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Abstract:
Many participants in the music industry consider unauthorized transmissions of music files over the Internet to be theft of their property. Many Internet users who exchange music files reject this characterization. Prompted by the dispute over unauthorized music distribution, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing music making in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle Ages, when musicians' guilds enjoyed the exclusive right to perform music in medieval cities, but that the concept of music as a form of property was not established until early music publishers received exclusive rights in their publications during the Renaissance. The Article concludes with thoughts about how this history should influence the way we address the current controversy concerning uses of music on the Internet.

Copyright, Legal History, Music, Property

Abstract:
The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another's copyrighted expression under certain circumstances. The doctrine's extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another's copyrighted work to be a fair use. Like a private letter ruling from the IRS or a 'no action' letter from the SEC, a favorable opinion would immunize only the petitioner from copyright liability for the proposed use, leaving the copyright owner free to challenge the same or similar uses by other parties. The copyright owner would receive notice and an opportunity to challenge a petition. Fair Use Rulings would be subject to administrative review in the Copyright Office and to judicial review by the federal courts of appeals. The Article closes with discussion of alternative approaches to fixing fair use.

copyright, fair use, rules and standards, advisory opinions, free speech

Abstract:
This symposium contribution examines the disintermediating and reintermediating roles played by Creative Commons licenses on the Internet. Creative Commons licenses act as a disintermediating force because they enable end-to-end transactions in copyrighted works. The licenses have reintermediating force by enabling new services and new online communities to form around content licensed under a Creative Commons license. Intermediaries focused on the copyright dimension have begun to appear online as search engines, archives, libraries, publishers, community organizers, and educators. Moreover, the growth of machine-readable copyright licenses and the new intermediaries that they enable is part of a larger movement toward a Semantic Web. As that effort progresses, we should expect new kinds of intermediaries that rely on machine-readable law to emerge.

Creative Commons, copyright, Semantic Web, XML, machine-readable

Abstract:
Inspired by passionate contemporary debates about music copyright, this Article investigates how, when, and why music first came within copyright's domain. Ironically, although music publishers and recording companies are among the most aggressive advocates for strong copyright in music today, music publishers in eighteenth-century England resisted extending copyright to music. This Article sheds light on a series of early legal disputes concerning printed music that yield important insights into original understandings of copyright law and music's role in society. By focusing attention on this understudied episode, this Article demonstrates that the concept of copyright was originally far more circumscribed than it is today and that music - which currently is treated as core copyrightable subject matter - presented a difficult case. A number of audiences will benefit from a better understanding of the struggle over music copyright, including scholars who advance general theories about the evolution of property rights and policymakers seeking to place the current disputes over music copyright in historical perspective.

music copyright, copyright law, property rights

Abstract:
Copyright law's default settings inhibit sharing and adaptation of creative works even though new digital technologies greatly enhance individuals' capacity to engage in creative conversation. Creative Commons licenses enable a form of conversational copyright through which creators share their works, primarily over the Internet, while asserting some limitation on user's right with respect to works in the licensed commons. More specifically, this chapter explains the problems in copyright law to which Creative Commons licenses respond, the methods chosen, and why the machine-readable and public aspects of the licenses are specific examples of a more general phenomenon in digital copyright law that will grow in importance in the coming years.

Copyright, Commons, Creative Commons, Property, Relevance

Abstract:
This symposium Article analyzes the Ninth Circuit's decision in A&M Records, Inc. v. Napster, Inc. After setting the stage with a comparison to the rise of cable television, and a description of the technologies underpinning Napster's service, the Article analyzes the doctrinal developments in the Ninth Circuit's opinion. The principal analytical points are that: (1) the court's definitions of "sampling" and "space-shifting" were overbroad, leading to oversimple fair use analysis; (2) the court's treatment of vicarious liablility for copyright infringement is doctrinally incoherent because it suggests that liability depends on whether a third party has "turn[ed] a blind eye" toward infringement or has exercised its supervisory power over the infringer to the "fullest extent"; and (3) the court's choice to sidestep analysis of the "service provider" safe harbors in Section 512 of the Copyright Act should have been better explained but was understandable given the state of the record.

Cyberlaw, Intellectual Property, Copyright, Napster

Abstract:
My claim in this symposium contribution is that the law and legal scholarship should be freely available on the Internet and that copyright law and copyright licensing practices should facilitate achievement of this goal. This claim reflects the combined aims of those who support the movement for open access law. This nascent movement is a natural extension of the well-developed movement for free access to primary legal materials and the equally well-developed open access movement, which seeks to make all scholarly journal articles freely available on the Internet. Legal scholars have only general familiarity with the first movement and very little familiarity with the second. In this contribution, I demonstrate the linkages between these movements and briefly outline the argument for open access law.

open access, copyright, legal scholarship

Abstract:
Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms.

This Article argues that reducing uniformity cost is the central problem for intellectual property policymaking. There are three approaches for reducing uniformity costs: (1) granting real options to obtain or maintain intellectual property rights (such as renewable terms); (2) using standards rather than rules to define rights, thereby making their application more context-sensitive; and (3) tailoring rights legislatively or judicially. This Article focuses on the ways in which current law deploys these approaches to reduce uniformity cost and argues that recent changes in the law have exacerbated the problem of uniformity cost.

Patent, copyright, intellectual property, law and economics, property

Abstract:
In eBay v. MercExchange, the Supreme Court correctly rejected a one-size-fits-all approach to patent injunctions. However, the Court's opinion does not fully recognize that the problem of uniformity in patent law is more general and that this problem cannot be solved through case-by-case analysis. This Essay provides a field guide for implementing eBay using functional analysis and insights from a uniformity-cost framework developed more fully in prior work. While there can be no general rule governing equitable relief in patent cases, the traditional four factor analysis for injunctive relief should lead the cases to cluster around certain patterns that often will have an industry-specific cast. This Essay identifies these patterns and summarizes the guideposts that courts and litigants should look for when conducting the traditional analysis in patent cases.

Patent, Intellectual Property, Injunction, uniformity cost, one-size-fits-all