Category Archives: Academia

The idea/expression dichotomy in Chinese copyright law

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Shourin Sen - 21 April 2010 – 9:00 am
Filed under Academia

Stephen McIntyre, a 3L at Duke Law School, has posted a nice piece of scholarship on the idea/expression dichotomy in Chinese copyright law. The abstract:

The idea/expression dichotomy, which holds that copyright protection extends only to expression, but not to ideas, is internationally recognized as a basic principle of copyright law. Yet despite the doctrine’s fundamental importance, China has not codified it in its general copyright statute. This legislative failure threatens to undermine the public-oriented goals of copyright and presents a dilemma to Chinese courts, which are not authorized to make or develop doctrine through recognition of judicial precedent.

This Article provides the first in-depth study in English of the idea/expression dichotomy in Chinese copyright law. It demonstrates that, even though the doctrine is not codified, it is widely acknowledged among Chinese academics and regularly applied in Chinese courts. The doctrine has faced linguistic, cultural, and conceptual challenges in China, and early court decisions left much to be desired. Nonetheless, an analysis of recent judicial opinions reveals that modern courts understand the idea/expression dichotomy and apply it in a reasonably coherent and defensible manner. Their exposition of the doctrine is largely, although not entirely, consistent with its underlying purpose of promoting free speech and safeguarding the public domain.

The courts’ relative success in filling this statutory hole suggests that Chinese judges play an underappreciated, but crucial, lawmaking function. This finding in turn raises intriguing questions as to the authority and function of China’s judicial system generally.

On the first copyright suit under the Statute of Anne

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Shourin Sen - 15 April 2010 – 1:58 am
Filed under Academia

H. Tomás Gómez-Arostegui, Associate Professor of Law at Lewis & Clark, has posted an article on SSRN about the first copyright suit brought under the Statute of Anne. The article, titled The Untold Story of the First Copyright Suit Under the Statute of Anne in 1710, contains transcriptions of court documents from the case:

This is the story of Tonson v. Baker, the first copyright suit brought under the Statute of Anne in 1710. Filed in the Court of Chancery three months after the statute went into effect, the case pitted the most famous publisher of the day against a gang of notorious book pirates. The case was never reported, but it has now been pieced together using over 100 manuscript records marshaled mainly from archives in London, England, and from hundreds of other primary sources. After recounting the suit and the circumstances surrounding it, this Article uses Tonson v. Baker as a launching pad to demonstrate how copyright history can remain doctrinally relevant today. The subject of my critique is the Supreme Court’s decision in Feltner v. Columbia Pictures Television, Inc., which concerned the constitutional right to a jury trial for statutory damages under the Copyright Act of 1976. The Article closes by providing transcriptions of the manuscript court documents from Tonson.

On the intellectual property interests of the indigenous peoples of Turkey and Iraq

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Shourin Sen - 11 February 2010 – 9:00 am
Filed under Academia

Hannibal Travis, Assistant Professor of Law at Florida International University, has posted a new paper on SSRN that looks fascinating. The paper addresses the plight of indigenous peoples in Iraq and Turkey and suggests four reforms to remedy the “violations of indigenous people’s rights”:

The U.N. Declaration on the Rights of Indigenous Peoples requires states to provide an effective remedy to indigenous peoples deprived of their cultural, religious, or intellectual property (IP) without their free, prior and informed consent. The Declaration could prove to be important safeguard for the indigenous peoples of Iraq and Turkey, the victims for centuries of massacres, assaults on their religious and cultural sites, theft and deterioration of their lands and cultural objects, and forced assimilation. These peoples, among them the Armenians, Assyrians, Greeks, and Yezidis of Turkey and Turkish-occupied Cyprus, and the Armenians, Assyrians, Yezidis, and Mandaeans of Iraq, have lost more than two-thirds of their peak populations, most of their cultural and religious sites, and thousands of priceless artifacts and specimens of visual art.

The European Union has probed these violations of indigenous people’s rights as part of the process of bringing Turkish laws and policies into compliance with European human rights standards. The United States has investigated violations of the rights of Iraq’s indigenous peoples in reports issued by the various executive agencies and legislative committees.

