scholarly journals Breakout Session: New and Notable in Copyright Law. Presented by Nathaniel Edwards, counsel, Lewis, Roca, Rothgerber, and Christie.

2018 ◽  
Vol 2 (1) ◽  
Author(s):  
Susan E. Beck
Keyword(s):  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
Educational Institutions ◽  
Breakout Session ◽  
New Developments ◽  
Federal Case ◽  
Office Procedures

U.S. copyright law is a continually changing landscape, especially for educators and librarians. To help update those working in educational institutions, this report showcases new developments in federal case law regarding fair use. The three cases profiled show the courts current tendency to favor fair use. Other topics presented comprise new U.S. Copyright Office procedures for designating DMCA agents and ways to best respond to demand letters sent by photo licensing houses.

scholarly journals Retelling Copyright: The Contributions of the Restatement of Copyright Law

2021 ◽  
Vol 44 (3) ◽  
Author(s):  
Jeanne C. Fromer ◽  
Jessica Silbey
Keyword(s):  
Historical Context ◽  
Case Law ◽  
Copyright Law ◽  
Professional Standards ◽  
Law Reform ◽  
Court Decisions ◽  
The Past ◽  
Dramatic Criticism ◽  
Federal Case ◽  
The Subject

The provisions at issue in the draft Restatement of Copyright Law on which ALI membership will vote at ALI’s upcoming annual meeting are central to copyright doctrine and have been the subject of numerous court decisions over the past several decades of technological and industry change: originality, fixation, categories of copyrightable subject matter, the idea-expression distinction, and authorship and ownership.  This abundance of legal activity on copyright law demonstrates the value to the profession of this project retelling copyright.  In contrast to the dramatic criticism of this Restatement project alleging political capture or illegitimate law reform, the draft’s provisions are routine and straightforward.  They will surprise no one and are almost boring in their adherence to and synthesis of the copyright statute and judicial interpretations of it. Far from being radical or ill-advised, the Restatement of Copyright Law is a reasonable and welcome addition to the work of the ALI. Part I of this Article situates the current Restatement of Copyright Law in the historical context of other ALI projects, drawing parallels in their purposes, processes, and political tensions. Part II describes the controversy over a “retelling” of copyright law as misguided insofar as it fails to account for the practice of interpretation as part of the practice of law that is constrained by professional standards.  Part III describes the analysis and exposition of the provisions of the draft portions of the Restatement of Copyright Law presented to the ALI membership for discussion and vote this year as unremarkable but also beneficial, achieving the ALI’s goals of clarification and simplification of the sprawling federal case law interpreting and applying the 1976 Copyright Act.

scholarly journals RESTRICTIONS ON COPYRIGHT IN UKRAINE AND THE UNITED STATES: A COMPARATIVE LEGAL ASPECT

2021 ◽  
pp. 5-10
Author(s):  
Yu. Akulov
Keyword(s):  
United States ◽  
Legal Aspect ◽  
The United States ◽  
Copyright Law ◽  
Fair Use ◽  
Educational Institutions ◽  
Non Profit ◽  
The Us ◽  
Exceptions And Limitations ◽  
Exhaustive List

The article compares the American copyright system (from its inception, borrowing the basics of the English system to the establishment of the principle of "fair use") and the Ukrainian system, which provides a specific list of cases allowed as a restriction of copyright (enumerated system) by establishing in national legal acts of the three-stage test provided by the Berne Convention. The article examines not only the legislation of Ukraine and the United States in this area, such as: the Federal Copyright Act of 1790, the second Federal Copyright Act of 1909, the Copyright Act of 1976, the Civil Code of Ukraine, the Law of Ukraine "On Copyright law and related rights" but also the case law of the United States, which is a key element in regulating disputes in the area under discussion. The author analyzes a number of cases through the prism of changing approaches in the US system of property rights restrictions, namely Philpot v. Media Research Center Inc. No. 1: 17-cv-822 dated January 8, 2018; Peteski Productions, Inc. v. Leah Rothman No. 5: 17-CV-00122 dated August 30, 2017; Rosen v. eBay, Inc., No. 2: 13-cv-06801-MWF-E of 16 January 2015 and Corbello v. DeVito No. 2: 08-cv-00867-RCJ-PAL June 14, 2017. As a result of the research, the author determines that the national legislation establishes an exhaustive list of works that are its objects, at the same time, the ways of using the work depend on the type of particular work. Therefore, an exhaustive list of all possible ways to use the works is not provided. U.S. law provides for an exhaustive list of copyrighted works and an exhaustive list of ways to use such works. And the doctrine of "fair use" in the United States provides that in determining whether the use of work in any particular case is fair, there are at least 4 factors to consider. Keywords: the principle of "enumerated system", the system of "numerus clausus", the concept of "exceptions and limitations", US copyright law, the doctrine of fair use, the Agreement on guidelines for copying in non-profit educational institutions, free use of works, three-stage test.

