In today’s highly litigious legal landscape, one might doubt that there could ever be an “open, fair, voluntary” agreement between copyright owners and service providers to police infringement.1 Congress nevertheless envisioned such a consensus when it developed § (i) of the Digital Millennium Copyright Act (DMCA): “Conditions for [Safe Harbor] Eligibility.”2 An often-overlooked provision of the DMCA, § 512(i) directs right holders and Internet service providers to work together and agree on “standard technical measures” to “identify or protect copyrighted works.”3 In addition to being the product of consensus, these measures must be “available . . . on reasonable and nondiscriminatory terms” and also “not impose substantial costs . . . or substantial burdens.”4 Although ostensibly thorough, these guidelines are too imprecise and elusive to actually guide service providers and right holders toward a consensus; the term “standard technical measures” remains undefined and possibly undefinable more than a decade after passage.
Current Issue
Volume 34, Issue 2
articles
Lex Luthor Wins: How the Termination Right Threatens to Tear the Man of Steal in Two
Anthony Cheng
abstract
PDFWhen Superman was created in 1938, there had never been a character quite like him.1 His arrival marked the first appearance of a superhero, setting off a trend that would come to dominate the comic book medium, one of the few distinctly American art forms, for the next seven decades.2 As befitting his larger than life adventures, the fictional character Superman spread across all communicative media, from the comic page to the radio serial, animation, live action television and motion pictures.3
Varsity Blues: A Call to Reconfigure the Judicial Standard for High School Athletic Association Transfer Rules
Van Ann Bui
abstract
PDFOn any given day of the week, hundreds of thousands of high school students can be found training for or competing in any number of interscholastic sports. For many teenagers, interscholastic sports are a crucial component of the high school experience. Among other benefits, participation in sports provides a welcome break from academic stress and offers an outlet for students to interact and socialize with schoolmates outside of the classroom. Participation in interscholastic sports also provides an opportunity for students to maintain a healthy, active lifestyle while also providing a structured environment for students to learn such values as teamwork and cooperation, healthy competition, self-discipline and responsibility. Because students benefit tremendously from participation in these activities, it is important to protect the ability of students to take part in them.
If It Ain’t Broke…Copyright’s Fixation Requirement and Cultural Citizenship
Larisa Mann
abstract
PDFCopyright subsists in creative works that are “fixed in any tangible medium of expression,” usually understood as making fixation a prerequisite for protection.1 However, some argue that denying copyright to unfixed works unfairly denies protection to certain classes of artists or works, and that fairness, or concern for those classes of artists or genres, requires that they receive the benefit of copyright ownership for those unfixed works. These arguments generally assume the benefits of copyright protection to the artist, and often by unexamined extension to society. However, copyright ownership has social costs as well as social benefits. This Article examines the possible costs of applying copyright protection to unfixed works, in the context of the specific artists, traditions, genres and practices that rely mainly on unfixed works. It argues for a deeper, more empirically grounded understanding of the creative process and a broader definition of values that arise from culture making, and thus a broader understanding of the public policy implications in copyright law.
Copyright Law v. Trade Policy: Understanding the Golan Battle Within the Tenth Circuit
Elizabeth Townsend Gard
abstract
PDFINTRODUCTION
A. TENTH CIRCUIT’S INTERNAL SPLIT OVER THE MEANING OF COPYRIGHT: GOLAN V. GONZALES (2008) VERSUS GOLAN V. HOLDER (2010)
The Tenth Circuit seems to be in a battle with itself over the meaning and definition of our copyright system. In the last two years, the Tenth Circuit defined the public domain as a constitutionally protected component of the copyright system, and then reversing itself, defined copyright (ignoring the public domain) as a tool for international trade, where treaty obligations outweigh tradition. The Golan case stands at the center of competing priorities and definitions. How are we to understand the “physics” of the public domain within contemporary copyright law? Does copyright have principles and an internal logic to foster creativity, or is copyright to be seen as malleable tool for trade and international relations?
Judge Henry in the 2007 Tenth Circuit Golan v. Gonzales stated that under the traditional contours of copyright, what comes into the public domain, stays in the public domain.4 With this came a First Amendment right to use public domain works, and he remanded the case back to the district court to further determine whether the statute in question required content-based or content-neutral First amendment analysis.5 This decision marked the first time a part of the copyright law had been found unconstitutional, and it also marked a moment where the public domain appeared to be protected by the U.S. Constitution.6 Upon appeal from the district court remanded decision, the Tenth Circuit appeals court—albeit with a different chief judge—found the same statute not in violation of the First Amendment, and perfectly in line with the United States’ treaty and international obligations.7 In this opinion, works in the public domain were fair game, particularly because their restoration would somehow help American authors indirectly.8 Copyright was merely a tool for trade law, and, because of this, any alteration was acceptable and necessary.
To Waive and Waive Not: Property and Flexibility in the Digital Era 23rd Annual Horace S. Manges Lecture, April 6, 2010
Robert P. Merges
abstract
PDFEven in an era when creative works can sometimes be made collectively, and where copying and modifying existing works is often easy, individual ownership of discrete creative works still makes sense. Individual creative effort is still the crucial ingredient for many high quality works, and the control conferred by ownership is often the most efficient, and even more frequently the most fair, social arrangement.
Even so, a common argument against property rights in the digital era is that they come with a heavy transactional burden. The need to clear permission to use digital works is said to impede the potential of high velocity distribution models and participatory creative efforts. Too many property rights, too many clearance and licensing deals, too much friction in the great digital creativity machine—all stand in the way of progress.
There are, broadly speaking, three solutions to the problem. First, society can cut back on the number of property rights, or rework the structure of rights with an eye toward transactional efficiencies. Second, right holders or society in general can invest in rights clearance mechanisms that make it easier for users and consumers of rights-protected works to transact more efficiently. Third, legal rules can be tailored to make it easier for right holders to commit to a binding non-enforcement of their rights.
The purpose of this brief Article is to explore in some depth this third option. I begin by describing how waiver contributes to the supple texture of property rights, making it easy for individuals to exercise choices after rights have been granted. This is, in my view, a cornerstone feature of property rights, and one of their chief advantages over other entitlements and incentive regimes. Next, I show how waiver fits with other basic features of property rights. I argue that waiver can be thought of as an aspect of the structure of rights, as well as a (particularly simple) rights clearance mechanism. Finally, I describe some simple ideas that could clarify knotty issues surrounding legal requirements for waiver of intellectual property rights. The most important are: 1) binding, easily verified waiver mechanisms that are “good against the world”; and 2) scope of waiver rules that make it simple for right holders to selectively waive rights, for example, permitting some uses and not others. I conclude with a call for more attention to the waiver strategy as a way of retaining our traditional commitment to property while easing the transactional burden that property rights entail.