My paper will summarize the results of these inquiries, and propose four reforms. First, restitution or compensation should be implemented for the widespread destruction of indigenous peoples’ cultural and intellectual properties by previous Turkish and Iraqi regimes. Second, efforts to promote the security of indigenous peoples’ surviving intellectual and cultural patrimony must be adopted. Third, transnational corporations and other large enterprises such as museums and publishers should respect the rights of indigenous people to protect, access, and use their cultural and intellectual property held outside of Turkey and Iraq. Fourth, policies within Turkey and Iraq that restrict the preservation and transmission of indigenous cultural and intellectual manifestations must be reformed or abolished.

The only thng better than one symposium on intellectual property?

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Shourin Sen - 29 December 2009 – 9:00 am
Filed under Academia

Two symposia! Happy holidays to all and my apologies for writing intermittently over the past month. A friend of the program has been nice enough to draw my attention to two new law review symposia on intellectual property, each of which features a number of appetizing articles.

The first is from Boston College Law Review:

Boston College Law Review, Issue 50:5 (November 2009)
Publicity, Privacy, and Intellectual Property Meet the First Amendment

Forward

Mary-Rose Papandrea, Where Intellectual Property and Free Speech Collide, 50 B.C. L. Rev. 1307 (2009) [PDF]

Symposium Articles

Lauren Gelman, Privacy, Free Speech, and “Blurry-Edged” Social Networks, 50 B.C. L. Rev. 1315 (2009) [PDF]

Roberta Rosenthal Kwall, A Perspective on Human Dignity, the First Amendment, and the Right of Publicity, 50 B.C. L. Rev. 1345 (2009) [PDF]

Lyrissa Barnett Lidsky, Anonymity in Cyberspace: What Can We Learn from John Doe?, 50 B.C. L. Rev. 1373 (2009) [PDF]

David S. Olson, First Amendment Interests and Copyright Accommodations, 50 B.C. L. Rev. 1393 (2009) [PDF]

Elizabeth A. Rowe, Trade Secret Litigation and Free Speech: Is It Time to Restrain the Plaintiffs?, 50 B.C. L. Rev. 1425 (2009) [PDF]

Rebecca Tushnet, Fighting Freestyle: The First Amendment, Fairness, and Corporate Reputation, 50 B.C. L. Rev. 1457 (2009) [PDF]

Alfred C. Yen, A First Amendment Perspective on the Construction of Third-Party Copyright Liability, 50 B.C. L. Rev. 1481 (2009) [PDF]

Diane Leenheer Zimmerman, Money as a Thumb on the Constitutional Scale: Weighing Speech Against Publicity Rights, 50 B.C. L. Rev. 1503 (2009) [PDF]

Notes

Igor Helman, Spam-A-Lot: The States’ Crusade Against Unsolicited Email in Light of the CAN-SPAM Act and the Overbreadth Doctrine, 50 B.C. L. Rev. 1525 (2009) [PDF]

Harriet A. Hoder, Supervising Cyberspace: A Simple Threshold for Public School Jurisdiction over Students’ Online Activities, 50 B.C. L. Rev. 1563 (2009) [PDF]

Leigh Tinmouth, The Fairness of a Fair Trial: Not Guilty Pleas and the Right to Effective Assistance of Counsel, 50 B.C. L. Rev. 1607 (2009) [PDF

The second, from William and Mary Law Review:

William and Mary Law Review, Issue 51:2 (November 2009)

Boundaries of Intellectual Property Symposium

Trotter Hardy, Introduction

Dan L. Burk and Brett H. McDonnell, Trademarks and the Boundaries of the Firm

Jason Mazzone, Administering Fair Use

Pamela Samuelson and Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform

Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions

Jane Winn and Nicolas Jondet, A New Deal for End Users? Lessons from a French Innovation in the Regulation of Interoperability

Margo A. Bagley, The New Invention Creation Activity Boundary in Patent Law

John F. Duffy, Rules and Standards on the Forefront of Patentability

Mark A. Lemley, Distinguishing Lost Profits from Reasonable Royalties

Michael J. Meurer, Patent Examination Priorities

Graeme B. Dimwoodie, Developing a Private International Intellectual Property Law: The Demise of Territoriality?

