Intellectual Property Issues

IP Viewpoints

Viacom v. YouTube: A Different View on the District Court Ruling
Prof. Jim Gibson, University of Richmond School of Law
July 13, 2010

In an earlier essay in this series, Randy Picker discussed the recent copyright decision in Viacom v. YouTube, and in particular the court’s ruling that the Digital Millennium Copyright Act’s “safe harbor” for remote storage applies to YouTube’s online video service.... » Read More

Viacom v. YouTube: When Is It Storage? When Is It a Public Performance?
Prof. Randal C. Picker, The University of Chicago Law School
June 24, 2010

Yesterday, a federal district court in New York granted YouTube’s motion for summary judgment in its long-running litigation with Viacom. Viacom and — separately — the English Premier League sued YouTube and Google alleging that they were liable for infringing works that users posted on YouTube. Google is understandably trumpeting its victory....  » Read More

First Sale, First Principles – Part II
Prof. Doug Lichtman, UCLA School of Law
June 16, 2010

Section 109 of the Copyright Act states that the owner of a particular copy of a copyrighted work “is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.”  This is the “first sale” doctrine....  » Read More

The iPad and the Future of Expressive Creativity:
An Open Letter to Steve Jobs
Prof. Peter S. Menell, University of California-Berkeley School of Law
June 11, 2010

Dear Steve:  Congratulations on the iPad, yet another revolutionary product – perhaps Apple’s most transformative.  In just a few months, the iPad has broken through the digital book reader barrier....  » Read More

Conflict of Laws in the Google Book Search: A View From Abroad
Prof. Jane C. Ginsburg, Columbia University School of Law
June 2, 2010

Several of the IP Issues columns have addressed the Google Book Search controversy, principally from the perspective of the still-pending settlement agreement, which would regulate the online availability of digitized books (or portions of them) to U.S. Internet users.... » Read More

Scanning the Public Domain
Prof. Randal C. Picker, The University of Chicago Law School
May 24, 2010

I am working on a paper on the history of razors and blades (yes, I know that sounds obscure, even for an ivory tower sort; I’ll leave it to another day to try to persuade you that you should be fascinated, too)....  » Read More

Formalities and Tiered Copyright Protection
Prof. Jim Gibson, University of Richmond School of Law
May 18, 2010

In my last IP Issues entry, I discussed the advantages of reinstating formalities as prerequisites to copyright protection. In this entry, I will suggest one way in which this reinstatement might take place.... » Read More

Lies, Damned Lies, and [Characterizations of Digital Piracy]
Statistics: A Call for Moderation
Prof. Peter S. Menell, University of California-Berkeley School of Law
May 5, 2010

Mark Twain’s popularization of Benjamin Disraeli’s oft-quoted quip – “[t]here are three kinds of lies: lies, damned lies, and statistics” – has taken on new relevance in the latest round of rhetoric surrounding the effects of file-sharing on content industries.... » Read More   

Academic Freedom, Copyright, and Work-for-Hire
Dean Rodney A. Smolla, Washington and Lee University School of Law
April 29, 2010

The academic freedom rights of university professors are usually discussed in the vocabulary of the First Amendment.  Professors at public universities have freedom of speech rights....  » Read More

First Sale, First Principles
Prof. Doug Lichtman, UCLA School of Law
April 26, 2010

Copyright law’s first sale doctrine is part of our everyday experience.  College students, for example, routinely purchase textbooks or study aids, use them for a semester, and then sell them to other students who might be taking the same class the following term....  » Read More

“The sole right ... shall return to the Authors”:
Part III: Transitional Issues
Prof. Jane C. Ginsburg, Columbia University School of Law
April 14, 2010

My two prior contributions to IP Issues have not exhausted the questions the 1976 Act termination right raises.  The Copyright Office recently issued a Notice of Inquiry seeking comments on a possible “gap” in the 1976 Act termination provisions....  » Read More

