Recently the Second Circuit held, in Cariou v. Prince, that Prince’s unlicensed appropriation of Patrick Cariou’s photographs, with what many consider to be only minor modifications, was fair use rather than copyright infringement, thus broadening the scope of copyright law’s fair use defense. The Cariou decision resolved issues that are critical to appropriation art, but the Second Circuit’s ruling in that case—final now that the Supreme Court has denied certiorari—has troubling implications for the entire art market. By broadening the definition of “transformative,” the Second Circuit’s decision in Cariou may encourage other appropriation artists to use original images in ways that have never before been considered fair use. Without the revival or reaffirmation of limitations on how one artist can use another’s work, many creative artists—and the businesses that rely on their work—are likely to suffer severe economic loss. After Cariou, one might question who is best suited to evaluate the creativity that the law is designed to foster. In its wake, lawyers, artists, and dealers face growing uncertainty as to what kind of copying is legal. The ruling has led to a new sense of unease, has uncovered a generational shift in the perception of artistic ownership rights, and reflects a dramatic reversal of the roles of artists and judges in evaluating art. In order to preserve the balance between protecting existing works and incentivizing the creation of new ones, in light of recent jurisprudence, this proposal calls for three critical, interdependent changes to copyright law as it applies to visual art.
Computer-generated journalism is just one type of information that will be disseminated with increasing frequency as similar technologies are adapted to various ends. The popularity of algorithmic reporting will require courts to more fully and definitively articulate a set of first principles for free speech lest they work case-by-case or see a fractal splintering of decisions in the lower courts. This article argues that the relative clarity of copyright’s theoretical underpinnings, in comparison with the more open questions surrounding the First Amendment, offer a more straightforward translation of existing jurisprudence to the new questions presented by automated journalism technology.
In October 2011, an online marketplace for reselling pre-owned digital music emerged. The founders of this online marketplace aptly named it ReDigi. In January 2012, ReDigi was promptly sued by Capitol Records for copyright infringement. Despite reassurances from ReDigi that its software required users to delete copies of the music before being allowed to sell it to another user, the court did not consider that safeguard relevant. The court found that the copyright holder’s reproduction right was being infringed regardless. This paper examines the intersection of the law and science in copyright law. Specifically, it presents a technical way of looking at the reproduction right by explaining how digital files are stored in data storage devices and transferred over the Internet by electromagnetic signals. Ultimately, this elucidation undermines the reasoning used by the court to reach its conclusion. While ReDigi modified its software implementation to skirt any further reproduction right problems, this paper suggests ReDigi should not have had to be so obedient.
3-D Printing Your Way down the Garden Path: 3-D Printers, the Copyrightization of Patents, and a Method for Manufacturers to Avoid the Entertainment Industry’s Fate
What happens when a home user can scan and print a physical item, or download plans to print a physical item from the Internet, as easily as he or she can rip and share a song or movie? With home 3-D printers on the horizon, the question will begin to ring louder. Manufacturers of tangible goods should heed lessons learned about infringement of music, movies and books when these 3-D printers arrive in homes across the country. A key lesson learned from peer-to-peer file sharing of digital content is that once a technological monopoly (being the only one who can efficiently produce an item) on a protected item falls, the legal monopoly of intellectual property law is insufficient to protect property rights. Once efficient and inexpensive 3-D printers arrive, businesses can (1) shift to a market or bifurcated model in pricing goods, (2) seek to persuade people not to misuse intellectual property for moral reasons, (3) seek to use the judicial and legislative systems to (temporarily) slow sharing of protected designs, or (4) fade away. This article argues that the third solution (using the courts and legislatures to protect the legal monopoly once the technological monopoly is lost) sets a price on violations while removing any moral disincentive, and that only a combination of the first two methods—moral persuasion and market model pricing—will in fact protect tangible goods manufacturers from catastrophic losses.