Brett Frischmann, Spillovers Theory and its Conceptual Boundaries

Laura A. Heymann, How to Write a Life: Some Thoughts on Fixaiton and the Copyright/Privacy Divide

Mark P. McKenna, An Alternate Approach to Channeling?

Online Response

Steven Hetcher, A Response to Rebecca Tushnet’s Economies of Desire

Wu on fair use and the Fairey Hope image

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Shourin Sen - 2 November 2009 – 9:00 am
Filed under Academia, Fair Use

Tim Wu, Professor of Law at Columbia and blogger, wrote an article for Slate last week titled “Is There ‘Hope’ for Shepard Fairey? How does fair-use law work, anyway?” The article strikes me as good vehicle to explain fair use to people who are just starting to explore copyright in that it is sufficiently wonky to dig beneath the surface of a sometimes murky issue, but at the same, written in prose that is geared towards a broader audience. Wu explains fair use through  situational categories, similar to the type suggested in Pamela Samuelson’s work Unbundling Fair Use:

What counts as a “good reason”? In addition to our two examples, take a look at what has been declared fair use by courts or legislatures. They include:

  • Quotations of reasonable length
  • Parody (but not satire)
  • Use in news reporting
  • Time-shifting (recording TV for later viewing)
  • Thumbnailing (resizing) for image search engines
  • Reverse-engineering for a new operating platform (figuring out what you need to do to write a game that works on a Sony Playstation)
  • Limited copying for classroom or educational use

Wu proceeds to pin down why so many copyright pundits are fascinated by the Associated Press-Shepard Fairey copyright dispute, at least before the recent revelations about the assertions in Fairey’s complaint: It presents a new category that has yet to be evaluated:

Shepard Fairey’s case, setting aside his recent troubles for a moment, is one of these new areas. To “Warholize” someone else’s photo (if that’s the right verb) doesn’t fall within an existing category of fair use. So the question is whether it should.

Wu ends by explaining why the four factors Judge Story used in Folsom v. March, now embodied in law in 17 U.S.C. 107, often seem to play a marginal role when courts evaluate fair use today, outside of the context and era of the opinion:

Oddly enough—and, to my mind, for no particularly good reason—other thoughts of Story’s from 1841 on fair use remain the law. In Story’s time, the Supreme Court heard a copyright dispute over an abridgment of a long biography of George Washington. Story wrote “we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” .  .  .

Is the [Hope image] fair use? Odds are, Story’s general principles didn’t answer the question for you. More probably, you have a gut reaction of some kind, which is, of course, how judging generally works—as Justice Oliver Wendell Holmes once put it, judges decide first and write their reasons later.

The China-Intellectual Property Rights Enforcement Dispute And the Freedom of Expression

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Shourin Sen - 28 October 2009 – 9:00 am
Filed under Academia, Berne

Tomer Broude, Senior Lecturer at the Hebrew University of Jerusalem, has posted an article at SSRN titled “It’s Easily Done: The China-Intellectual Property Rights Enforcement Dispute And the Freedom of Expression.”  The article presents a provocative analysis of  the U.S.-China WTO intellectual property dispute.  A paragraph from the conclusion:

In China-IPR, the freedom of expression and trade-related intellectual property rights might have shared the same circumstantial space, but they did not make legal eye contact, let alone conduct a civilized juridical exchange. If there was such a meeting, it is not apparent from the Panel Report, and it is effortlessly denied. The Panel did not consider the human rights implications of its decision, either explicitly or implicitly. Indeed, it was not requested to do so by the US as complainant, nor was it encouraged to do so by any of the third-parties. This is reflective of the reluctance of the WTO’s Membership’s to integrate with non-WTO law, and the dispute settlement system’s consequent constraints in engaging with it. In this article I have not set out to either present or advocate an alternative approach; what is striking and noteworthy, however, is the ease with which this indifference to human rights law can be enacted by parties and Panels. To be sure, this is not necessarily a bad thing, and this exposition is not a judgmental one. Trade disputes do not exist in a political vacuum, and the WTO does have to consider its effectiveness in the area of trade law, and the continued legitimacy of its dispute settlement process among Members. However, the analysis shows that this indifference is not necessarily benign in its real implications for human rights.

