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Abstract:
A dispute resolution panel of the World Trade Organization in June 2000 held the United States in contravention of its obligation under art. 13 of the TRIPs accord to "confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." In the dispute resolution proceeding, initiated by the European Union at the behest of the Irish performing rights organization, the contested exception, enacted in the 1998 "Digital Millennium Copyright Act," exempted a broad range of retail and restaurant establishments from liability for the public performance of musical works by means of communication of radio and television transmissions.

The WTO panel decision marks the first time an international adjudicative body has interpreted either art. 13 of TRIPs, or art. 9.2 of the Berne Convention, the text TRIPs incorporates, and generalizes from the Berne Convention reproduction right to all TRIPs and Berne rights under copyright. Berne art. 9.2/TRIPs art. 13 impose the "three-step test" to evaluate the legitimacy of exceptions and limitations on copyright; the panel's decision extensively analyzes each of the steps. As other multilateral instruments, such as the 1996 WIPO Copyright Treaty (art. 10) and WIPO Performers and Phonograms Treaty (art. 16.2), as well as the pending European Union Information Society Directive (art. 5.4), increasingly adopt the "three-step test," the WTO Panel decision may significantly advance the development of a truly supra national law of copyright.

This article will analyze the Panel's interpretation of the test's three steps, and their application to the U.S.-law exemption. The article will also compare the Panel's treatment of the three-step test with the prior analyses proposed by several Berne Convention commentators, in order to reflect on what the Panel's analysis might mean for copyright exceptions more broadly. It is important to recognize, however, that the decision's actual impact on international copyright law will also depend on other considerations that will not be addressed here, including: Member State compliance with Panel decisions; the precedential effect of one Panel decision on later dispute resolution panels; and the willingness of national courts to look to WTO Panel decisions for guidance in evaluating local exceptions.

Abstract:
This essay addresses how current U.S. copyright law responds to new forms of distribution of copyrighted works, through the emerging right to control digital access to copyrighted works, as set out in ? 1201 of the 1998 Digital Millennium Copyright Act. When the exploitation of works shifts from having copies to directly experiencing the content of the work, the author's ability to control access becomes crucial. Indeed, in the digital environment, without an access right, it is difficult to see how authors can maintain the exclusive Right to their Writings that the Constitution authorizes Congress to secure. Even if Congress may qualify the right's exclusivity by imposing a variety of compulsory licenses, or outright exemptions, it is one thing to introduce specific and narrow gaps in coverage, quite another to design a system that pervasively fails to afford meaningful exclusivity. The latter course would be inconsistent with the constitutional design.

Thus, the exclusive Right today is not only a copy-right, but an access right, and the Essay explores the implications of that claim. It does not contend that the access right will or should supplant copy-right. On the contrary, the claim is that the access right is an integral part of copyright, and therefore should be subject to exceptions and limitations analogous to those that constrain copy-right. Just as a 21st-century copyright regime that did not regulate access would be unrealistic and incomplete, so a regime that limits all availability to works to the copyright owner's terms would undermine the progress of Science that the author's exclusive Right is intended to promote. Without an appropriate fair use limitation, the access right under ? 1201 becomes more than a necessary and integral component of copyright law. It becomes instead an Uber-copyright law, rigid as to specified exceptions, and therefore freed of further inquiry into the balance of copyright owner rights and user privileges that the fair use doctrine ? and the general structure of copyright law ? require.

Abstract:
1998 ended with voluminous copyright legislation, pompously titled the "Digital Millennium Copyright Act" ["DMCA"], and intended to equip the copyright law to meet the challenges of online digital exploitation of works of authorship. 1999 and 2000 have brought some of the ensuing confrontations between copyright owners and Internet entrepreneurs to the courts. The evolving caselaw affords an initial opportunity to assess whether the copyright law as abundantly amended can indeed respond to digital networks, or whether the rapid development of the Internet inevitably outstrips Congress' and the courts' attempts to keep pace. This Article addresses recent Internet-related controversies concerning technological protection measures and copyright management information; fair use and linking; "private" copying online services; and choice of law issues posed by foreign websites accessible in the U.S.

The Internet copyright cases this Article examines call not only for interpretation of the provisions of the DMCA, but also for application of principles developed in pre-DMCA cases involving digital media and digital networks. What may make the current controversies different is the intensity of their impact on end-users. While the defendants in the current cases are generally, albeit not exclusively, commercial intermediaries, many of the practices here at issue pose the prospect of mass uncompensated copying by the public. Hence the feeling of desperation and even moral outrage that one senses pervades many of the copyright owners' actions. From the user perspective, digital media offer unparalleled opportunities to access and enjoy copyrighted works; copyright owners' endeavors to staunch the free (as in unpaid) flow of works are misguided attempts to stop the inexorable forward march of technology for the sake of preserving mastodontic business models of distribution. Certainly the Internet will compel adoption of new business models, and the sooner copyright owners adapt, the better. The tools the DMCA and copyright caselaw give copyright owners to confront copyright use on the Internet should be employed to promote broad distribution of works of authorship at reasonable, and variable, prices. If copyright owners instead wield these tools to enhance control without facilitating dissemination, we can expect to see courts expand the zones of excused uses, whether or not the excuses are doctrinally persuasive. Copyright owners cannot, and should not, control every Internet use, but neither should every use prompt an excuse, lest we undermine the ability of copyright owners, and especially of individual creators, to make a living from their creativity.

