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Abstract: U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court "considers just," and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against "willful" infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive. This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.
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 offers the author's preliminary thoughts about why copyright reform is needed, why it will be difficult to undertake, and why notwithstanding these difficulties, it may nonetheless be worth doing. It offers suggestions about how one might go about trimming the statute to a more managemable length, articulating more simply its core normative purposes, and spinning certain situation-specific provisions off into a rulemaking process. Thirty years after enactment of the '76 Act, with the benefit of considerable experience with computer and other advanced technologies and the rise of amateur creators, it may finally be possible to think through in a more comprehensive way how to adapt copyright to digital networked environments as well as how to maintain its integrity as to existing industry products and services that do not exist outside of the digital realm.
copyright, reform, computer technology, digital networks
Abstract: The Internet is unquestionably having a profound effect on many aspects of the social, cultural, economic, and legal systems of planet Earth. Indeed, advances in the Internet and in other global communications technologies make it possible to contemplate the development of a global information society. Such a society may offer many benefits to humankind, but constructing policies to enable and promote this information society presents significant challenges. Among the most difficult questions now confronting legal decisionmakers are these: Can existing laws successfully be applied to activities occurring via the Internet? Can existing law be adapted to regulate these activities? Are existing laws outmoded or inadequate? Are completely new laws needed to deal with Internet and other information technology developments? When old laws do not fit and cannot easily be adapted, it may be necessary to go back to first principles and consider how to preserve social and cultural values in the new context of the Internet. Decisions about the law of the Internet, whether carried out by judges, legislatures, or regulators, will have an important impact on the kind of information economy and information society that will emerge. This article offers some suggestions about how regulators might more wisely make policy choices to promote a global information society in which we would all like to live.
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 and European Union has not been fully successful. In the DMCA, Congress achieved a reasonable balance of competing interests in its creation of safe harbors for internet service providers. However, contrary to its apparent intention, Congress failed to achieve a similar balance of interests when establishing new rules forbidding circumvention of technical protection measures (TPMs) used by copyright owners to control access to and use of their works. The EU Copyright Directive spoke of a commitment to ensuring that certain public interest uses can be made of technically protected works but contains limits that seemingly undermine this commitment. As a result, national implementations of the Copyright Directive have not adequately facilitated public interest uses of technically protected content. We believe that practical judicial and administrative measures can and should be devised to implement the spirit of the WCT in both the U.S. and EU without reopening the contentious debates that engulfed the process leading up to enactment of the DMCA and the EU Copyright Directive. To this end, we propose adoption of a "reverse notice and takedown" procedure to help achieve some of the balance in anti-circumvention rules that the WCT endorsed, but which implementing legislation has thus far failed to deliver. Under this regime, users would be able to give copyright owners notice of their desire to make public interest uses of technically protected copyrighted works, and rights holders would have the responsibility to take down the TPMs or otherwise enable these lawful uses. A reverse notice and takedown regime would achieve for the anti-circumvention rules a comparable symmetry with the balance embedded in the ISP safe harbor rules. It would also effectuate the nascent, but not fully realized, legislative intent to permit public interest uses of technically protected digital content, while at the same time protecting copyright owners against circumvention of TPMs that would facilitate or lead to massive infringements. In the U.S., the most likely way to achieve this goal is through judicial interpretation of the anti-circumvention rules through case by case adjudication. In the EU, by contrast, member states could implement a reverse notice and takedown regime in the course of fulfilling their obligations under Article 6(4) of the Copyright Directive, which requires them to ensure that users of technically protected works can exercise certain public interest exceptions. Nations that have yet to implement the WCT may find our proposed reverse notice and takedown regime provides a far more balanced way to comply with the treaty than the approach being promoted by U.S. trade negotiators.
