ideas and expressions. Over time, courts came to perceive that Baker and section 102(b) had broader implications, requiring that functional elements of programs, such as processes or systems embodied in them, should be outside of copyright's scope.

The final section of the article shows that although courts in some cases, such as those involving parts numbering systems, have managed to reach sound results by invoking other copyright doctrines (such as lack of originality), courts should have engaged in straightforward applications of section 102(b)'s exclusion of systems, as some more recent cases have done. The mistakenly narrow interpretation given to Baker by the Nimmer treatise has also led some courts to misconstrue section 102(b) by protecting coding systems and yoga sequences when these elements should be beyond the scope of copyright protection. The article calls for renewed attention to the eight words of exclusion in section 102(b) and to the policies that underlie those exclusions.

]]> http://www.law.berkeley.edu/10406.htm http://www.law.berkeley.edu/10406.htm Wed, 25 Jul 2007 09:00:00 -0400 The Proper Scope of the Copyright and Patent Power In this Essay, we approach one part of this problem at the source. We argue that there are limits on Congress's power to create and extend intellectual property interests. Such limits are "internal" in the sense that they are the result of the very same constitutional provision giving rise to Congress's power in the first place, the Copyright and Patent Clause of the Constitution which grants the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." We argue that the language of the Copyright and Patent Clause may restrict some of Congress's more far-reaching efforts at promoting intellectual property in recent years, particularly in passing ad hoc extensions of copyrights and patents for the benefit of individual companies. We then suggest some approaches that courts might take in evaluating, and perhaps striking down, congressional actions in this area.

]]> http://www.law.berkeley.edu/10382.htm http://www.law.berkeley.edu/10382.htm Tue, 22 May 2007 09:00:00 -0400 Locke Remixed http://www.law.berkeley.edu/10386.htm http://www.law.berkeley.edu/10386.htm Thu, 15 Feb 2007 09:00:00 -0400 The Generativity of Sony V. Universal: The Intellectual Legacy of Justice Stevens While Sony is known mainly for the safe harbor from copyright challenges that it established for technologies suitable for substantial non-infringing uses, this article will discuss the generativity of the Sony decision, that is, the impact the decision has had in a range of cases presenting very different facts and legal issues than the Court faced in Sony. Software reverse engineers, add-on software developers, Internet service and access providers, and Internet search engine firms have all relied on Sony in successfully defending against direct and indirect claims of copyright infringement. Sony is likely to continue to be significant in mediating disputes between copyright industries and creative information technology developers and users of information technology.

The article asserts that Sony's generativity is due, in part, to the limited monopoly framework for analyzing copyright claims articulated by Justice Stevens in Sony, which contrasts starkly with the proprietarian framework used in Justice Blackmun's dissent.

]]> http://www.law.berkeley.edu/10412.htm http://www.law.berkeley.edu/10412.htm Sat, 19 Aug 2006 09:00:00 -0400 Questioning Copyright in Standards This article will consider whether standards such as these, especially those whose use is mandated by government rules, should be eligible for copyright protection as a matter of U.S. copyright law. Part I reviews several lawsuits that have challenged copyrights in numbering systems devised to enable efficient communication and will argue that the decisions upholding copyrights in the AMA and ADA codes were incorrectly decided in light of past and subsequent caselaw, the statutory exclusion of systems from copyright, and various policy considerations. Part II considers copyright caselaw and policies that have persuaded courts to exclude standards from the scope of copyright protection under the scenes a faire and merger of idea and expression doctrines. It also considers whether government mandates to use certain standards should affect the ability to claim copyright in those standards. Part III assesses whether SSOs need copyright incentives to develop and maintain industry standards they promulgate and whether arguments based on incentives should prevail over other considerations. It will also identify some competition and other public policy concerns about allowing private entities to own standards, particularly those whose use is required by law.