Abstract:
On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors' rights and the advent of new technologies, particularly in relation to peer-to-peer networks.

In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular 'file-sharing' networks, Grokster and Streamcast (dba Morpheus) should be held liable for facilitating the commission of massive amounts of copyright infringement by the end-users who employed the defendants' peer-to-peer (P2P) software to copy and redistribute films and sound recordings to each others' hard drives. The Court reversed the Ninth Circuit's grant of summary judgment for defendants, holding that the technology entrepreneurs could be held liable for 'actively inducing' the end-users' acts of infringement. A similar decision was reached in Australia with respect to the KaZaa software, albeit in this proceeding the court had the advantage of much greater factual material as to the operation of the KaZaa system than did the US Supreme Court in Grokster. Nonetheless, both cases illustrate the difficulties that arise as consumer-wielded digital media increasingly supplant the traditional intermediaries who made copyrighted works available to the public (and who traditionally were the targets of copyright enforcement) and as courts struggle to balance meaningful protection for works of authorship against the progress of technological innovation. For some, the weakening of copyright control is the necessary price to pay for technological advancement. For others, authors' ability to maintain exclusive rights remains a cornerstone of any copyright system as it adapts to accommodate new modes of exploitation.

Grokster is the latest, and most important, in a series of US decisions to address that balance by articulating the liability of an enterprise which does not itself commit copyright infringement, but instead makes it possible for others to infringe. To appreciate the Supreme Court's analysis, it helps to set the case in both domestic and international doctrinal context. Because unauthorized P2P distribution of copyrighted works extends well beyond the US, copyright owners have pursued legal actions in other countries, including the Netherlands and Australia. While the Australian case still awaits full appellate consideration, it provides a useful example of how another common law jurisdiction (Australia) analyses the liability of those who provide goods or services to facilitate infringement. In this regard, it is also useful to consider what obligations, if any, exist at the international level with respect to the liability of infringement-facilitators. We will conclude with some (perhaps foolhardy) forecasts for the post-Grokster/KaZaa future of copyright enforcement.

KaZaa, Grokster, file sharing, file share, authors' right, peer-to-peer, copyright, morpheus, streamcast, P2P, infringement, technology

Abstract:
In contemporary debates over copyright, the figure of the author is too-often absent. As a result, these discussions tend to lose sight of copyright's role in fostering creativity. I believe that refocusing discussion on authors - the constitutional subjects of copyright - should restore a proper perspective on copyright law, as a system designed to advance the public goal of expanding knowledge, by means of stimulating the efforts and imaginations of private creative actors. Copyright cannot be understood merely as a grudgingly tolerated way-station on the road to the public domain. Nor does a view of copyright as a necessary incentive to invest in dissemination of copy-vulnerable productions adequately account for the nature and scope of legal protections. Much of copyright law in the US and abroad makes sense only if one recognizes the centrality of the author, the human creator of the work. Because copyright arises out of the act of creating a work, authors have moral claims that neither corporate intermediaries nor consumer end-users can (straightfacedly) assert. This makes it all the important to attempt to discern just what authorship means in today's copyright systems.

This Article endeavors to explore the concept of authorship in both common law and civil law jurisdictions. It considers legislative, judicial and secondary authorities in the US, the UK, Canada and Australia, as well as in the civil law countries of France, Belgium and the Netherlands. The legal systems here examined appear to agree that an author is a human being who exercises subjective judgment in composing the work and who controls its execution. But that description may neither fully capture nor exhaust the category of "authors." Contending additional or alternative authorial characteristics range from sweat of the ordinary brow, to highly skilled labor, to intent to be a creative author, to investment. The under- or over-inclusiveness of the subjective judgment criterion depends on which of these other characteristics national laws credit. Despite these variations, I nonetheless conclude that in copyright law, an author is (or should be) a human creator who, notwithstanding the constraints of her task, succeeds in exercising minimal personal autonomy in her fashioning of the work. Because, and to the extent that, she molds the work to her vision (be it even a myopic one), she is entitled not only to recognition and payment, but to exert some artistic control over it. If copyright laws do not derive their authority from human creativity, but instead seek merely to compensate investment, then the scope of protection should be rethought and perhaps reduced.

Abstract:
Over the last several years, copyrighted works have come to account for a healthy portion of our GNP, and an even more substantial share of U.S. exports. Nonetheless, copyright is in bad odor these days. Many of the developments over the last years designed to protect copyright have drawn academic scorn, and intolerance even from the popular press. I have a theory about how copyright got a bad name for itself, and I can summarize it in one word: Greed.

Corporate greed and consumer greed. Copyright owners, generally perceived to be large, impersonal and unlovable corporations (the human creators and interpreters - authors and performers - albeit often initial copyright owners, tend to vanish from polemical view), have eyed enhanced prospects for global earnings in an increasingly international copyright market. Accordingly, they have urged and obtained ever more protective legislation, that extends the term of copyright and interferes with the development and dissemination of consumer-friendly copying technologies.