copyright, WIPO, Copyright Directive
Abstract: After U.S. accession to the Berne Convention in 1988, many scholars have expected an increasing convergence between U.S. and EU copyright law. Even though some developments in U.S. copyright law evidence a move towards the European model, this article concludes that deep differences will continue to exist between U.S. and EU copyright law, chiefly because of the influence of economic thinking on the scope of copyright law in the U.S. and the influence of the U.S. Constitution. The economic and constitutional underpinnings of U.S. copyright law give rise to a legal regime whose principles and purposes fundamentally differ in many respects from the 'author-centric' regimes of EU nations. Although the article deals with the historical moorings of U.S. copyright law, it offers numerous examples to demonstrate how economic and constitutional reasoning manifest themselves in modern judicial pronouncements on everything from copyright protection for computer programs to the unprotectability of unoriginal data compilations. These decisions have used economics and the Constitution to adapt U.S. copyright law to new technological challenges.
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 the corpus (the “dead souls” to which the title refers) would agree that the settling authors and publishers will truly represent their interests when setting terms for access to the Book Search corpus.
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 be considered to be merged, and copyright protection will be unavailable to merged elements). The idea/expression distinction predated Baker, and a close analysis of the Baker decision and of its progeny reveals that the principal contribution of Baker made to U.S. copyright law has been its exclusion of systems, processes, and other useful arts from the scope of copyright protection. The article demonstrates that Congress intended for section 102(b) of the Copyright Act of 1976 to codify the Baker exclusion of procedures, processes, systems, and methods of operation as well as the pre-Baker exclusion of high level abstractions such as ideas, concepts, and principles. The article contests the interpretation given to Baker by Professor Melville B. Nimmer in his famous treatise, and shows that the Supreme Court's decision in Mazer v. Stein is more consistent with the traditional understanding of Baker than with the Nimmer interpretation. Although the initial impetus to codify the Baker exclusion of systems and processes arose from a concern about the possible overprotection of computer programs by copyright, early software copyright caselaw mistakenly followed the Nimmer treatise's interpretation of section 102(b) as though it codified only the distinction between abstract ideas and expressions. Over time, courts came to perceive that Baker and section 102(b) had broader implications, requiring that functional elements of programs, such as processes or systems embodied in them, should be outside of copyright's scope. The final section of the article shows that although courts in some cases, such as those involving parts numbering systems, have managed to reach sound results by invoking other copyright doctrines (such as lack of originality), courts should have engaged in straightforward applications of section 102(b)'s exclusion of systems, as some more recent cases have done. The mistakenly narrow interpretation given to Baker by the Nimmer treatise has also led some courts to misconstrue section 102(b) by protecting coding systems and yoga sequences when these elements should be beyond the scope of copyright protection. The article calls for renewed attention to the eight words of exclusion in section 102(b) and to the policies that underlie those exclusions.
copyright, ideas, expressions, patents, public domain
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 on the same subject, published a photograph as part of a news story, made a time-shift copy of television programming, photocopied a document for submission as evidence in a litigation, reverse engineered a computer program to get access to interface information, cached websites to facilitate faster access to them, or provided links to images available on the Internet, just to name a few.
The wide array of fair use cases has led many commentators to complain that fair use is unpredictable. This Article argues that fair use law is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases tend to fall into common patterns, or what this Article will call policy-relevant clusters. The policies underlie modern fair use law include promoting freedom of speech and of expression, the ongoing progress of authorship, learning, access to information, truth-telling or truth-seeking, competition, technological innovation, and privacy and autonomy interests of users. If one analyzes putative fair uses in light of cases previously decided in the same policy cluster, it is generally possible to predict whether a use is likely to be fair or unfair. Policy-relevant clustering is not a substitute for appropriate consideration of the statutory fair use factors, but provides another dimension to fair use analysis that complements four-factor analysis and sharpens awareness about how the statutory factors, sometimes supplemented by other factors, should be analyzed in particular contexts.