What Is Your Killer App for the iPad?
Prof. Randal C. Picker, The University of Chicago Law School
April 5, 2010

The iPad arrived on Saturday.  Not mine, unfortunately, as I want to see it live and in person before buying, but the iPad itself.  I am not enough of a fanboy to have rushed out to see one immediately, though I confess to being eager to do so....  » Read More

True Authors and the Work-for-Hire Doctrine – Part I
Prof. Justin Hughes, Cardozo School of Law, Yeshiva University
March 25, 2010

In her contributions to this series, Professor Jane Ginsburg has explored the termination-of-transfer provisions in American copyright law.  The author’s power to reclaim her copyright 35 years after she agreed to its transfer is an extraordinary aspect of copyright....  » Read More  

The Rebirth of Copyright As an Opt-In System?
Prof. Jim Gibson, University of Richmond School of Law
March 10, 2010

For most of the history of Anglo-American copyright law, copyright was an opt-in system: Authors had to jump through certain regulatory hoops if they wanted to prevent others from copying their works without consent.... » Read More

“The sole right ... shall return to the Authors”:
Part II: Implementing Authors’ Recapture Rights
Under the 1976 Copyright Act
Prof. Jane C. Ginsburg, Columbia University School of Law  
Feb. 26, 2010

In our previous column (Dec. 8, 2009) we addressed the history and policy of authors’ reversion rights in U.S. copyright law, as well as the general outlines of the 1976 Act provisions on terminations of grants of copyright.  In this column, we will review the caselaw construing those provisions.... » Read More

Google Books: Finally, Fair Use
Prof.  Doug Lichtman, UCLA School of Law
Feb. 23, 2010

Last week, U.S. District Court Judge Denny Chin held a much-anticipated “fairness hearing” during which a chorus of interested parties spoke both for and against Google’s proposed settlement to its Book Search litigation....  » Read More  

File-Sharing Copyrighted Works Without Authorization:
A Misguided Social Movement
Prof. Peter S. Menell, University of California-Berkeley School of Law
Feb. 17, 2010

A little more than a decade ago, Napster rocked the music industry by enabling anyone with a computer and an Internet connection to costlessly and virtually anonymously distribute files to millions of others.... » Read More

Moving Forward in Google Book Search
Prof. Randal C. Picker, The University of Chicago Law School
Feb. 10, 2010

On Feb. 4, the Department of Justice filed its second statement of interest in the pending Google Book Search (GBS) case. We now have a full slate of second-round filings as we head toward the fairness hearing set for a New York federal court on Feb. 18, 2010.  Where do we stand?  » Read More

Monopoly for Me
Prof. Stan Liebowitz, University of Texas at Dallas
Feb. 2, 2010

Keeping a monopoly on yourself? Economists are trained to examine individual markets in order to determine whether or not those markets are functioning in an “economically efficient” manner. Economic efficiency, once achieved, requires that there be no way to increase the overall “surplus” – the difference between benefits and costs – available to members of society....  » Read More

Copyright as Censorship – Part II
Prof. Jim Gibson, University of Richmond School of Law
Jan. 12, 2010

In this essay, I discuss copyright’s role in facilitating a different kind of censorship: lawsuits in which a copyright owner seeks to suppress expression rather than facilitate it....  
» Read More

Copyright as Censorship – Part I
Prof. Jim Gibson, University of Richmond School of Law
Dec. 22, 2009

2010 marks the 300th anniversary of the Statute of Anne, the English legislation that ushered in the modern era of copyright law.  The Statute of Anne is celebrated for a number of reasons, and perhaps foremost among them is its rejection of copyright as an instrument of censorship.  Before Parliament enacted the Statute....  » Read More

“The sole right ... shall return to the Authors”:
Recapturing Authors’ Alienated Copyrights
Prof. Jane C. Ginsburg, Columbia University School of Law  
Dec. 8, 2009