Greed, of course, runs both ways. Consumers, for their part, have exhibited an increasing rapacity in acquiring and "sharing" unauthorized copies of music, and more recently, motion pictures. Copyright owners' attempts to tame technology notwithstanding, at least some of the general public senses as illegitimate any law, or more particularly, any enforcement that gets in the way of what people can do with their own equipment in their own homes (or dorm rooms). Worse, they would decry this enforcement as a threat to the Constitutional goal of promotion of the Progress of Science, and thus a threat to the public interest.

In this formulation, the "public interest" is doing a lot of work, not all of it persuasive. The "public interest" does not mean the personal interest of members of the public in getting works of authorship without paying for them. This is as much a perversion of the Constitutional copyright clause as is the anthropomorphically nonsensical, but infinitely self-serving, adage "Information wants to be free." But neither is every legal protective measure that a copyright owner urges in the name of authors' Constitutional interest in "securing . . . the exclusive Right to their . . . Writings" a guarantor of the Progress of Science. In fact, the "public interest" in a balanced copyright system that provides meaningful incentives to first authors, while allowing second authors room to build on their predecessors' endeavors, as well as reasonable leeway for autonomous consumer enjoyment, has come in for considerable battering by both copyright owners and users.

This Essay does not attempt a comprehensive review of recent U.S. copyright legislation and caselaw. Instead, it offers an analytical framework that will allow me to be both informative and opinionated. I propose first to expose some examples of the kind of copyright owner overreaching that has correctly given copyright a bad name. I then will argue that not all the bad publicity is deserved. Rather, much of the last years' legislation and caselaw, instead of overreaching, appropriately reaches out to address new problems prompted by new technologies, so as to strike a happier balance between copyright owner, intermediary, and end-user interests (or greeds). This in turn will permit our legal system to continue to afford a hospitable environment for the creation and dissemination of works of authorship, to the ultimate enrichment of the public.

Abstract:
In recent years, the number and content of substantive norms that international copyright treaties impose on member states have increased considerably. It is therefore appropriate to consider the extent to which those instruments have in effect created an international (or at least multinational) copyright code, as well as to inquire what role national copyright laws do and should have in an era not only of international copyright norms, but of international dissemination of copyrighted works. This Article first considers the displacement of national norms through the evolution of a de facto international copyright code, elaborated in multilateral instruments such as the Berne Convention, the TRIPs Accord, and the pending WIPO Copyright Treaty, as well as by harmonization measures within the European Union. The second part of this Article addresses the place that remains for national copyright norms, first through gaps left in the WIPO, WTO and EU multilateral instruments, and second, through choice of law. In the latter instance, a national norm will govern a multinational copyright contract or dispute, but other national copyright norms may be eluded.

Finally, this Article considers what role should remain for national copyright laws. National copyright laws are a component of local cultural and information policies. As such, they express each sovereign nation's twin aspirations for its citizensexposure to works of authorship, and participation in their country's cultural patrimony. Perhaps that simply means that each country's local policies should prevail within its borders, whatever the national origin of the work locally received. On the other hand, the pervasive international dissemination of works of authorship also calls into question the extent to which authors and their works should be subject to different national standards. The Article concludes that national laws allocating copyright ownership form the strongest candidates for preservation; national exceptions to copyright present a more difficult, but potentially persuasive, case for persistence of national norms as well.

Abstract:
Professor Litman has written Digital Copyright for the general public, though lawyers, and especially copyright lawyers, would do well to read it. Professor Litman's message is straightforward: Copyright law is too complicated and counterintuitive. It has been written by and for copyright lawyers who represent many, but not all, of the players. Those left out include developers of new ways of communicating copyrighted works, and, most importantly, end users. But nowadays, copyright directly affects end users in ways more pervasive than could have been expected in the analog world. If copyright law doesn't make sense to those who are supposed to adhere to it, copyright will cease to be a meaningful constraint on users' activities. This review first briefly addresses Professor Litman's evocation of the copyright law-making process. Her discussion of legislative history presents a valuable and compelling account, especially for those unfamiliar with copyright law. But the most provocative portions of the book, to which this review will devote most attention, are the chapters in which Professor Litman (a) reviews and challenges various metaphors for copyright policy (Chapter 5, "Choosing Metaphors"); (b) in which she recounts the rocky relationship between copyright owners and developers of new technological means of disseminating works (Chapter 10, "The Copyright Wars"); and (c) in which she offers her own prescription for a simple, fair and workable copyright law (Chapter 12, "Revising Copyright Law for the Information Age"). Digital Copyright will not dispel disagreements about copyright's goals and proper scope; but because Professor Litman is such an effective advocate, she forces "copyright optimists" (such as this reviewer) to think harder about whether strong copyright protection remains desirable. This review therefore endeavors not only to present Professor Litman's arguments, but to offer some reasons for resistence to some of those claims.

Abstract:
The recent announcement (in late November 2006) of the Copyright Office's triennial rulemaking to identify "classes of works" exempt from the § 1201(a)(1) prohibition on circumvention of a technological measure controlling access to copyrighted works in part occasions this assessment of the judicial and administrative construction of this chapter of the 1998 Digital Millennium Copyright Act. The current Rulemaking appears more innovative than its predecessors, particularly in defining the exempted class of works by reference to the characteristics of the works' users. Copyright owner overreaching or misuse may also underlie the relative vigor of this Rulemaking: if producers of devices or providers of services seek to leverage into de facto monopolies over utilitarian articles the protection of access controls on computer programs that in turn control the function of these objects, then the courts and the Librarian of Congress through the Copyright Office will need to exercise countervailing vigilance in interpreting the statute. Fortunately, Section 1201 is not so hermetically drafted as to resist all attempts to introduce flexibility; this article suggests some approaches to offset overly literalist statutory construction. Notably, the emergence of fair use as a limiting norm of extra-copyright application, as evidenced in the Trademark Dilution Revision Act of 2006, suggests that judges may yet devise ways of reconciling broader intellectual property rights with principles of free expression. Those who interpret the statute should nonetheless bear in mind the many new business models that Congress foresaw and that digital rights management measures (some of them author-empowering) have in fact enabled, lest insecurity dampen the prospects for these models' development.