Parts I through V mainly provide a positive account of how fair use has been adjudicated in a variety of contexts and suggestions about factors that should be given greater or lesser weight in certain fair use policy clusters. Its articulation of the policy-relevant clusters into which the fair use cases typically fall should not, however, be understood as attempting to limn the outer bounds of fair use or to foreclose the development of new policy-relevant clusters. Part VI offers a more normative account of fair use as an integral and essential part of U.S. copyright law that can, in fact, encompass the wide range of fair uses discussed in the Article. It also recaps the key lessons from this Article's qualitative assessment of the fair use case law and points to some encouraging trends in recent cases.
copyright, fair use, free speech, free expression, innovation, competition
Abstract: We offer description and analysis of the 2008 Berkeley Patent Survey, summarizing the responses of 1,332 U.S.-based technology startups in the biotechnology, medical device, IT hardware, software, and Internet sectors. We discover that holding patents is more widespread among technology startups than has been previously reported, but that the patterns and drivers of holding patents are industry and context specific. Surprisingly, startup executives report in general that patents are providing relatively weak incentives for core activities in the innovation process. Our analysis uncovers that the drivers of startup patenting are often associated with capturing competitive advantage, and the associated goals of preventing technology copying, securing financing, and enhancing reputation - although again these and other motives depend on firm and industry factors. We also find substantial differences in the roles played by patents for startups in the biotechnology and medical device sectors - where patents are more commonly used and considered important - as compared to those operating in the software and Internet fields - where they are less useful. Interestingly, venture-backed IT hardware startups tend to resemble those in health-related fields in terms of their use of and motives for patenting. We generally find a wide disparity between the patenting behavior of venture-backed technology startups and those that are not funded with venture capital. We also discover that, when choosing not to patent major innovations, startups often cite to cost considerations, although again the motives to forgo patenting differ according to firm and industry characteristics. The respondents to our survey also generally report that checking the patent literature and licensing patents from others is reasonably common, although there too results differ according to the context. Other findings are discussed.
Entrepreneurship, Patents, Innovation, Intellectual Property
Abstract: Consumers expect to be able to do at least as much with digital content as they have been able to do with analog content, and more. Yet, some copyright owners are using technical protection measures to thwart certain consumer uses of digital content, and rarely do they give effective notice to consumers about these technical restrictions. This article identifies six types of consumer harms that have occurred from inadequate notice, including lack of expected interoperability, privacy invasions, security vulnerabilities, anti-competitive lock-out as to compatible systems, risks of inadvertent anti-circumvention liability, and unanticipated changing terms and discontinued service. It discusses a range of options for responding to the notice inadequacy problem, from trusting the market to substantive regulation that would forbid use of certain kinds of TPM restrictions (such as those that invade user privacy). Because the market has yet to yield effective notice to consumers of TPM restrictions, the article recommends that the Federal Trade Commission investigate the deployment of TPMs in digital content and make recommendations for standard notices that should be provided to consumers about the TPM restrictions.
copyright, digital rights management, consumer protection
Abstract: Given the utilitarian rationale for copyright and the economic incentives this law aims to create for investment in intellectual labor, it is somewhat surprising that economic analysis has thus far played such a small role in copyright law and policymaking. This article suggests several reasons why economic analysis has had such a limited role in the past and why there may be resistance within the copyright policymaking community to giving economic analysis a more substantial role in the future. It goes on to give some examples of legislative uses of economic analysis to inform sound policy-making and of uses and misuses of economic analysis as a tool in interpreting the scope of copyright. The article predicts that economic analysis will have more influence in legislative, policy, and judicial interpretation of copyright in the future.
Abstract: Is there one public domain, or are there many public domains? The scholarly literature predominantly assumes there is only one, for references abound to "the public domain" in the singular. Yet, even a cursory review of this literature reveals that scholars sometimes define this term differently. So if there is only one public domain, but many definitions, perhaps one objective of scholarly discourse about the public domain should be to seek consensus on the one "true" definition. Professor James Boyle has provocatively suggested that there are many public domains, and has urged scholars to develop a rich vocabulary for distinguishing among them. This article considers benefits of accepting the existence of multiple public domains and ways in which discourse about public domains might be enriched thereby. Part II provides a synopsis of thirteen conceptions of the public domain found in the law review literature, explaining each, generally by reviewing the explication of it offered by its principal proponent or discoverer. Part III organizes the definitions by recognizing that they cluster around three main foci: the legal status of information resources, freedoms to use information resources, even if protected by IP rights, and accessibility of information resources. Part IV discusses advantages of recognizing multiple public domains, among which are that they illuminate important social values served by these domains and a plethora of strategies for preserving them and the values they serve. To avoid the risks of confusion, Part IV also proposes adjectives to help differentiate among public domain concepts.