Monday Copyright Roundup

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Shourin Sen - 19 October 2009 – 9:00 am
Filed under Academia, Daily Copyright Roundup, News, Termination

Doug Lichtman has released a new podcast in his IP Colloquium series. The details:

Title: Can Content Survive Online?

Guests: Brad Smith (General Counsel, Microsoft); Scott Martin (Executive Vice President, Paramount Pictures); Dan Cooper (Vice President of Business & Legal Affairs, MySpace).

Description: The music, publishing and motion picture industries are each today struggling to identify new business models that might replace existing mechanisms for funding professional content. In this edition of the Intellectual Property Colloquium, we consider the legal and strategic roadblocks that might be standing in the way. Guests include: Brad Smith, General Counsel, Microsoft; Scott Martin, Executive Vice President, Intellectual Property, Paramount Pictures; and Dan Cooper, Vice President, Legal & Business Affairs, MySpace. UCLA law professor Doug Lichtman hosts.

O‘Melveny and Myers attorneys Christopher Murray and Paul Iannicelli have posted an article at Mondaq and their firm’s website on how the Copyright Act’s termination provisions may impact I.P. transactions. A snipit:

Although [Sections 203 and 304 of the]  Copyright Act seem reasonably clear on their face, it is often the case that in actual application they can become quite complicated. As the judge in the Siegel case noted, “The 1976 Copyright Act contains many intricate formalities that an author (or his or her heirs) must navigate to successfully terminate” a grant. As one example, both Sections 203 and 304 provide that a grant can be terminated when the statutory right ripens “notwithstanding any agreement to the contrary,” in order to prevent an unsuspecting author, or one with little leverage, from waiving the right at the time of the grant or before its value can accurately be measured. But what if the author or his heirs have subsequently entered into an agreement with the grantee after the work has been exploited, in a manner that takes into account the demonstrated value of the work? Should those be considered “agreements to the contrary” that have no bearing on the validity of the termination right? Or should they be upheld as waiving the termination right, on the basis that they have effectively fulfilled the public policy of providing the author or his heirs the chance to re-negotiate from a position of knowledge and possibly strength?

Robin S. Lee, an Assistant Professor of Economics at the Stern School of Business, New York University, and Tim Wu, Professor of Law at Columbia University Law School have posted a new article at SSRN titled Subsidizing Creativity Through Network Design: Zero Pricing and Net Neutrality. The abstract:

Today, through historical practice, there exists a de facto ban on termination fees – also referred to as a “zero-price” rule (Hemphill, 2008) – which forbids an Internet service provider from charging an additional fee to a content provider who wishes to reach that ISP’s customers. The question is whether this zero-pricing structure should be preserved, or whether carriers should be allowed to charge termination fees and engage in other practices that have the effect of requiring payment to reach users. This paper begins with a defense of the de facto zero-price rule currently in existence. We point out that the Internet, as an intermediary between users and content providers, exhibits pricing dynamics similar to other intermediaries in “two-sided markets.” In particular, we posit that the Internet’s absence of payments from content creators to users’ ISPs facilitates the entry of content creators. In that respect, the rule provides an alternative implementation of the policy goals provided by the intellectual property system and achieves functions similar to copyright and patent law. The rule also helps avoid the problems of Internet fragmentation, in which content providers who do not reach agreements with ISPs cannot access all customers, and consumers on a single ISP are foreclosed from processing their content.