Abstract:
The Berne Convention 1971 Paris Act covered the right of communication to the public incompletely and imperfectly through a tangle of occasionally redundant or self-contradictory provisions on "public performance," "communication to the public," "public communication," "broadcasting," and other forms of transmission. Worse, the scope of rights depended on the nature of the work, with musical and dramatic works receiving the broadest protection, and images the least; literary works, especially those adapted into cinematographic works, lying somewhere in between. The 1996 WIPO Copyright Treaty rationalized and synthesized protection by establishing full coverage of the communication right for all protected works of authorship. The WCT also introduced a new designation, the "right of making available to the public." This right corresponds to much communication of works over the Internet, whose users "access these works from a place and at a time individually chosen by them" (WCT art. 8).

As the drafters of the WCT (and its companion "Internet treaty" the WIPO Performers' and Phonograms Treaty, arts. 10 and 14) sought to modernize the Berne Convention to address new exploitations by means of new technologies, one might infer that the "right of making available" is something new and different, not previously within the Berne Convention minimum rights protected. If so, then Berne Convention members who have not yet ratified the WCT are not obliged to enforce foreign Berne Union authors' rights of making available (unless that country's own authors enjoy such a right, in which case the principle of national treatment would require extending the same protection to Unionist authors). The WCT has entered into force, but many Berne Member States have yet to ratify the treaty. As a result, the determination whether the "right of making available" is a substantive enlargement of Berne Convention rights, rather than a reaffirmation of the scope of the rights already mandated by Berne, carries practical consequences. Another practical consequence of the characterization of the "making available" right concerns its amenability to compulsory licensing. To the extent the right was comprehended within the Berne Convention art. 11bis broadcasting and retransmissions rights, Member States may subject it to compulsory licensing. Were the right either outside the Berne Convention altogether, or included only within the "communication to the public" rights set out in other articles of the Berne Convention, then Member States must treat the making available right as an exclusive right.

Abstract:
This proposal is meant to spur the intellectual property bar to consider whether it would be desirable to create a regime for international enforcement of intellectual property law judgments. Such a convention could be adopted under the auspices of the World Intellectual Property Organization ("WIPO") or through the World Trade Organization ("WTO").

There are several reasons to believe that an instrument drafted specifically for intellectual property disputes would be particularly advantageous. First, for intellectual property disputes, efficiency should be a principal target. Modern distribution methods, particularly satellite and Internet transmissions, make it increasing likely that intellectual property rights will be exploited simultaneously in more than one territory. The ability to consolidate claims arising from these usages in one court, with the expectation that the judgment of that court will be recognized in all convention States, could reduce costs for all sides, conserve judicial resources on an international basis, and promote consistent outcomes.

Second, a convention drafted for intellectual property disputes can take account of issues uniquely raised by the intangibility of the rights in issue. For example, an intellectual property agreement can consider the ability of a potential defendant to gain litigation advantages through the choice of the location of the activities that give rise to infringement. In certain situations, the propriety of expanding jurisdiction depends on the possibility of inconsistent outcomes; a convention tailored to intellectual property can specify what that term means in the context of public goods.

An instrument for intellectual property litigation can also deal specifically with matters of unique concern to the creative community. The strong link between culture on the one hand, and intellectual production and utilization on the other, means that the territoriality of these rights is of crucial importance: individual nations must be able to retain some control over the local conditions under which these products are created, exploited, and accessed. At the same time, an approach that creates new avenues for cross-cultural enrichment needs to be considered. For example, the circumstances where trans-border injunctions are permissible can be specified to include consideration of cultural, health, and safety issues. Other issues of prime interest to the information industries can also be considered: provisions on contract disputes can be tailored to deal with mass-market contracts, which are becoming prevalent in certain intellectual property transactions; provisions on infringement can be made sensitive to the interests of the "new media", such as Internet Service Providers.

Most important, the convention can be confined to rights covered by the intellectual property part of the General Agreement on Tariffs and Trade ("TRIPs Agreement") and open to signature only to countries that have joined the WTO and fully implemented the TRIPs Agreement. Since these are countries that have agreed to enforce intellectual property law and are subject to dispute resolution proceedings if they fail to do so, these limitations would reduce concerns that forum shopping will undermine the delicate balance that each nation has struck between the rights of intellectual property users and owners. And although dispute resolution under the WTO cannot provide litigants with a substitute for a centralized and authoritative appellate body (such as the US Supreme Court or the European Court of Justice), it can provide assurance of transparent and efficient judicial process, along with institutional mechanisms (such as dispute resolution panels, the Dispute Settlement Board, and the Council for TRIPs) for examining intellectual property law as it develops through consolidated adjudication of multinational disputes.