The last clause of the first copyright act, the 1710 English Statute of Anne, anticipated authors’ weaker bargaining position, and, so long as the author lived through the first 14-year term, re-vested a second term of copyright in the author.  Fourteen years of sales history would have enabled the author to ascertain the value of the work....  » Read More

Patent Law and the Bilski Oral Argument
Prof. Doug Lichtman, UCLA School of Law
Dec. 1, 2009

The United States Supreme Court recently heard oral argument in a patent case called In Re Bilski.  At issue is the question of under what conditions an innovative process falls within the subject matter of patent law. On one view, some processes should be excluded from the patent system – for instance, because they involve....  » Read More

Easterbrook on Copyright
Prof. Randal C. Picker, The University of Chicago Law School
Nov. 18, 2009

My favorite German word is festschrift.  What could be nicer than commemorative essays to celebrate an event?  The University of Chicago Law Review is publishing essays in celebration of Judge Frank Easterbrook’s 25th year on the bench.  My essay focuses on what students of copyright learn from Judge Easterbrook.... » Read More

Borderless Publications, the Berne Convention, and U.S. Copyright Formalities
Prof. Jane C. Ginsburg, Columbia University School of Law
Oct. 20, 2009

A recent audacious and, happily, unsuccessful attempt to impose U.S. copyright formalities on foreign-published works illustrates the difficulties of adapting international norms that presume the existence of national borders to a world of simultaneous and pervasive communication of works of authorship....  » Read More  

Two Copyright Lessons From a Pop Music Controversy
Prof. Jim Gibson, University of Richmond School of Law
Oct. 7, 2009

People who study copyright law for a living must frequently endure the disappointment of seeing an interesting case settle out of court.  For example, lurking behind the current Google Books controversy is a fascinating fair use argument – but if the proposed settlement manages to survive antitrust and other challenges, no court will ever have a chance to rule on the fair use issue.... » Read More

Network Neutrality and the Copyright Wildcard
Prof. Justin Hughes, Cardozo School of Law, Yeshiva University
Oct. 2, 2009

Last week, Federal Communications Commission Chairman Julius Genachowski gave an address at The Brookings Institution in which he proposed that the FCC’s position on “net neutrality” be strengthened and deepened – through converting four existing principles into rules and adding two new net neutrality rules, one concerning non-discrimination “against particular Internet content.... » Read More

What Is Derivative Work?
Prof. Douglas Lichtman, UCLA School of Law
Sept. 24, 2009

Section 106(2) of the Copyright Act recognizes in authors the exclusive right to prepare derivative work.  This is in addition to the other exclusive rights listed in Section 106, such as the exclusive right to make reproductions and the exclusive right to engage in public performance.  In the definitions section of the Act, we’re given a bit of information about what it means to be a derivative work.... » Read More

Google Books Settlement: Taking the Long View
Prof. Peter S. Menell, UC – Berkeley School of Law
Sept. 16, 2009

From ancient origins in the ill-fated Library of Alexandria through the Middle Ages and into modern copyright regimes, societies have long sought to preserve and catalog human knowledge and make it publicly accessible.  For much of history, however, these goals have been elusive due to the cost of assembling and storing works, the impermanence of paper and ink, and the inherent limitations on access to physical copies.... » Read More

Copyright, Radio, and the Fallacy of Composition
Prof. Stan Liebowitz, University of Texas at Dallas
Sept. 1, 2009

Two pieces of copyright legislation have been floating around Congress during the last two years that are diametrically opposed to each other.  One is the “Performance Rights Act” and the other is the obscurely named “Local Radio Freedom Act.”  The purpose of the first proposed act (supported by a coalition of artists and record companies, known as MusicFirst) is to require radio stations.... » Read More

A Re-Moveable Feast?
Prof. Jane C. Ginsburg, Columbia University School of Law
Aug. 14, 2009

The recent controversy over the publication of a new, and altered, edition of Ernest Hemingway’s memoir of his early days in Paris, A Moveable Feast (see, e.g., the New York Times account), inspires this exploration of the legal consequences of an heir’s reworking of a work of authorship.  In an op-ed contribution to the New York Times, A.E. Hotchner, Hemingway’s friend and biographer, proclaimed.... » Read More