Samuelson and Sheffner on Due Process challenges to peer-to-peer statutory damages awards under Gore

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Shourin Sen - 13 October 2009 – 9:00 am
Filed under Academia, Damages

PENNumbra, the University of Pennsylvania Law Review’s ezine, has published a point-counterpoint by Pamela Samuelson and Ben Sheffner on whether the recent peer-to-peer statutory damages awards violate the Due Process clause of the Constitution, as interpreted in BMW v. Gore. Readers here may recognize Pamela Samuelson from her article with Tara Wheatland, Statutory Damages in Copyright Law:  A Remedy in Need of Reform, and Ben Sheffner from his blog Copyrights and Campaigns.

I’d be remiss if I didn’t mention the form of the essays: Both run under two thousand words and remind me of some of the delightfully short writings found in some European IP journals. PENNumbra is a forum that, in this case, offers a nice middle-ground between full length journal essay and blog post.

Some clips from the series:

Samuelson said:

The only plausible explanation for the outlandishly large jury awards against Thomas-Rasset and Tenenbaum was the jury’s desire to punish them for the sins of all file sharers at the direct or indirect urging of the recording industry plaintiffs.  See Pamela Samuelson & Tara Wheatland, Statutory Damages in Copyright Law:  A Remedy in Need of Reform, 51 Wm. & Mary L. Rev. (forthcoming 2009) (manuscript pt. I-B), available at http://ssrn.com/abstract=1375604 (explaining that courts and commentators are increasingly recognizing that statutory damage awards, especially at the high end of the range, are punitive in intent and punitive in effect).  Under the Supreme Court’s due process jurisprudence, juries seem to be punishing these individuals for the acts of millions of other file sharers who are “strangers to the litigation” on behalf of copyright owners who are also “strangers to the litigation” as to copyrighted works that are not before the court.  Williams, 127 S. Ct. at 1063 (“[T]he Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.”).  Because there are insufficient constraints on jury awards of statutory damages, courts should draw upon the Court’s due process jurisprudence by reducing grossly excessive statutory damage awards in peer-to-peer music file-sharing cases either to the $750 minimum, which seems to have become the norm in the reported cases, or to something much closer to the minimum.  See, e.g., Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) (directing de novo review of excessive jury awards).

Sheffner said:

. . . Gore guideposts two and three don’t work at all with copyright statutory damages. In many copyright cases (Thomas-Rasset and Tenenbaum included), it is impossible to compare actual to statutory damages because, as noted above, it is difficult or impossible to measure actual damages. Indeed, statutory damages exist in part to relieve copyright owners of the burden of proving up actual damages where, as a practical matter, they cannot. See F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231 (1952). And it makes no sense to speak of comparing the actual damages with “the civil or criminal penalties that could be imposed for comparable misconduct,” Gore, 517 U.S. at 583; statutory damages are the “civil… penalties” that Congress has chosen to impose on copyright infringers. If we’re going to debate the constitutionality of statutory damages, we’re going to have to do so under the much more deferential standard set forth in St. Louis, Iron Mountain & Southern Railway v. Williams, 251 U.S. 63 (1919)—under which, as far as I am aware, no award has ever been invalidated.

Reasonable people can disagree over the proper amount of statutory damages for individual non-profit infringers like Thomas-Rasset and Tenenbaum. I, for one, would likely be willing to trade a significantly lower range of available damages for a cheap and streamlined process for adjudicating such cases. See, e.g., Mark Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 Stan. L. Rev. 1345 (2004) (“Another way to reduce the cost of enforcement is to create some sort of quick, cheap dispute resolution system that enables copyright owners to get some limited relief against abusers of peer-to-peer systems….”). But these are essentially legislative choices.

Newly founded Harvard Journal of Sports & Entertainment Law is soliciting submissions

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Shourin Sen - 7 October 2009 – 12:12 am
Filed under Academia

Ashwin Krishnan, the Editor-in-Chief of the Harvard Journal of Sports & Entertainment Law, sends word that the Journal is ramping up its operations in preparation for its first issue. The Journal is actively soliciting submissions if any of you are sitting on a work. Congratulations and best wishes go out to the students at the JSEL who have no doubt worked hard on the launch:

September 29, 2009

On behalf of the editorial board, it is my distinct pleasure to announce the formation of the Harvard Journal of Sports and Entertainment Law (JSEL).  JSEL will provide the academic community, the sports and entertainment industries, and the broader legal profession with scholarly analysis and research related to the legal aspects of the sports and entertainment communities.