This is a "mixed" convention. It describes bases of jurisdiction that are predicates to enforcement in all member States and it describes bases of jurisdiction that are prohibited in cases involving foreign habitual residents of member States. It leaves member States free to decide for themselves the conditions under which judgments predicated on other bases of jurisdiction are enforceable. Its principal innovations include:

1. Scope. The Convention would be open only to TRIPs implementers and, with the additions of performance rights in sound recordings, and domain names, it would cover the same rights covered by the TRIPs Agreement.

2. Jurisdiction. This Convention identifies a set of fora with adjudicatory authority over the parties. In part, this is a consequence of the commitment to consolidation and cooperation. The parties' choices need not be narrowed if all courts seized with parallel litigation will, ultimately, consult with one another and with the parties to find the best place to adjudicate the entire dispute. Conversely, the courts and parties can select a better forum (in terms of convenience for the parties and witnesses, expertise of the decision maker, and relationship to the dispute) if there are several courts that enjoy adjudicatory authority. In part, this decision also emanates from the view that forum shopping in intellectual property disputes cannot, in any event, be controlled through personal jurisdiction rules: intangible rights and infringements can be reified in too many locations to make personal jurisdiction an effective limit on potential fora.

3. Contract disputes. Mass-market contracts (sometimes called "shrinkwrap" or "click through" agreements) are becoming increasingly common in intellectual property transactions. The enforceability of these agreements has been quite controversial and the Convention takes the position that the inability to negotiate does raise special concerns. Accordingly, the enforceability of any contract provision affecting the place of dispute resolution is subject to a requirement of negotiation or, in nonnegotiated contracts, reasonableness in the choice of forum. Factors taken into account in assessing the reasonableness of the chosen forum include whether, in the absence of a forum-selection clause, the chosen forum would have had jurisdiction over the nondrafting party.

4. Infringement actions. This instrument adapts jurisdictional doctrines regarding tort actions to tailor them to the context of intellectual property infringement and to the issues raised by the distribution of works in a digital environment. In addition, this proposal deals with "new media" defendants, such as Internet Service Providers. US law does not require special procedural protection for media defendants because substantive law has many explicit safeguards on the use of litigation to chill expression. In the absence of such safeguards in the domestic laws of every member State, it was thought necessary to create procedural protections in the form of immunity from suit in locations where contacts are purely passive.

5. Consolidation. A central insight animating this proposal is that efficient adjudication of intellectual property disputes is a benefit-to the parties, to the nations whose judicial resources would otherwise be redundantly utilized, and to the development of sound intellectual property law. Both US and European laws have mechanisms to promote consolidation, and the techniques of both systems are invoked here.

Abstract:
The ongoing transposition of the EU Information Society Directive's requirement that member States adopt of legal prohibitions of the circumvention of technological protections of works of authorship occasions this review of international obligations and their implementation in the US. This article addresses the scope of international obligations the WIPO Copyright Treaties impose on member States to protect against circumvention, as well as the US experience with the Digital Millennium Copyright Act's prohibitions on circumvention of access and copy controls. It examines the text of the statute, codified at sec. 1201 of the 1976 Copyright Act, the five years of judicial decisions interpreting the statute, and the two administrative proceedings implementing one aspect of the statutory scheme. The analysis of the DMCA and its judicial and administrative interpretation will take up three issues:

1) What technological measures does sec. 1201 protect?
2) What conduct does sec. 1201 prohibit?
3) To what extent does sec. 1201 accommodate copyright exceptions?

The US experience to date indicates that legal protection for technological measures has helped foster new business models that make works available to the public at a variety of price points and enjoyment options, without engendering the "digital lockup" and other copyright owner abuses that many had feared. This is not to say that the US legislation and its judicial interpretation represent the most preferable means to making the internet a hospitable place for authors while continuing to enable lawful user conduct. But brooding forecasts and legitimate continuing concerns notwithstanding, the overall equilibrium so far appears to be a reasonable one.

Abstract:
This lecture examines the role of borders in the Berne Convention at the time of the treaty's first passage in 1886, and today. The later 19th century was an era of increasing commerce and communication among countries whose domestic production and reproduction of works of authorship had vastly increased, thanks in part to new technologies, such as photography, lithography, and high-speed printing. But at that time, the frontiers between nations often frustrated authors' hopes for control over, or at least compensation for, the international exploitation of their works. Authors' rights ceased at their national boundaries; the world beyond foreboded not dragons, but pirates. At the inception of the 21st century, thanks to digital communications, authors are again encountering a world of increased international commerce in works of authorship, a world in which the persistence of national borders, and the disparate national regulation they entail, may seem even more frustrating than before. (Though, admittedly, the consequences of disparity are less dire than before; today, in lieu of expiration of protection, authors primarily face inconsistency of protection.) Moreover, the simultaneous and geographically pervasive nature of digital communications may undermine some basic rules of the Berne Convention. While the Berne Convention was designed to mute the significance of international boundaries, much of its structure presumes those borders. Their effective absence may provoke perverse results. This lecture will consider the extent to which Berne relies on national boundaries. It will also suggest measures that might be taken to alleviate the unintended consequences of the application of Berne's rules to the geographically indiscreet communication of copyrighted works, especially by digital media.

