Prof. Jane C. Ginsburg, Columbia University School of Law August 21, 2014 In ABC v. Aereo, a 6-to-3 majority (Breyer, joined by Roberts, Kennedy, Ginsburg, Sotomayor, and Kagan) held that Aereo was “performing” the broadcast programming when the service captured the programming through the users’ individually assigned antennas, then digitized, momentarily stored in individualized copies, [...]

Prof. Doug Lichtman, UCLA School of Law August 11, 2014 My colleagues and I have written a great deal about copyright law’s “fair use” doctrine on this site over the years.  We have disagreed about cases, and we have struggled with various aspects of the standard fair use test.  Through all of those discussions, however, [...]

Prof. Randal C. Picker, University of Chicago Law School August 6, 2014 As the New York Times 2004 headline put it, “New Google Service May Strain Old Ties in Bookselling.”  Strain indeed.  Google announced its mass book digitization project, which it then called Google Print, at that year’s Frankfurt Book Fair.  Now almost 10 years [...]

Prof. Rodney A. Smolla, Duke University School of Law July 29, 2014 The Supreme Court in Petrella v. Metro-Goldwyn-Mayer, Inc.1 interpreted the ancient equitable doctrine of “laches” as applied to a copyright holder’s delay in enforcing remedies under the Copyright Act.  The laches doctrine operates to bar claims that might otherwise be brought when the [...]

Prof. James Gibson, University of Richmond School of Law July 22, 2014 The conventional wisdom provides two traditional justifications for trademark law.  The first is the “consumer protection” rationale.  If there were no trademark law, an unknown soft drink manufacturer could freely use Coca-Cola’s COKE trademark on its goods.  If it did so, consumers would [...]

Prof. Doug Lichtman, UCLA School of Law July 3, 2014 The Supreme Court has now spoken in Aereo, and my colleagues here and elsewhere are actively discussing the Court’s opinion and its implications.  I will join that conversation at some point down the road, but for now I want to take a slightly different approach [...]

Prof. Peter S. Menell,* University of California at Berkeley School of Law, and Prof. David Nimmer,** UCLA School of Law June 27, 2014 The Aereo case presented two fundamental showdowns: one between the cable industry and a charismatic disruptive technology, and the other between textualists and jurists seeking to vindicate legislative intent.  Much of the [...]

Prof. Robert P. Merges, University of California at Berkeley School of Law June 26, 2014 Those of us who sweat in the clammy gymnasia of patent law have been waiting – with a mix of excitement, dread, and cynical disregard – for the Alice v. CLS Bank decision.  The idea was, when the Supreme Court [...]