Author(s): Molly S. Van Houweling Year: 2009 Abstract: In the age of electronic commerce, consumers routinely acquire intangible products without engaging in any direct human interaction. These products – computer programs, digital music, etc. – often arrive bearing terms that purport to limit the sticks in the consumers’ bundles of rights in ways that depart […]
The New Servitudes
Still Looking for Lost Profits: The Case of Horizontal Competition
Author(s): Suzanne Scotchmer Year: 2006 Abstract: When infringement of a patent dissipates profit relative to the licensing agreement that would otherwise occur, damages under the lost-profit rule deter infringement, and otherwise not. We develop this point in a general model and give two examples. However, joint profit might not be dissipated by infringement. An important […]
Intellectual Property and the Property Rights Movement
Author(s): Peter S. Menell Year: 2007 Abstract: The article examines the recent efforts of the Property Rights Movement to expand the “property tent” to emcompass intellectual property. In eBay v. MercExchange, a case addressing the standard for injunctive relief in patent cases, some property rights advocates argued that the Supreme Court should look to trespass […]
Judicial Resistance to Copyright Law’s Inalienable Right to Terminate Transfers
Author(s): Peter S. Menell Year: 2009 Abstract: For a century, Congress has sought to protect authors and their families by allowing them to grant their copyrights for exploitation and then, decades later, recapture those same rights. After judicial interpretation of the 1909 Act frustrated this intent, Congress spoke unambiguously in 1976: Termination of the grant […]
The Proper Scope of the Copyright and Patent Power
Author(s): Robert P. Merges Year: 2007 Abstract: As an increasing amount of society’s wealth is tied up in intangible assets, strong, clear property rights can make a good deal of sense. But it is also possible to have too much of a good thing, and our society is in danger of reaching that point. Recent […]
Preliminary Thoughts on Copyright Reform
Author(s): Pamela Samuelson Year: 2007 Abstract: The Copyright Act of 1976 is far too long, complex, and largely incomprehensible to non-copyright professionals. It is also the work product of pre-computer technology era. This law also lacks normative heft. That is, it does not embody a clear vision about what its normative purposes are. This article […]
Unbundling Fair Uses
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 […]
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 […]