FOSS (free/open source software) is a growing player in the end-user market, as evidenced by the popularity of everything from Wordpress to Firefox. One of its key appeals to developers is the egalitarian nature of its “access for everyone” model, which allows everyday users to develop and share tweaks that make the program more useful to them. In executing these goals, however, developers can often get lost in the world of legalese surrounding available FOSS licenses. Often, developers choose a license without a full understanding of its contents, or even attempt to draft their own. One of the biggest risks in the wording of a license is that of the “condition”/“covenant” dichotomy. Incorrectly worded, a covenant-based license runs the risk of foreclosing copyright-based remedies and limiting the scope of arguments available when a user breaches a program’s license. In approaching the choice of which license to apply to a new program, then, both developers and their attorneys should be aware of the critical importance of its choice of words.
The dawning of the information age, coupled with a greater understanding of the value of intellectual property, has increased the quantity of proprietary information businesses choose to keep as trade secrets. An often-underappreciated cost of trade secrets is the effect they have on the employment relationship – they frequently result in employers and employees involving themselves in convoluted legal and contractual relationships beyond their own expectations or comprehension. Further complicating the matter is the Economic Espionage Act (“EEA”), which increases the stakes of employer-employee conflict by criminalizing the misappropriation of trade secrets. This note provides a primer to help both employers and employees deal with the specific issues trade secrets frequently create in the employment relationship, first by outlining the current status of trade secrecy law, then by examining how the EEA is changing the trade secrecy landscape, and finally by providing a practical summary of best practices.
In 2010, the Antitrust Division of the Department of Justice approved the merger of Ticketmaster and Live Nation, who combined to form Live Nation Entertainment. This paper revisits the Department’s antitrust analysis from its merger investigation in light of recent trends in the live music industry. It explores alternative theories of antitrust scrutiny that the Department either did not emphasize or omitted discussion of. Finally, it concludes that the merger posed a more significant threat to competition than the Department acknowledged, and that the remedies the Department imposed as conditions on the merger were insufficient to preserve effective competition in the relevant markets. The Department missed a tremendous opportunity to establish long-term competition in the nascent market for vertically integrated services. Artists, competing service providers, and ultimately consumers are worse off for it.
This Article shows how the maturing technology of three-dimensional printing can be used to construct an enforceable open hardware license. Open hardware lacks the legal tools which allow the easy implementation of enforceable open source software licenses. As such, existing licenses cannot successfully implement open hardware principles. The author proposes the “Three-Dimensional Printing Open License” (the “TDPL”). The TDPL draws on the unique characteristics of three-dimensional printing to construct a license that incorporates enforceable documentation, attribution and copyleft provisions. As the technology of three dimensional printing improves and is gradually integrated into a broad range of industries, the scope of the license’s application will increase.
Does copyright law protect graffiti? Preserving graffiti art and protecting it against unauthorized reproductions are growing concerns in the art scene. This article argues that copyright law should cover graffiti works because copyright should be neutral towards works created by illegal means. Because copyright should only be concerned with protecting expression, material transgressions related to the physical embodiment of an artistic work should not exclude the work from copyright protection. This is true even under an incentive-based copyright system, such as the one established by the United States Copyright Act. Illegal graffiti works are creative acts that fit within the scope of promoting “the progress of Science and Useful Arts,” as stated in the United States Constitution. Moreover, protecting graffiti may incentivize graffiti artists to create more legal works. This article analyzes the challenges that artists face when enforcing their rights in their graffiti, both under the Copyright Act and the Visual Artists Rights Act (VARA).
In July 2011, a consortium of major content providers and Internet service providers announced their intention to implement the Copyright Alert System, a graduated response plan aimed at stemming online copyright infringement by individual users. While other commentators have examined the rise of these systems abroad and certain potential issues with the implementation of such measures in the United States, little has been said about the antitrust implications of a private system of copyright enforcement. This article recounts the history of online infringement leading up to the Copyright Alert System and then analyzes the system from the perspective of antitrust law, taking the position that the system announced raises significant antitrust concerns. The article concludes with recommendations for improving the current system to protect the rights of consumers.