Rights and Norms in the Digital Era
Prof. Robert P. Merges, Boalt Hall School of Law, UC-Berkeley
Aug. 6, 2009

In the IP world, and in law generally, commonly accepted non-legal social norms have been the focus of intense interest in recent years.  Much of the attention has focused on the interaction between norms and formal law.  Some scholars have been interested in norms that take the place of law, either filling in gaps or completely duplicating law’s social ordering function.... » Read More

Using IP To Suppress Innovation (On Purpose)
Prof. Jim Gibson, University of Richmond
July 29, 2009

In this “IP Viewpoints” post, I hope to combine two Uncontroversial Premises to reach a Counterintuitive Conclusion about the role that intellectual property can play in the regulation of innovation.  First Uncontroversial Premise: IP is a useful tool for creating incentives to innovate, but too much IP protection is counterproductive.  Giving innovators exclusive control.... » Read More

Chilled Innovation v. Balanced Evolution:
Reflecting on Indirect Copyright Liability in the Digital Age
Prof. Peter S. Menell, UC – Berkeley School of Law
July 24, 2009

Following the Supreme Court’s Grokster decision four years ago, Professor Lawrence Lessig predicted that the decision would gravely hamper innovation in digital technology.  This prediction reflects plausible logic.  If those who develop technology that can be used to infringe copyrights are exposed to potentially crushing liability – such as what befell Napster, MP3.com’s MyMP3... » Read More

Election Copyright –
Campaign Ad Smackdown
Prof. Justin Hughes, Cardozo School of Law, Yeshiva University
July 20, 2009

In the first two essays of “Election Copyright” we considered musicians trying to use copyright to protect their reputational and “personality” interests, then how the originality standard of copyright, for better or for worse, imposes serious limits on the kinds of copyright claims that should be made about photography.  Now, in this third installment, we bring these topics together....» Read More

Everyone Hates DRM
Prof. Douglas Lichtman, UCLA School of Law
June 25, 2009

Ten years ago, a meaningful discussion of copyright law could focus almost exclusively on the federal copyright statute and its related case law. At that time, the primary powers wielded by copyright holders were rights granted explicitly by the statute, such as the exclusive right to authorize duplication, and the exclusive right to authorize distribution.... » Read More

The Google Book Search Settlement: A New Orphan-Works Monopoly?
Prof. Randal C. Picker, The University of Chicago Law School
June 18, 2009

Google is a company of modest ambitions.  As it puts it in its brief corporate statement, Google’s mission is to “organize the world’s information and make it universally accessible and useful.”  Organize it, put it online, display it, and make a few dollars at the same time. Google’s Book Search  is a core piece of this vision... » Read More

Public Licenses: The Gift That Keeps On Giving
Prof. Jane C. Ginsburg, Columbia University School of Law
June 11, 2009

Rob Merges’s recent (May 26) contribution on “Intellectual Property and the Culture of Giving” inspires this follow-up. Rob evoked “the right (and wrong) way to give [rights] away.” I would like to consider further whether public licenses for works other than software, such as those proposed by Creative Commons (CC) that facilitate free distribution of works, are the right (or wrong) way for authors... » Read More

Intellectual Property and the Culture of Gifting
Prof. Robert P. Merges, Boalt Hall School of Law, UC-Berkeley
May 26, 2009

The current literature on IP rights is full of contrasts.  On one side are the champions of the digital revolution, who argue that traditional IP rights are generally unsuited to the new world of digital content.  They claim that the inherited structure of IP rights was designed for an analog world, and so it fits uncomfortably with the new reality of instantaneous, ubiquitous interconnection.  Many go further... » Read More

When Is Market Destruction Creative?
Prof. Stan Liebowitz, University of Texas – Dallas
May 20, 2009