]]> http://www.law.berkeley.edu/10411.htm http://www.law.berkeley.edu/10411.htm Sat, 19 Aug 2006 09:00:00 -0400 Digital Rights Management and the Pricing of Digital Products http://www.law.berkeley.edu/10314.htm http://www.law.berkeley.edu/10314.htm Wed, 09 Aug 2006 09:00:00 -0400 Should Economics Play a Role in Copyright Law and Policy? http://www.law.berkeley.edu/10408.htm http://www.law.berkeley.edu/10408.htm Thu, 04 Aug 2005 09:00:00 -0400 Challenges in Mapping the Public Domain The essay also considers also several criticisms that might be levied at the author's first effort at public domain mapmaking, including its U.S.-centricity. It shows how US-centric terminology can be purged from the map so that the map can become useful in an emerging international conversation about the public domain. The essay discusses a second problem, namely, that the contents of the public domain vary from nation to nation. An accurate international meta-map of its contents may be difficult or impossible to design, and yet the essay suggests how the meta-map might be constructed. A third problem the essay considers is that there is no universally accepted definition of the term "public domain." There may, in fact, be many definitions of the public domain, not just one. The essay demonstrates several mappings to depict different definitions. Fourth, the boundaries of the public domain may shift over time, as laws and policies affecting its contours change. To be accurate, a map of the public domain will need to be redrawn every time a significant legal change occurs. Yet this is also true for maps generally, and is not an insurmountable obstacle. Fifth, there are numerous murky areas surrounding the public domain that a conscientious map-maker may find difficult to depict. The essay discusses the contents of these murky areas and why a public domain map ought to have a sector for murky areas. Sixth, the term "map" draws upon real property metaphors that are already too prevalent in intellectual property debates. If the goal is to enrich public policy debates about the public domain, perhaps reinforcing the "property" metaphor is unwise. Yet, the essay concludes that this objection does not outweigh benefits that may come from such a map. Seventh, the public domain map arguably distorts the size and centrality of the public domain and contiguous IPRs. And yet, maps, by their nature, distort the phenomena they depict in order to highlight aspects of the phenomena that might otherwise be obscured.

The essay explains why, notwithstanding these reservations, I persist in believing that mapping the public domain is a worthy endeavor and something akin to the maps of the public domain provided in the essay are useful policy tools. If one aspires to preserve the public domain through an international treaty, to take one example, one will need a rich conception of this domain, and a map may be a useful tool in developing consensus about protecting the public domain through a treaty. Maps are also useful in articulating various values that different parts of the public domain serve and why preserving the public domain is in the public interest.

]]> http://www.law.berkeley.edu/10418.htm http://www.law.berkeley.edu/10418.htm Tue, 19 Jul 2005 09:00:00 -0400 Intellectual Property http://www.law.berkeley.edu/10327.htm http://www.law.berkeley.edu/10327.htm Fri, 15 Jul 2005 09:00:00 -0400 The Story of Baker v. Selden: Sharpening the Distinction Between Authorship and Invention The most important lesson of this Story concerns the legal principle the Court was trying to promulgate. Although Baker v. Selden is widely cited as the genesis of the "idea/expression" distinction in copyright law, the Story shows that this distinction predated Baker. Nor is Baker the genesis of the "merger" doctrine (which holds that if an idea can only be expressed in one or a small number of ways, copyright law will not protect the expression because it has "merged" with the idea). The main objective of the Supreme Court's decision was to sharpen the distinction between authorship and invention. The complaint spoke of Selden as the author and inventor of several books and of a bookkeeping system. His lawyer kept speaking about its novelty in the state of the art. Selden's widow claimed exclusive rights not only to stop Baker from publishing competing books, but also to collect damages from all of Baker's customers for their use of the infringing system. That Selden had sought, but apparently not obtained, a patent on his bookkeeping system seems to have affected the Court.

To clarify the proper roles of patent and copyright in protecting the fruits of intellectual labor, the Baker opinion introduced a new framework for analyzing copyright claims. It directed courts to consider whether the defendant had copied the author's description, explanation, illustration, or depiction of a useful art (such as a bookkeeping system) or ideas, or had only copied the useful art or ideas themselves. In the absence of a patent, the useful art depicted in a work, along with its ideas, could be used and copied by anyone, even in directly competing works. Any necessary incidents to implementing the art (e.g., blank forms illustrating use of the system) could likewise be used and copied by second comers without fear of copyright liability.

The Baker opinion's rich analysis of the roles of copyright and patent in protecting intellectual creations has, over the past 125 years, spawned at least eight significant copyright doctrines, including four codified in the Copyright Act of 1976, as well as a few enduring controversies.