Abstract:
The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. Curiously, those rights, as enacted in our copyright laws, have not included the right to be recognized as the author of one's writings. Yet, the interest in being identified with one's work is fundamental, whatever one's conception of the philosophical or policy basis for copyright. That is, whether one sees copyright as a personality right conferring on the author the ownership of the fruits of her labor, or as an economic incentive scheme to promote the production of works of authorship, or as a public works program designed to fill the public domain, (or, most accurately, as a combination of the three), giving credit where it is due is fully compatible with both the author-regarding and the public-regarding aspects of these goals.

Most national copyright laws guarantee the right of attribution (or paternity); the leading international copyright treaty, the Berne Convention, requires that Member States protect other Members' authors' right to claim authorship. For a time, it seemed as if the Lanham Federal Trademarks Act provided partial coverage: by making false and confusing designations of origin actionable, the Act - many thought - afforded authors relief against misattributions of authorship. Even so, the trademarks law would only have reprimanded giving credit to one to whom credit was not due; it would not have afforded an affirmative right to claim authorship. In other words, giving incorrect credit may have been actionable; giving no credit was not.

Last June, however, the US Supreme Court interpreted the Lanham Act to deny false attribution claims as to the origin of a communicative product. The Court thus drastically limited invocation of the trademarks law to enforce authors' interests in being recognized as the creators of their works. In the wake of Dastar v. Twentieth Century Fox, what recourse do authors have in the US to claim authorship? I will first address the Dastar decision, to discern if any residue of attribution rights remains under the Lanham Act. Next, I will consider the extent to which the Copyright Act does, or might, afford attribution rights. That inquiry leads to the (despondent) answer that in the U.S. neither the copyright nor the trademarks laws establish a right of attribution generally applicable to all creators of all types of works of authorship. After examining other common law countries' recent enactments protecting attribution rights, I propose an amendment to the U.S. Copyright Act to add a federal right of attribution of authorship.

Abstract:
U.S. and many other national copyright systems have by statute or caselaw (or both) established rules engaging or excusing liability for facilitating (or, in commonwealth countries, "authorizing") copyright infringement. Taken as a group, they share a goal of insulating the innovator whose technology happens, but was not intended, to enable its adopters to make unlawful copies or communications of protected works. The more infringement becomes integrated into the innovator's business plan, however, the less likely the entrepreneur is to persuade a court of the neutrality of its venture. The US Supreme Court's 2005 decision in MGM v Grokster, established that businesses built from the start on inducing infringement will be held liable; judges will frown on drawing one's start-up capital from other people's copyrights. Thus, the inferences entrepreneurs may draw from the Court's elucidation of the elements of inducement may advise pro-active measures to prevent infringement from becoming a business asset. As a result, even businesses not initially built on infringement, but in which infringement comes to play an increasingly profitable part, may find themselves liable unless they take good faith measures to forestall infringements.

This article addresses the evolution of the U.S.'s judge-made rules of secondary liability for copyright infringement, and the possible emergence of an obligation of good faith efforts to avoid infringement. The recent announcements of inter-industry "Principles for User Generated Content Services" and of complementary "Fair Use Principles for User-Generated Video Content" suggest that proactive avoidance measures may become a matter of "best practice." The article then turns to the statutory regime of safe harbors established for certain Internet service providers and considers whether the statute insulates entrepreneurs who would have been held derivatively liable under common law norms. Finally, the article compares the U.S. developments with recent French decisions holding the operators of "user-generated content" and "social networking" websites liable for their customers' unauthorized posting of copyrighted works.

Abstract:
Much contemporary copyright rhetoric casts copyright as a derogation from a primordial public domain. Placing the public domain in the initial position buttresses attempts to contain a perceived over-expansion of copyright. I do not take issue with the normative role these endeavors assign to the public domain. The public domain is today and should remain copyright's constraining counterpart. But normative arguments that also claim the support of history may be fundamentally anachronistic. The ensuing examination of the respective domains of author and public at copyright's inception, in 18th-19th century Britain, France and America, reveals more ambiguity than today's critiques generally acknowledge.

In England, John Locke supplied the philosophical basis for a common law of authorial property rights before the passage of the first copyright statute, the Statute of Anne of 1710. The post-statutory caselaw belies the proposition that the statute provided the sole source of authors' enforceable legal rights. Had the Statute of Anne created property rights ex nihilo, then the following propositions should be true:

1. Subject matter not included within the statute was not protected
2. Protection for covered subject matter depended on compliance with statutory formalities
3. Rights not included within the statute were not protected
4. The duration of rights was limited to the statutory term

In fact, only the last of these ultimately proved to be correct, and the decision that determined the issue, Donaldson v. Beckett, was hotly debated, even deplored, at the time by significant expositors of the common law. More importantly, resolution of the duration issue did not fully contain the author's domain. English judges continued both to grant extra-statutory protections, and to interpret hospitably claims that pushed the limits of statutory scope.

In revolutionary France, the rhetoric of "propriété publique" held greater sway than in Britain. Advocates stressed both the public utility of works of authorship and the public's claims to unfettered use following a statutory period to which the author, as the work's creator, was justly entitled. But the author's claims were set against the backdrop of a broader public entitlement. Paradoxically, however, while the French sources articulated a concept of the public domain in many ways consistent with today's characterizations, the substantive law was in fact far more protective of authorial property rights than either British or American law at the time.