It’s Bigger Than Hip-Hop: Sampling and the Emergence of the Market Enhancement Model in Fair Use Case Law

2018 ◽  
Vol 96 (2) ◽  
pp. 598-622 ◽  
Author(s):  
P. Brooks Fuller ◽  
Jesse Abdenour
Keyword(s):  
Hip Hop ◽  
Original Work ◽  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
Use Case ◽  
Market Impact ◽  
Market Participation ◽  
Lower Courts ◽  
Rich History

“Sampling” copyrighted works to create new expression has a rich history in creative culture, particularly in hip-hop music, a genre that values revision and recontextualization. However, courts are mixed on whether sampling should be considered fair use. Many courts have found that sampling harms the original artist’s ability to license copyrighted material, thereby diminishing the work’s marketability. But some courts recognize that sampling can enhance the market for the original work. The present study explores the tension between these opposing fair use models—what we call the “pure market substitute” and “market enhancement” models—currently percolating in lower courts. Through an analysis of cases involving hip-hop sampling and similar practices, we argue that the “market enhancement” model, which considers cultural and audience characteristics that impact marketability, better serves the goals of copyright law and should be more widely adopted. We further recommend that courts consider three factors when analyzing market impact in fair use sampling cases: provable effects of the sample on the market for the original work, the nature and duration of the original author’s market participation, and the similarity between markets for the original and secondary works.

scholarly journals Technology is Changing What's "Fair Use" in Teaching

2002 ◽  
Vol 10 ◽  
pp. 4 ◽  
Author(s):  
Linda Howe-Steiger ◽  
Brian C. Donohue
Keyword(s):  
Digital Technologies ◽  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
The Internet ◽  
Applied Potential ◽  
Legal Requirements ◽  
Web Based ◽  
Teaching And Research ◽  
Potential Impact

The Doctrine of Fair Use was established by the courts to exempt certain activities such as teaching and research from the legal requirements of the copyright law. Before the 1976 Revision of the Copyright Act, only two cases were brought against teachers for copyright infringements. In both cases the teachers lost because their extensive copying was found to impact the copyright owner's market for legally published copies. Although the 1976 Act explicitly recognizes the existence of potentially Fair Uses, the act makes application of the principle highly situational. Classroom Guidelines attached to the Act make application even more murky and constrained. After 1976 photocopy technology and the advent of the coursepack began a trend towards circumscribing situations in which Fair Use may be applied. Potential impact on a new, lucrative market for sale of rights to copy portions of books and journals appears to dominate contemporary case law. Desktop publishing and Internet and web-based teaching, the authors believe, will further erode traditional applications of Fair Use for educational purposes. They argue that instructors and researchers should assume that there is no Fair Use on the Internet. Guidelines are provided for faculty and others considering dissemination of potentially copyrighted materials to students via digital technologies.

scholarly journals Decoding Academic Fair Use: Transformative Use and the Fair Use Doctrine in Scholarship

2019 ◽  
Vol 3 (1) ◽  
Author(s):  
Matthew D. Bunker
Keyword(s):  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
Legal Doctrine ◽  
On Line ◽  
Scholarly Attention

Fair use in copyright law is an enormously complex legal doctrine.  Although much scholarly attention has been paid to fair use in the context of teaching -- particularly in on-line education -- relatively little research exists on the problem of fair use in scholarship. This article analyzes reported federal cases on fair use in scholarly contexts, with a particular emphasis on the transformative use doctrine that has become enormously influential in fair use determinations. The article explores insights from this body of case law that may assist future scholars wishing to fairly use copyrighted expression in their scholarship.

scholarly journals Defining Fair Use on YouTube: A Guide to Modern Copyright

2021 ◽  
Vol 10 (4) ◽  
Author(s):  
Cole Scott ◽  
John Murnan
Keyword(s):  
Content Analysis ◽  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
Court Decisions ◽  
Complex Issue ◽  
Large Complex ◽  
Copyright Laws

Copyright law is a large, complex issue that has found itself at the center of controversy on YouTube. Much of the debate around copyright centers on whether a video is fair use, the exception to copyright laws. There are large problems on YouTube surrounding the exploitation of the Content ID system, and the solutions to these problems often rely on the assumption of clear and defined copyright law, which is far from the case. This led my research into finding out based on the case law, what constitutes fair use on YouTube? Using a content analysis, these complexities of copyright law were able to be broken down into easy-to-understand guidelines. To do this, roughly 30 cases were found using the websites case.law and copyright.gov, and the decision of the case and the reasoning behind it were pulled out to create guidelines based on the copyright case law of court decisions. These guidelines consist of having a license for the copyrighted content, using the content for education, criticism or review, providing significant commentary to shift the focus away from the content, using the content for parody, changing the purpose of the content, or using an insignificant portion of the content. If any of these scenarios are met, then the video will likely not violate copyright. The use of these guidelines could be implemented into YouTubes algorithm, but more likely these guidelines would be easy to follow for creators to know whether or not their video will violate copyright.

