November 11, 2011
Copyright In the Twenty-First Century
John Tehranian, Southwestern Law School, has published The Copyright Wars , an Introduction to Infringement Nation: Copyright 2.0 and You (Oxford University Press, 2011).
In the twenty-first century, copyright impacts us all. Written on the occasion of copyright’s 300th anniversary, Infringement Nation: Copyright 2.0 and You (Oxford University Press, 2011) analyzes the history and evolution of copyright law and assesses its vitality in the digital age. This Introduction, The Copyright Wars, provides an overview of the book and its central themes.
The Copyright Wars begins by highlighting three key trends: copyright law's increasing relevance to the daily lives of average Americans, the heightened public consciousness over copyright issues precipitated by this reality, and the way in which both legal and technological changes have called into question the growing disparity between copyright law and copyright norms. This law/norm gap has created a policy stalemate, and new theaters of operation for the copyright wars have debuted as skirmishes have moved outside of their traditional venues (Congress and the federal courthouses) into some basic American institutions previously removed from the fray. From the misadventures of Captain Copyright – the Canadian Copyright Counsel's educational superhero dedicated to the fight against infringement – to the the MPAA's "Respect Copyrights" merit badge, both classrooms and key youth-oriented institutions such as the Boys Scouts have emerged as battlegrounds where interested parties have sought to mold the views of future generations toward copyright law.
The Copyright Wars then provides a synoptic review of Infringement Nation, which is organized around the trope of the individual in five different copyright-related contexts – as an infringer, transformer, consumer, creator and reformer. Using an array of examples – from the unusual origins of Nirvana's Smells Like Teen Spirit, the history of stand-offs at papal nunciatures, and the tradition of judicial plagiarism to contemplations on Slash's criminal record, Captain Kirk's reincarnation and Holden Caulfield's maturation – the book questions some of our most basic assumptions about copyright law. In the process, Infringement Nation presents a balanced critique of both the troubling overextension of the copyright monopoly in many contexts and the inadequacies of current law in vindicating the rightful property interests of many American content creators.
Chapter One (The Individual as Infringer) highlights the unseemly amount of potential liability an average person could ring up in a single day if rightsholders were to prosecute infringements to the maximum extent allowed under law. Chapter Two (The Individual as Transformer) documents the counterintuitive role of the fair use doctrine in radically expanding, rather than limiting, the copyright monopoly. Chapter Three (The Individual as Consumer) weighs the important expressive interests at play in even the unauthorized use of copyright works. Chapter Four (The Individual as Creator) critiques the surprising failure of American copyright law to provide sufficient legal protection for the vast majority of content creators, despite our rhetorical support for strong intellectual property protections and our international treaty commitments. Finally, Chapter Five (The Individual as Reformer) concludes by advancing concrete policy proposals aimed at achieving three goals: (1) restoring the balance between users of and rightsholders to copyrighted content; (2) tempering the disparity between copyright law’s treatment of sophisticated and unsophisticated parties; and (3) recalibrating the relationship between transformative users and original creators of copyrighted content. All told, the book makes a case for reform of existing doctrine and the development of a copyright 2.0.
Download the essay from SSRN at the link.
November 10, 2011
Statutory Dilution Claims and Corporate Personality
Sandra L. Rierson, Thomas Jefferson School of Law, is publishing The Myth and Reality of Dilution in Duke Law & Technology Review (2012). Here is the abstract.
Statutory dilution claims are traditionally justified on the theory that even non-confusing uses of a famous trademark (or similar mark) can nonetheless minutely dilute the source-identifying power of the targeted trademark. This Article advances three arguments about such claims.
First, the underlying premise of statutory dilution law, that multiple uses of the same (or similar) trademark dissipate the source-identifying function of the mark, even when those uses do not present a likelihood of consumer confusion, is fundamentally flawed.
Second, even if dilution does dissipate the source-identifying capacity of famous marks to some degree, the social and transaction costs imposed by the current version of the federal dilution statute still outweigh the harm to trademark holders that it aims to prevent. Dilution claims inflict anticompetitive burdens and prohibit protected speech without sufficient justification. For these reasons and others, the federal dilution statute imposes substantially more harm than it (allegedly) prevents.
Finally, the true foundation for the federal dilution statute lies not in alleged economic harms, but rather the misplaced fiction of corporate personality. We do not require trademark holders to prove actual economic injury in the context of a dilution claim because, at least in the vast majority of cases, there is none. Instead, we have granted the holders of famous trademarks the equivalent of a "moral" right to these marks, analogous to the rights granted to a creator of an expressive work in the copyright context. By granting monopoly protection to famous marks, notwithstanding the absence of actual economic injury, the federal dilution statute turns competition on its head and serves only to entrench and further concentrate economic power in the hands of dominant corporate firms at the expense of consumers and competitors alike.
Download the article from SSRN at the link.
November 9, 2011
Russian Critic Prevails In "Poodle" Litigation
Via Siousie Law, news that Russian singer Vadim Samoilov has dropped his suit against music critic Artemy Troitsky, who called him a "poodle," suggesting that he was closely allied to the deputy Chief of Staff for Vladimir Putin. More here from the Index on Censorship.
November 8, 2011
Italian Prime Minister Resigning
Italian Prime Minister Silvio Berlusconi is resigning, according to CNN. His government won an important budget vote, but has lost its majority. More here.
Media Law In Europe: The Case of Belgium
Bart Van Besien, Université Libre de Bruxelles (ULB) - Perelman Center for Legal Philosophy; Université Libre de Bruxelles (ULB) - Institute of European Studies, has published Media Policies and Regulatory Practices in a Selected Set of European Countries, the EU and the Council of Europe: The Case of Belgium. Here is the abstract.
This article aims to give an introduction to the Belgian media landscape and to Belgian media policy.
Differences in language, culture and economy between Belgium’s two main Communities – the Flemish Community and the French Community – explain the division of its public sphere into two different media landscapes. Both the Flemish and the French-language media are characterised by a relatively high degree of concentration. This concentration is somewhat compensated by mechanisms guaranteeing self-regulation and internal or external pluralism.
Belgian media policy is characterised by a high degree of freedom granted to the media, especially the written press. Most of the structural and content related rules apply to the audiovisual sector rather than the written press. Media regulations, such as those applying to the audio-visual media, may often differ between the two main Communities, but are always strongly influenced by European regulations.
Download the paper from SSRN at the link.
News of the World Gathered Material On Hacking Victims' Attorneys
The now defunct tabloid News of the World apparently didn't limit its covert activities to phone hacking. The Guardian reports that the paper also hired an investigator to try to uncover information about attorneys representing the phone hacking victims, possibly in an attempt to derail lawsuits against it. Lawyers Mark Lewis and Charlotte Harris say they are contemplating invasion of privacy suits. The surveillance included observation of Mr. Lewis and Ms. Harris not only at work but during time with family and friends.