Finally, early American copyright history reveals even greater ambiguities. If the word "securing" in the constitutional copyright clause indicates that the Framers perceived that authors enjoyed preexisting common law property rights in their works, the heavy formalities imposed by subsequent statutes suggest a more positivistic view. In Wheaton v. Peters, the Supreme Court rejected common law copyright in published works, but for reasons extraneous to competing conceptions of the author's and the public's domains. Wheaton's reliance on "securing" to support State common law copyright protection for his published Reports echoed the unsuccessful arguments of the steamboat monopolists in Gibbons v. Ogden, who had asserted that "securing" implied residual authority in the States to protect writings and inventions, and that New York therefore had power to grant the inventor of the steamboat exclusive navigation rights on the Hudson River. Because "securing" bore the taint of the interstate trade barriers the Marshall court had struck down in Gibbons, Wheaton's later attempt to persuade that same court to resurrect residual State monopoly power was doomed to failure. Despite Wheaton's rejection of common law copyright in published works, the author's domain was not strictly limited to the narrow realm of the federal statutes. The public domain began with publication. An unpublished work remained the object of State common law rights, and over time the courts elaborated a parallel universe of common law rights in works which, albeit technically "unpublished" because they had not been distributed in copies to the general public, had nonetheless encountered significant, indeed sometimes massive public exposure. Thus, even in a system as positivist as US copyright, judges found occasion to recognize authors' extra-statutory literary property rights.

Abstract:
The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for "fair use." In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of "copy;" the reach of the distribution right on "distribute copies" and "transfer of ownership;" the range of the public performance right on "public" and "perform." Entrepreneurs and users of new technological means of exploiting copyrighted works have urged narrow constructions of each of these terms, arguing that broad interpretations will chill future innovation (and suppress present markets for copyright-exploiting devices or services). Copyright owners, concerned that unfettered new uses will supplant traditional copyright-controlled markets, have contended that the literal language, or, failing that, congressional intent, encompass the contested use. In addition, new technologies have called into question the identification of the person who "does" the copyright-implicating acts. Who makes a copy when the act is decomposed into steps taken by different actors? Who performs or displays a work when the work resides on one person's server, but the public perceives it through another person's website?

Several US courts have narrowly construed the reach of the exclusive rights of reproduction, distribution, public performance and public display, thus putting into doubt their efficacy in the digital environment. In particular, the Second Circuit's recent decision in Cartoon Networks v. CSC Holdings, if followed, could substantially eviscerate the reproduction and public performance rights. The growing number of decisions rejecting a "making available" right attests to some difficulties in adapting the distribution right to online exploitation. By contrast, one bright spot for authors appears in the area of moral rights, in which digital media may provide a means to make at least some authors' attribution interests enforceable. Because the decisions emanate from lower courts, including first-level courts, it is too soon to discern whether US copyright law is adopting a constricted conception of the scope of the economic rights under copyright, and if so, whether the decisions betoken an evolving (if often unarticulated) determination that copyright prerogatives should yield to technological preferences. In either event, the analyses and results contrast with solutions adopted in the European Union, and, in some instances, may be in tension with the US' international obligations.

Abstract:
This Comment, after a brief review of the nature of the orphan works problem and prior attempts to resolve it in the US, will analyze the current bills' provisions, both with respect to the limitation of remedies that constitutes the proposals' centerpiece, and to the conditions required to qualify for the limitation. I will also compare the US proposals with current European initiatives, and will assess the compatibility of the US proposals with international treaty norms, as well as the cross-border consequences of inconsistent US and EU orphan works regimes. I will conclude with some suggestions for amending the US proposals to enhance their international compatibility and to reconcile the interests of users more fully with those of the works' creators.

Abstract:
The US Supreme Court in its 2003 decision in Dastar v. Twentieth Century Fox, construing the Lanham Federal Trademarks Act, deprived authors of their principal legal means to enforce attribution rights in the US. I have elsewhere criticized the Dastar Court's analysis, and have urged amending the Copyright Act to provide express recognition of the attribution right. This time, however, I propose to reconsider the foundation for the attribution right; I draw on literary and historical sources to supplement legal arguments concerning the meaning of the author's name. I will suggest that, contrary to the usual characterization of this right as flowing from the creative act, the attribution right also properly derives from trademark law, because the author's name gives her work a brand image that informs consumers' choices of literary and artistic works.

In trademark law, the brand name identifies the entity that controls the production of the goods, who is responsible for their quality. Translated to works of authorship, this would mean that the act warranting name credit is that of controlling the carrying out of the creation, rather than of creation as such. In copyright, however, the same concept could logically lead to depriving any employed creator, as well as a fair number of freelancers, of any right to impose their names on their works, because the employer or commissioning party will usually have the last word regarding the form or content of the creation. It is therefore necessary to propose a more nuanced approach: if the creator has enjoyed autonomy in the creative process, even if the work was made on demand, the creator has engaged in intellectual labor that justifies treating the creator as the 'source' of the work. Any other approach would end up denying the role of creativity in copyright. But, as this Essay proposes to show, to reject all trademark-based rationales for attribution rights leads to other paradoxes.