public domain, intellectual property, commons, licenses
Abstract: Preliminary and permanent injunctions are routinely granted in trade secret cases without offending the First Amendment, and this is as it should be. In ordinary trade secret cases, injunctions merely require parties to abide by express or implicit agreements they have made, respect the confidences under which they acquired secrets, and refrain from wrongful conduct vis-a-vis the secrets. Occasionally, those who want to disclose trade secrets invoke the First Amendment as a defense to claims of trade secrecy misappropriation. Courts and commentators have taken varying positions on issues pertinent to these defenses, including whether trade secrecy law are categorically immune (or nearly so) from First Amendment scrutiny and whether preliminary injunctions forbidding disclosure of informational secrets should be considered prior restraints on speech. This article offers a set of principles for mediating the tensions that occasionally arise between trade secrets and the First Amendment. Part I seeks to explain why conflicts between trade secrecy law and the First Amendment have thus far been relatively rare. It discusses limiting principles of trade secrecy law that mediate most free-speech-related tensions likely to arise when someone wants to disclose information that another claims as a trade secret. Part II suggests that more conflicts between trade secret and First Amendment interests may occur, in part because of the increased use of mass-market licenses to keep information secret that would otherwise be lawful to acquire and disclose. It considers proposals to strengthen trade secret rights in response to threats to trade secrets posed by the global communications medium of the Internet. The stronger trade secret rights become, the more likely they are to come into conflict with First Amendment interests. Part III criticizes the California Supreme Court's decision in DVD CCA v. Bunner for, among other things, its implicit adoption of the categorical immunity theory and its reliance on DVD CCA's assertion of property rights in its secrets in rejecting Bunner's First Amendment defense. Part IV concludes that even though preliminary injunctions in informational trade secret cases are prior restraints, they are generally justified in ordinary cases. Yet the heavy presumption against prior restraints should apply to cases in which third parties who obtained the secret without wrongdoing seeks to disclose it publicly. Part IV considers a number of other First Amendment due process issues, such as whether the burden of proof in third-party disclosure cases should be higher than in the normal trade secret cases and whether appellate review of constitutionally relevant facts should be de novo when First Amendment defenses have been raised. Part IV proposes several principles to assist courts in grappling with First Amendment defenses in trade secrecy cases.
trade secrets, First Amendment, prior restraints, intellectual property
Abstract: The rise of the information economy has caused copyright law to become a new actor in the intellectual property rights and standards debate because standard-setting organizations (SSOs) increasingly claim copyrights in standards and charge substantial fees for access to and rights to use standards such as International Organization for Standardization (ISO) country, currency, and language codes and standard medical and dental procedure codes promulgated by the American Medical Association (AMA) and the American Dental Association (AMA). This article will consider whether standards such as these, especially those whose use is mandated by government rules, should be eligible for copyright protection as a matter of U.S. copyright law. Part I reviews several lawsuits that have challenged copyrights in numbering systems devised to enable efficient communication and will argue that the decisions upholding copyrights in the AMA and ADA codes were incorrectly decided in light of past and subsequent caselaw, the statutory exclusion of systems from copyright, and various policy considerations. Part II considers copyright caselaw and policies that have persuaded courts to exclude standards from the scope of copyright protection under the scenes a faire and merger of idea and expression doctrines. It also considers whether government mandates to use certain standards should affect the ability to claim copyright in those standards. Part III assesses whether SSOs need copyright incentives to develop and maintain industry standards they promulgate and whether arguments based on incentives should prevail over other considerations. It will also identify some competition and other public policy concerns about allowing private entities to own standards, particularly those whose use is required by law.