]]> http://www.law.berkeley.edu/10423.htm http://www.law.berkeley.edu/10423.htm Thu, 16 Jun 2005 09:00:00 -0400 Indirect Copyright Liability: A Re-examination of Sony's Staple Article of Commerce Doctrine The article re-examines Sony's jurisprudential foundation. In that case, the Court transplanted an express categorical limitation on indirect liability from the Patent Act into the Copyright Act, notwithstanding that Congress had only recently reformed the Copyright Act without including any such limitation on liability among the many express exemptions, limitations, and immunities contained in the statute. Furthermore, Congress reaffirmed the continued applicability and evolution of infringement standards through case-by-case adjudication. The Sony decision failed to examine the important differences between patent and copyright protection. Whereas patent law seeks to promote technological innovation and evolved a staple article of commerce doctrine primarily out of concern for unduly expanding patent scope, copyright law seeks to promote cultural and social progress, manifesting a more cautious stance toward technological dissemination, particularly where a technology threatens widespread piracy of expressive works. Products that encourage patent infringement do not threaten harm beyond a single patent or cluster of patents, whereas the technology at issue in the Grokster case threatens systemic harm to the copyright system by promoting rampant unauthorized distribution of all manner of works of authorship. Therefore, the uncritical transplantation of Patent Act's immunity for dual-use technologies into the Copyright Act poses grave dangers that were beyond the Supreme Court's view when it decided the Sony case in 1984, before the digital revolution took hold. Furthermore, amendments to the Copyright Act since the Sony decision demonstrate that Congress does not believe that dual-use technology - i.e., technology that is capable of both infringing and substantial non-infringing uses - should be treated as inviolate under copyright law. Rather, Congress has shown that it sees a need to balance the efficacy of the copyright system for promoting creative expression against social interests in technological innovation and consumer autonomy.

]]> http://www.law.berkeley.edu/10336.htm http://www.law.berkeley.edu/10336.htm Fri, 11 Mar 2005 09:00:00 -0400 The Constitutional Law of Intellectual Property After Eldred v. Ashcroft Although Dastar v. Fox mainly presents a question of statutory interpretation about whether publishers of a derivative work of a public domain work must credit the original author of the work or face liability for reverse passing off, the case was argued in part on constitutional grounds. Those engaged in the debate about whether the public domain is a constitutionally significant interest will construe the Court's decision in constitutional terms. The result in Dastar may also have implications for constitutional challenges to legislation granting copyright in works that were for many years in the public domain due to failure to comply with U.S. formalities for copyright protection. The Court has repeatedly insisted that Congress cannot create intellectual property rights in public domain works in constitutionally inspired rulings. Eldred may have decided that Congress could extend the terms of existing copyrights, but it did not deal with the resurrection of dead copyrights, as the new cases do.

Also much disputed is the constitutionality of database protection legislation proposed in Congress akin to the new intellectual property regime created in the EU that confers on publishers an exclusive right to control extraction and reuse of data from databases. The Court in Feist insisted that the U.S. Constitution required a creativity-based standard for copyright (and presumably for copyright-like) protection of databases. While the Supreme Court did not accept the extension of the principles of Feist for which Eldred argued, it did not abjure Feist. Hence, EU-style database protection may be unconstitutional. Eldred also suggests that higher First Amendment scrutiny may be required when assessing changes to the traditional contours of intellectual property law, such as EU-style database protection and the DMCA anti-circumvention rules, calling into question the Second Circuit's decision in Universal City Studios v. Corley. Even if such laws can surmount facial challenges to their constitutionality, the article gives examples of "as applied" challenges likely to be successful.

]]> http://www.law.berkeley.edu/10422.htm http://www.law.berkeley.edu/10422.htm Wed, 16 Jul 2003 09:00:00 -0400 Pre-existing Confusion in Copyright's Work-for-Hire Doctrine This article examines a potentially significant and heretofore unrecognized conundrum of the 1976 Copyright Act relating to the "contribution to a collective work" category. Congress defined "collective works" as comprised of "preexisting materials." Yet the work made for hire provision contemplates "contributions to collective works" being specially ordered or commissioned. How is it possible for a publisher or record label to specially order or commission contributions that already exist? The authors' journey into the complex evolution of the 1976 Copyright Act reveals that Congress did not intend that "contributions to collective works" preexist their commissioning, even though the inartful drafting of some of the Section 101 definitions suggest otherwise. For purposes of applying the work for hire doctrine, courts should either ignore the use of the term "preexisting" in the definition of "collective work," or interpret the term "contribution to collective work" to include "contribution to yet-to-be-assembled collective work" in the definition of "work made for hire." The article also elucidates the legislative history underlying the right to terminate transfers, a right which will have justiciable implications beginning in 2003.

]]> http://www.law.berkeley.edu/10331.htm http://www.law.berkeley.edu/10331.htm Tue, 17 Dec 2002 09:00:00 -0400 Economic and Constitutional Influences on Copyright Law in the United States http://www.law.berkeley.edu/10407.htm http://www.law.berkeley.edu/10407.htm Fri, 20 Oct 2000 09:00:00 -0400