Abstract:
In Dastar Corp. v. Twentieth Century Fox Film Corp. Justice Scalia colorfully warned against resort to trademarks law to achieve protections unattainable by copyright, lest these claims generate "a species of mutant copyright law that limits the public's 'federal right to "copy and to use,"' expired copyrights." The facts of that controversy, in which the claimant appeared to be invoking time-unlimited trademark protection to end-run the exhausted (unrenewed) copyright term in a motion picture, justified the apprehension that unbridled trademark rights might stomp, Godzilla-like, over more docile copyright prerogatives. Unfortunately, in the Court's eagerness to forestall Darwinian disaster in intellectual property regimes, it may have engaged in some unnatural selection of its own, mangling trademark policies in the process of conserving copyright. This essay will first consider how the (mis)application of copyright precepts has distorted trademarks law, then will take up happier examples of beneficent copyright influence. The first inquiry charts the near-demise of moral rights at the hands of copyright-(mis)informed trademark analysis. The second lauds the growing acceptance of copyright-inspired free speech limitations on trademark protection, exemplified by the various "Barbie" cases, and culminating in the "fair use" exemptions of the Trademark Dilution Revision Act of 2006.

Abstract:
This Chapter addresses the extremes of private ordering, and the extent to which the principal multilateral copyright instruments, the Berne Convention and the TRIPs Accord, limit the range of State responses to the problems encountered at the far ends of the copyright-contract spectrum. At one end, we encounter private ordering at its most aggressive, in which private parties enter into agreements (or, more likely, the stronger party coerces the weaker parties, who may be mass market consumers) to protect subject matter or rights excluded from the ambit of copyright's exclusivity. At the other end, the difficulties arise not from overweening sellers forcing their way with timid buyers, but from failure to find the seller at all. The buyers, would-be copyright exploiters, are unable to locate the right holders from whom to negotiate a license to use their works. In this case, no contract can be concluded, unless the State steps in for the absent right holder. In the first case, a contract has been concluded, but at a cost that the State could not exact were it to seek the same result through public ordering.

The analysis of Part I proceeds in three steps. First, a review of the relevant Berne-TRIPs provisions will identify and assess the "maxima." Second, consideration will be given to whether the prescriptive force of the maxima extends to extra-copyright means of achieving copyright-prohibited objectives. Finally, an inquiry will be made into whether the mandatory exclusions and restrictions apply only to foreign Berne Union works or whether the treaties can also be read to compel their domestic application. Part II shifts from private ordering to State-imposed licenses and other interventions that limit the exercise of exclusive rights. Where Part I inquires whether current multilateral instruments limit private parties' freedom effectively to expand the scope of copyright subject matter or rights, Part II examines whether those same instruments constrain State responses to systemic failures of private ordering by limiting the remedies available against the unauthorized exercise of otherwise exclusive rights. The example of failed private ordering that will be considered concerns the problem of "orphan works," where the inability to find right holders means that would-be exploiters cannot enter into private agreements with them.

This exploration of the extremes of the copyright-contract spectrum finds little prescriptive force in the Berne-TRIPs "maxima" with respect to private agreements to protect subject matter the treaties exclude from copyright's ambit. By contrast, Berne-TRIPs "minima" can meaningfully constrain a State's prerogative to impose compulsory licenses or limit remedies when private agreements cannot be concluded, for example because a willing buyer cannot find the seller (willing or otherwise). The minima should not, however, be regarded as an impediment to resolving the "orphan works" problem. Rather, attention to the minima should enable States to shape an orphan works regime which both permits the exploitation of unlocatable right holders' works, and fairly compensates those right holders who, notwithstanding a rigorously diligent but unsuccessful search, subsequently turn up and object to the uses made of their works.

Abstract:
The Constitution envisioned the exclusive rights of authors as a means to achieve the progress of knowledge. But the relationship of copyright to new technologies that exploit copyrighted works is often perceived to pit copyright against progress. As we tend to perceive progress as both inexorable and good, it would follow that if copyright is seen to conflict with the progress of technology, then the exclusive rights of authors should yield to the greater good of broader public dissemination of works of authorship. Recent legislation and caselaw have instead enhanced copyright owner control over new technologies of dissemination. Does this mean that our copyright laws are moving in the wrong direction?

This article suggests that the relationship of copyright and technology is more nuanced than it might first appear. History shows that when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement. But, when copyright owners seek to participate in and be paid for the new modes of exploitation, the courts, and Congress, appear more favorable to the proposition that when the new market not merely supplements but also rivals prior markets, copyright owners should control that new market.

With respect to current, Internet-related technologies, both courts and Congress seem to focus more on the role of copyright control in developing potential new markets than on the harm a lack of control would bring to old ones. This supportive approach derives from a perception that the unlicensed (and often unpaid) distribution of works over the Internet competes unfairly with the copyright owner's ability to avail itself of new markets for digital communication of works, and that this competition will ultimately lead to less rather than more public availability of works of authorship.

But, even assuming that copyright owners can exercise effective control, is this power misplaced if it primarily benefits industrial-strength copyright owners, as opposed to authors themselves? The current debate over copyright control focuses on perceived or potential overreaching by powerful intermediaries; the prospects for authors most often are overlooked. Greater author control not only enhances the moral appeal of the exercise of copyright, it also may offer the public an increased quantity and variety of works of authorship, as authors whom the traditional intermediary-controlled distribution system may have excluded now may avail themselves of digital media and accompanying copyright controls directly to propose to the public (and be compensated for) their creations.