copyright, standards, codes, systems
Abstract: Justice John Paul Stevens is best known in the intellectual property field for his decision for the Court in Sony Corp. of America v. Universal City Studios, Inc. Sony is among the most significant IP decisions rendered by the Court during the three decades of Justice Stevens's tenure there because of its impact on the copyright and information technology industries. While Sony is known mainly for the safe harbor from copyright challenges that it established for technologies suitable for substantial non-infringing uses, this article will discuss the generativity of the Sony decision, that is, the impact the decision has had in a range of cases presenting very different facts and legal issues than the Court faced in Sony. Software reverse engineers, add-on software developers, Internet service and access providers, and Internet search engine firms have all relied on Sony in successfully defending against direct and indirect claims of copyright infringement. Sony is likely to continue to be significant in mediating disputes between copyright industries and creative information technology developers and users of information technology. The article asserts that Sony's generativity is due, in part, to the limited monopoly framework for analyzing copyright claims articulated by Justice Stevens in Sony, which contrasts starkly with the proprietarian framework used in Justice Blackmun's dissent.
copyright, intellectual property, secondary liability
Abstract: Many commentators and policymakers have recognized that patents on interfaces can be and sometimes have been exercised to block the development of interoperable technologies. Out of concern about the exclusionary power of such patents, they have proposed a wide array of legal and policy measures to ensure that interoperability can occur. This Article is the first comprehensive analysis of the twenty-some policy responses that have thus far been proposed or implemented to blunt the power of interface patents. This Article makes four main points. First, there is less need for strong regulatory measures, such as barring patents on interface innovations or treating the exercise of interface patents to block interoperability as misuse of the patents, than some commentators seem to believe. Second, insofar as interface patents do emerge as more serious impediments to interoperability than they have been to date, there are adequate policy responses in place in various countries that can be used to address them. Third, some tailoring of patent rules and patent reforms may be advisable in order to promote greater interoperability among ICT systems. Fourth, patents are often less of an impediment to interoperability than the secrecy of interface information, which may be difficult or impossible to reverse engineer, and changes in interfaces that may attend new versions or features of an ICT system. The Article explains why it would be difficult to bring about more interoperability by mandating greater disclosure of interface information or regulating what kinds of changes firms can make to their interfaces.
Abstract: This book chapter traces the strange odyssey of interfaces through various forms of intellectual property protection. Interface specifications were initially either public domain documents or protected as trade secrets, depending on whether or not they were published. For a time, it seemed as though sui generis protection would be the best way to deal with the interoperability challenges posed by programs, but then copyright became the norm for software protection. Whelan made it seem that interface specifications would be protectable by copyright law as program SSO. Altai and Sega, however, dashed those expectations. Software developers then shifted to patent protection for interfaces, as well as pinning their hopes on the enforceability of anti-reverse engineering clauses in software license contracts. Recent developments give hint of a new shift toward regulated licensing of patented interfaces. No other intellectual artifact has had a comparable tortuous journey through IP law.
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 presumed to be irreparable if plaintiffs have made out a prima facie case of infringement. This presumption cannot be squared with traditional principles of equity, as interpreted in numerous Supreme Court decisions, particularly eBay, Inc. v. MercExchange LLC, 547 U.S. 388 (2006).
While a presumption of irreparable harm is inappropriate in all copyright cases, it is particularly troublesome in cases involving transformative uses of existing works, such as parodies and remixes and mashups, because free expression and free speech interests of creative users are at stake and transformative uses cases often raise plausible non-infringement defenses. Indeed, if any presumption about harm is appropriate in transformative use cases, it should probably run in favor of irreparability of harm to the defendants’ free expression and speech interests under First Amendment case law which treats preliminary injunctions as presumptively unconstitutional prior restraints on speech.
copyright, preliminary injunctions, presumption of irreparable harm, transformative uses
Abstract: Intellectual property, contract, and tort laws likely have effects on levels of innovation in service sectors of the economy. Legal rules that are too strong or too strict may discourage investment in service innovation; yet, rules that are too weak or too loose may result in suboptimal investments in sound innovation. Intellectual property protections have traditionally been quite strong in protecting innovation in manufacturing sectors, but much less so in service sectors. Services have, for example, traditionally been unpatentable because they were perceived to be non-technological. Whether digital information services, such as web services, should be patentable is currently unsettled and highly controversial. Contract and tort rules are currently quite strict as to manufactured goods, but less so as to services. The emergence of digital information services raises questions about whether existing contract and tort rules governing goods or services should be applied to them, or whether some new legal rules are needed to promote innovation in digital information services and social welfare more generally.
