Author(s): Pamela Samuelson Year: 2009 Abstract: Fair use has been invoked as a defense to claims of copyright infringement in a wide array of cases over the past thirty years, as when someone has drawn expression from an earlier work in order to parody it, quoted from an earlier work in preparing a new work […]
Unbundling Fair Uses
Legally Speaking: The Dead Souls of the Google Booksearch Settlement
Author(s): Pamela Samuelson Year: 2009 Abstract: This short article argues that the proposed settlement of the Authors Guild v. Google lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in […]
A Reverse Notice and Takedown Regime to Enable Public Interest Uses of Technically Protected Copyrighted Works
Author(s): Pamela Samuelson Year: 2007 Abstract: The WIPO Copyright Treaty (WCT) recognized the need to maintain a balance between the rights of authors and the larger public interest in updating copyright law in light of advances in information and communications technologies. But the translation of this balance into the domestic laws of the United States […]
Why Copyright Law Excludes Systems and Processes from the Scope of its Protection
Author(s): Pamela Samuelson Year: 2007 Abstract: Contrary to common perceptions, Baker v. Selden is neither the origin of the idea/expression distinction of U.S. copyright law, nor of the merger doctrine (which holds that if an idea is capable of expression in only one or a small number of ways, the work’s idea and expression will […]
Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases
Author(s): Pamela Samuelson Year: 2009 Abstract: It has become lamentably common for courts to issue preliminary injunctions in copyright cases once rights holders have shown a reasonable likelihood of success on the merits without going on to require them to prove that they will suffer irreparable harm unless the injunction issues. Harm is too often […]
Privacy as Intellectual Property?
Author(s): Pamela Samuelson Year: 2000 Abstract: Some economists and privacy advocates have proposed giving individuals property rights in their personal data to promote information privacy in cyberspace. A property rights approach would allow individuals to negotiate with firms about the uses to which they are willing to have personal data put and would force businesses […]
Legislative Alternatives to the Google Book Settlement
Author(s): Pamela Samuelson Year: 2011 Abstract: In the aftermath of Judge Chin’s rejection of the proposed Google Book settlement, it is time to consider legislative alternatives. This article explores a number of component parts of a legislative package that might accomplish many of the good things that the proposed settlement promised without the downsides that […]
The Mixed Heritage of Federal Intellectual Property Law and Ramifications for Statutory Interpretation
Author(s): Peter S. Menell Year: 2011 Abstract: This article explores the unique and complex mix of statutory provisions and common law jurisprudence that characterizes federal intellectual property law. Patent and copyright law trace their roots back to terse 1790 enactments on which the judiciary embroidered critical requirements and limitations. In line with common law traditions […]
A Fresh Look at Tests for Nonliteral Copyright Infringement
Author(s): Pamela Samuelson Year: 2013 Abstract: 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, […]
What Constitutes a Diligent Search Under Present and Proposed Orphan Work Regimes?
Author(s): Jennifer Urban Year: 2013 Abstract: Numerous legal regimes or proposals have been devised to address the problem of whether or under what circumstances in-copyright works can be made available if the works are “orphans,” because their rights holders are unknown or cannot be found. A common feature is a requirement that a prospective user […]