Argumentation of the Courts and Contemporary Legal Scholarship

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Case Law ◽  
Copyright Law ◽  
Court Case ◽  
Supply Side ◽  
Resale Price Maintenance ◽  
Goods And Services ◽  
Supreme Court Case ◽  
Resale Price ◽  
The One ◽  
Price Maintenance

This chapter analyzes existing U.S. Supreme Court case law with respect to, on the one hand, antitrust’s minimum resale price maintenance plans, bundling and tying practices, as well as refusals to deal, and, on the other hand, trademark law’s dilution, postsale, sponsorship, and initial interest confusion doctrines, including design patent and selected areas of copyright law. It demonstrates that courts, based on the free riding hypothesis, have come to protect increasing amounts of artificial shortage of everyday consumer goods and services and corresponding incentives to innovate. Through the preservation of such values, antitrust and intellectual property laws have evolved into “dilution laws” and have focused, almost exclusively, on the refurbishment of the technological supply side of our present-day digital economies rather than also on the human demand side of “creative consumption.”

The Old Order Changeth, Yielding Place to the New (Murli Manohar Joshi’s Tenure)

2018 ◽  
Author(s):  
R.V. Vaidyanatha Ayyar
Keyword(s):  
Public Policy ◽  
Case Law ◽  
Theoretical Explanation ◽  
Educational Institutions ◽  
Original Intent ◽  
Policy Problem ◽  
Old Order ◽  
Reinforcing Factors ◽  
The Right

This chapter elaborates the shifting case law over the 24 year period from 1982 to 2006 in regard to the right of private individuals and organisations to establish educational institutions, the regulation of admissions to private-unaided institutions (self-financing institutions), and the regulatory power of AICTE. It offers a theoretical explanation of these shifts by elaborating two major reinforcing factors. The first is the adoption of an interpretational philosophy that legitimates judges going beyond the express wording and original intent of Constitution makers, discerning the purpose underlying a constitutional provision, and applying the purpose so discovered to rectify failures of public policy and governance types. The second factor is the inbuilt trait to expand as a result of a generous policy of admitting appeals. Given that judges differ considerably in the judicial philosophy they hold, and their perception of policy problem and solutions case law has bene fluid, creating uncertainty for institutions which are regulated as well as regulators like the AICTE.

Digital Repatriation

2018 ◽  
pp. 530-552
Author(s):  
Alex Perullo
Keyword(s):  
Country Of Origin ◽  
Indigenous Communities ◽  
Copyright Law ◽  
Fair Use ◽  
Digital Collections ◽  
Limited Access ◽  
Local Space ◽  
The Creation

This essay makes two points about digital collections. The first recognizes problems that emerge as archives present indigenous content online. In uploading indigenous songs, speeches, and documents, an archive allows that material to move from a local space with limited access to an international repository with many points of access. This chapter examines conflicts that can occur with this action, including those involving copyright law, fair use, and ethics. A second point of this chapter revolves around technology and repatriation. If repatriation means the return of material to a country of origin, then online archives never fully commit to this task. The material typically remains preserved on servers and in its original forms away from indigenous communities. Despite these ethical, legal, and technological concerns, archives should encourage the creation of digital collections as part of repatriation given the desire by many indigenous communities to preserve and promote their traditions.

New Developments in Public Health Case Law

2003 ◽  
Vol 31 (S4) ◽  
pp. 86-87 ◽  
Author(s):  
Karen Smith Thiel
Keyword(s):  
Public Health ◽  
Health Effects ◽  
Case Law ◽  
Great Frequency ◽  
Court Decisions ◽  
Health Law ◽  
Public Health Law ◽  
New Developments

In recent years, public health law has seen some important court decisions. Those are presented below.In Pelman v. McDonaldS Corporation, the court dismissed a complaint filed by three children who claimed that McDonald’s practices in making and selling its products were deceptive. This deception, the children alleged, caused them to consume McDonald’s products with great frequency and become obese, thereby injuring their health. The plaintiffs pled five causes of action against McDonald’s, alleging that McDonald’s: 1) failed to adequately disclose the ingredients and health effects of its products and described their food as nutritious without disclosing detrimental health effects; 2) engaged in marketing techniques geared toward inducing children to consume their products; 3) acted negligently in selling foods high in fat, cholesterol, salt, and sugar when studies show that foods containing these ingredients cause obesity and detrimental health effects; 4) failed to warn consumers of the quantity and qualities of levels of fat, cholesterol, salt, and sugar in its products or of the detrimental health effects of such foods; and 5) acted negligently in marketing foods that were physically and psychologically addictive.

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