intellectual property law, cyberspace law, torts and product liability law
Abstract: This essay considers positive, normative and political reasons for creating a map of the public domain and contiguous terrains. For far too many years, the public domain has either been invisible or been viewed in a negative way. By positively describing the contents of the public domain, it is possible to articulate normative reasons why the public domain is valuable to society. And by articulating the normative values of the public domain, it becomes possible to develop political strategies for protecting the public domain from undue incursions. The essay also considers also several criticisms that might be levied at the author's first effort at public domain mapmaking, including its U.S.-centricity. It shows how US-centric terminology can be purged from the map so that the map can become useful in an emerging international conversation about the public domain. The essay discusses a second problem, namely, that the contents of the public domain vary from nation to nation. An accurate international meta-map of its contents may be difficult or impossible to design, and yet the essay suggests how the meta-map might be constructed. A third problem the essay considers is that there is no universally accepted definition of the term "public domain." There may, in fact, be many definitions of the public domain, not just one. The essay demonstrates several mappings to depict different definitions. Fourth, the boundaries of the public domain may shift over time, as laws and policies affecting its contours change. To be accurate, a map of the public domain will need to be redrawn every time a significant legal change occurs. Yet this is also true for maps generally, and is not an insurmountable obstacle. Fifth, there are numerous murky areas surrounding the public domain that a conscientious map-maker may find difficult to depict. The essay discusses the contents of these murky areas and why a public domain map ought to have a sector for murky areas. Sixth, the term "map" draws upon real property metaphors that are already too prevalent in intellectual property debates. If the goal is to enrich public policy debates about the public domain, perhaps reinforcing the "property" metaphor is unwise. Yet, the essay concludes that this objection does not outweigh benefits that may come from such a map. Seventh, the public domain map arguably distorts the size and centrality of the public domain and contiguous IPRs. And yet, maps, by their nature, distort the phenomena they depict in order to highlight aspects of the phenomena that might otherwise be obscured. The essay explains why, notwithstanding these reservations, I persist in believing that mapping the public domain is a worthy endeavor and something akin to the maps of the public domain provided in the essay are useful policy tools. If one aspires to preserve the public domain through an international treaty, to take one example, one will need a rich conception of this domain, and a map may be a useful tool in developing consensus about protecting the public domain through a treaty. Maps are also useful in articulating various values that different parts of the public domain serve and why preserving the public domain is in the public interest.
Intellectual property, public domain, fair use, copyright
Abstract: This Story grows out of a study of the Supreme Court Record and other historical materials about the well-known 1880 copyright case of Baker v. Selden. Among the surprises the Story reveals are that Selden was not, as some have surmised, the author of a treatise on bookkeeping, nor was he the inventor of the now universally used T-account system of bookkeeping. Selden's books are better described as minor variants on one another, consisting of 20-some pages of bookkeeping forms with sample entries, a short preface, and an introduction. Most of the 650 words of text in the last book puff the merits of his system rather than explaining how to use it. Baker, not Selden, is mentioned in works on the history of bookkeeping, and Baker's books on bookkeeping (but not Selden's) are still available in various public and university libraries. Though burdened with thousands of dollars of debt, Selden's widow hired a prominent intellectual property lawyer to represent her in the lawsuit against Baker which charged him with pirating the Selden system. She believed she was owed damages (in today's dollars) of a quarter-million dollars a year from Baker and his customers. Baker probably lost at the trial court level because he hired an inexperienced young lawyer; Baker won before the Supreme Court in part because he was represented by a team of supple heavy-hitters. The most important lesson of this Story concerns the legal principle the Court was trying to promulgate. Although Baker v. Selden is widely cited as the genesis of the "idea/expression" distinction in copyright law, the Story shows that this distinction predated Baker. Nor is Baker the genesis of the "merger" doctrine (which holds that if an idea can only be expressed in one or a small number of ways, copyright law will not protect