10,528 research outputs found
From Berne to Beijing: A Critical Perspective
Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law’s Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange’s preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated with the Beijing Treaty’s expansion of moral rights into US copyright law. Those expanded rights, viewed in light of previous legislative and judicial expansions of traditional US copyright principles, threaten to erode certain portions of the public domain and the exercise of First Amendment rights. Recognizing that additional rights for some result in a loss of rights for others, these Remarks invite critical reflection on the costs and benefits of the Beijing Treaty, “copyright restoration,” and other well-intentioned alterations to the status quo
Students, Music and the Net: A Comment on Peer-To-Peer File Sharing
As most of the public now know, the recording industry has lately filed civil suits alleging copyright infringement against hundreds of individual defendants across the country, many (I think most) of them college students and campus hangers-on. Hundreds more such suits are said to be in the offing. The nature of the infringements? Peer-to-peer file sharing via the Internet: a kind of piracy, to use the term favored by the industry, or downloading, as it is generally thought of by the students themselves - but from either perspective, the practice of recording music from the Net while making it available in turn to others, using any of a growing number of computer programs designed to make the practice work
From Berne to Beijing: A Critical Perspective
Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law’s Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange’s preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated with the Beijing Treaty’s expansion of moral rights into US copyright law. Those expanded rights, viewed in light of previous legislative and judicial expansions of traditional US copyright principles, threaten to erode certain portions of the public domain and the exercise of First Amendment rights. Recognizing that additional rights for some result in a loss of rights for others, these Remarks invite critical reflection on the costs and benefits of the Beijing Treaty, “copyright restoration,” and other well-intentioned alterations to the status quo
Golan v. Holder: Copyright in the Image of the First Amendment
Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign works previously thought to belong to the public domain. The Tenth Circuit upheld the legislation, but not without noting that it appeared to raise important First Amendment concerns. The Supreme Court granted certiorari. This article addresses the issues in the Golan case, literally on the eve of oral argument before the Court. This article first considers the Copyright and Treaty Clauses, and then addresses the relationship between copyright and the First Amendment. The discussion endorses an understanding of that relationship in which the Amendment is newly seen as paramount, and copyright is newly seen in the image of the Amendment
Reimagining the Public Domain
In a paper included among this collection of works from the Duke Law School’s Conference on the Public Domain, James Boyle kindly credits an early essay of mine, Recognizing the Public Domain, with having contributed initially to the contemporary study of the subject. Boyle quotes a passage from that essay in which I suggested that recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain . . . . Each [intellectual property] right ought to be marked off clearly against the public domain
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