Economists and non-economists alike tend to be familiar with the phrase “creative destruction” and its implications that, although established firms may bemoan new innovation upsetting apple carts in their industry, and government may try to protect them from those changes, in the end we are all better off because of the creative commotion... » Read More

Election Copyright – “You Press the Button, We Do the Rest”
Prof. Justin Hughes, Cardozo School of Law, Yeshiva University
May 6, 2009

The dispute going to copyright’s fundamentals erupted shortly after the election and concerns the emblematic "Hope" poster of Barak Obama's presidential campaign.  The poster, by Shepard Fairey, was based on a photograph taken by Mannie Garcia, a Washington photographer who was working for the Associated Press (AP).  The AP claimed ownership of the photo and sought payment for the poster as a derivative work.... » Read More

The Case for (Considering) Regulation of Technology
Prof. Jim Gibson, University of Richmond School of Law
May 1, 2009

Given a choice, which would you prefer: A world in which it is easier to encrypt information than to decrypt it? A world in which decryption is easier than encryption? A world in which the two stand in a cost/benefit equipoise? When the question is put like that, the answer seems to depend... » Read More

Election Copyright – They’re Playing Our Song
Prof. Justin Hughes, Cardozo School of Law, Yeshiva University
April 14, 2009

Among all its other historic precedents, the 2008 presidential election provided an inordinate number of copyright disputes involving the candidates.  To opponents of intellectual property, that will just be further proof that copyright is out of control, permeating our lives in ways that restrict both technological progress and freedom of expression... » Read More

IP Rights and 'Creative Professionals'
Prof. Robert P. Merges, Boalt Hall School of Law, UC-Berkeley
March 25, 2009

I take the participatory, democratic aspects of culture very seriously.  I have devoted some effort to thinking through how the inherited legal structure of IP rights can be adapted and modified to encourage the many new avenues of participatory creativity – the wikis, open source projects, and other forms of what are called “crowdsourcing.” But – and here is where I differ from a fair number of contemporary IP scholars...» Read More

Amazon’s Kindle 2: The Copyright Ghost in the Machine
Prof. Jim Gibson, University of Richmond
March 11, 2009

A number of copyright controversies have caught the public’s eye this year — e.g., the lawsuit over the AP photo of Barak Obama, the feud between Coldplay and Joe Satriani, the debate about Facebook’s policies toward the intellectual property of its users.  Yet these disputes, fascinating though they are, involve the application of well-known legal principles....
» Read More

Are Statutory Damages Constitutional?
Prof. Doug Lichtman, UCLA School of Law
March 4, 2009

A few months ago, Harvard Law School Professor Charlie Nesson took Joel Tenenbaum as a client. Tenenbaum was up until then just one of the thousands of individuals who had been sued by the music industry for uploading and downloading music online. But with Nesson now involved....» Read More

Welcome Google 3.0 – Ushering Professional Content Into the World’s Leading
Search Environment
Prof. Peter S. Menell, UC-Berkeley School of Law
Feb. 24, 2009

For much of its first decade of meteoric growth, Google built its Internet search engine business without the apparent need or desire to license copyrighted content. Relying on the DMCA’s online service provider safe harbors, the fair use doctrine, and implied consent, Google 1.0 blissfully indexed the Internet’s text.... » Read More

Authors’ Contracts: Don’t Give Away the Store!
Prof. Jane C. Ginsburg, Columbia Law School
Feb. 19, 2009

I’d like to invite readers to take a tour of a website, www.keepyourcopyrights.org, which the Kernochan Center for Law, Media and the Arts, and the Center for Law and Technology at Columbia Law School have launched in the hope of bringing some power back to the people who create works of authorship.... » Read More

The lawsuit filed Feb. 9 by Shepard Fairey against the Associated Press raises some basic questions about what copyright does and doesn’t do. Yesterday’s New York Times describes the background and displays the two critical images. The first is a photograph snapped by Mannie Garcia for the Associated Press.... » Read More