the expression because it has "merged" with the idea). The main objective of the Supreme Court's decision was to sharpen the distinction between authorship and invention. The complaint spoke of Selden as the author and inventor of several books and of a bookkeeping system. His lawyer kept speaking about its novelty in the state of the art. Selden's widow claimed exclusive rights not only to stop Baker from publishing competing books, but also to collect damages from all of Baker's customers for their use of the infringing system. That Selden had sought, but apparently not obtained, a patent on his bookkeeping system seems to have affected the Court. To clarify the proper roles of patent and copyright in protecting the fruits of intellectual labor, the Baker opinion introduced a new framework for analyzing copyright claims. It directed courts to consider whether the defendant had copied the author's description, explanation, illustration, or depiction of a useful art (such as a bookkeeping system) or ideas, or had only copied the useful art or ideas themselves. In the absence of a patent, the useful art depicted in a work, along with its ideas, could be used and copied by anyone, even in directly competing works. Any necessary incidents to implementing the art (e.g., blank forms illustrating use of the system) could likewise be used and copied by second comers without fear of copyright liability. The Baker opinion's rich analysis of the roles of copyright and patent in protecting intellectual creations has, over the past 125 years, spawned at least eight significant copyright doctrines, including four codified in the Copyright Act of 1976, as well as a few enduring controversies.
Copyrights, patents, intellectual property, software protection
Abstract: Scholarly discourse about the constitutional law of intellectual property will not die out after the Supreme Court's decision in Eldred v. Ashcroft, but only enter a new phase. Many significant constitutional questions remain open after Eldred, and Eldred opened up some new possibilities for constitutional challenges. Although Dastar v. Fox mainly presents a question of statutory interpretation about whether publishers of a derivative work of a public domain work must credit the original author of the work or face liability for reverse passing off, the case was argued in part on constitutional grounds. Those engaged in the debate about whether the public domain is a constitutionally significant interest will construe the Court's decision in constitutional terms. The result in Dastar may also have implications for constitutional challenges to legislation granting copyright in works that were for many years in the public domain due to failure to comply with U.S. formalities for copyright protection. The Court has repeatedly insisted that Congress cannot create intellectual property rights in public domain works in constitutionally inspired rulings. Eldred may have decided that Congress could extend the terms of existing copyrights, but it did not deal with the resurrection of dead copyrights, as the new cases do. Also much disputed is the constitutionality of database protection legislation proposed in Congress akin to the new intellectual property regime created in the EU that confers on publishers an exclusive right to control extraction and reuse of data from databases. The Court in Feist insisted that the U.S. Constitution required a creativity-based standard for copyright (and presumably for copyright-like) protection of databases. While the Supreme Court did not accept the extension of the principles of Feist for which Eldred argued, it did not abjure Feist. Hence, EU-style database protection may be unconstitutional. Eldred also suggests that higher First Amendment scrutiny may be required when assessing changes to the traditional contours of intellectual property law, such as EU-style database protection and the DMCA anti-circumvention rules, calling into question the Second Circuit's decision in Universal City Studios v. Corley. Even if such laws can surmount facial challenges to their constitutionality, the article gives examples of "as applied" challenges likely to be successful.
copyright, intellectual property, database protection, public domain, anti-circumvention, fair use, First Amendment
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 to internalize a higher proportion of the societal costs of personal data processing. However, granting individuals property rights in personal information is unlikely to achieve information privacy goals in part because a key mechanism of property law, namely, the general policy favoring free alienability of such rights, would more likely defeat than achieve information privacy goals. Drawing upon certain concepts from the unfair competition-based law of trade secrecy, this article suggests that information privacy law needs to impose minimum standards of commercial morality on firms engaged in the processing of personal data and proposes that certain default licensing rules of trade secrecy law may be adapted to protect personal information in cyberspace.
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