JSEL, published under the auspices of Harvard Law School, is accepting articles, essays, book reviews, notes, and comments regarding legal and/or public policy issues from academics and legal practitioners for its upcoming inaugural issue in Spring 2010.  JSEL is one of the few journals in the United States that focuses exclusively on legal topics related to sports and entertainment.

As you are probably aware, legal topics that affect sports and entertainment include antitrust law, civil procedure, constitutional law, contract law, corporate law, copyright law, labor law, and real estate law.  In addition, there are many other legal topics that have an impact on the sports and entertainment industries, or otherwise have an application to sports and entertainment.

Submissions are being accepted on a rolling basis.  To be considered for our first issue, due to be published in Spring 2010, please send completed submissions no later than November 15, 2009.  An indication of your interest before that date would also be greatly appreciated.

All submissions must be sent to Josh Podoll, Submissions Editor, as an attached Microsoft Word document via email to jselsubmissions@gmail.com.  Please visit our website for further details regarding the submissions process at www.HarvardJSEL.com.  Also, please feel free to contact Josh regarding any questions you may have concerning citation format, topic, or other issues involving the submissions process.  If you know of other scholars, practitioners, or students whose work seems appropriate for our journal, please encourage them to submit their work to JSEL.

We look forward to receiving your submissions!

Sincerely,

Ashwin Krishnan    Josh Podoll

Editor in Chief     Submissions Editor

Copyright at the Supreme Court this week

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Shourin Sen - 5 October 2009 – 9:00 am
Filed under Academia, Complete Preemption, Importation, Jurisdiction, News, Registration, Supreme Court

This is big week for copyright at the Supreme Court. The Court will hear oral arguments in the twenty-year legal saga Reed Elsevier v. Muchnick on Wednesday. On that note, Emily M. Bass, the attorney who represented one of the two plaintiff groups in Tasini, has passed along word about an article she has posted at SSRN. The abstract:

‘Catch 411:’ Does Section 411 of the Copyright Act Restrict the Subject Matter Jurisdiction of Federal Courts Over Copyright Actions?

This commentary examines an issue that will soon be argued before the United States Supreme Court: whether 17 U.S.C. §411′s registration requirement restricts the subject matter jurisdiction of the federal courts over copyright infringement actions. The Second Circuit found that courts lack jurisdiction to adjudicate claims alleging the infringement of unregistered works. The issue of whether courts have jurisdiction over such claims is of tremendous importance: The U.S.’s collective intellectual product is perhaps its greatest asset. Since unregistered works are as susceptible to mass electronic infringement as registered works, and arguably much more numerous, a decision affirming the Second Circuit would deny the country effective means of defending key IP. This commentary examines the statutes involved, arguments that have been made and the Second Circuit Opinion. It poses four solutions to §411′s supposed jurisdictional conundrum and concludes that federal courts unquestionably possess jurisdiction over unregistered claims.

I will post a longer writeup tomorrow that I have been sitting on for the last couple of months. The post will look at how complete preemption should color our view on whether registration is a jurisdictional requirement. I know what all of you (or at least six of you) are thinking: the only way to kick a discussion of obscure jurisdictional issues up to eleven is to talk about complete preemption. It’s like adding bacon.

Today may be the day we hear whether the Supreme Court will grant cert in Omega SA et al v. Costco Wholesale Corporation. The Supreme Court has in the past released cert decisions for cases they consider during their fall long conference on the following Monday. The appeal was scheduled for conference on September 29, so that would put today as the date we would be likely to hear.

Costco filed a supplemental brief on September 28 (that addressed the S.D.N.Y.’s September 25 decision in Pearson Education, Inc. v. Ganghua) so the cert decision could be delayed.