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Conclusion 513 annually from Eastlaw, an online research service, for providing Eastlaw with a complete, fully searchable database of its articles. The Duke faculty have free subscriptions to Eastlaw and could, if they wished, print any article directly from the database—though without the law review’s attractive textual features, such as footnotes at the bottom of the page. Harvard Law Review does not currently have any service to license individual photocopies of individual articles though such a scheme might be technically possible—perhaps by direct download of a facsimile version from the Web—but the editor in chief claims that she may “look into it,” depending on the outcome of this litigation. The proprietor of 15-501 is very upset; he had assumed that “anything done by a bunch of lawyers to their own books must be legal.” He asks you if he will be liable for copyright infringement. The Duke faculty is also upset and have turned to you for legal advice; they claim that this kind of copying happens all the time behind the veil of ignorance, that it is protected by the First, Second and perhaps the Ninth Amendments, that the Warren Court, the Pre-Socratic philosophers and the Jacksonian Democrats would never have objected, that it is a Pareto superior allocation of entitlements and, in the alternative, (and you may concentrate your analysis here) that it is a fair use under section 107 of the Copyright Act. You may presume that you are in a Circuit that is not bound by the decision in Princeton but is carefully attentive to all the arguments made there. In your answer try hard to use the traditional common law skills of marshalling and distinguishing cases. On what aspects of this question would you focus to make this case seem less defensible than the copying in Princeton? More defensible? Be very clear about the following questions. a.) What is the relevant “use” for the analysis? Explain what both the plaintiff and the defendant would say and the reasons why they would claim that their definition of use is the correct one. b.) What is the relevant work? c.) The relevant market for the work? Is it static or dynamic? Can a copyright holder claim all markets he might one day enter as relevant to the calculation? If not, how is the ambit of possible future markets to be limited? Finally, hypotheticals (such as casebook problems) often tweak the facts of an existing case to present a conflict more clearly or to come closer to some dividing line. Which of the “tweaks” to the facts in Princeton in this hypothetical is most favorable to the plaintiff? The defendant? Conclusion You are now experts in fair use—or at least considerably more expert than you were when you began the chapter. Fair use is a heated topic around the world. The United States is unusual in having such a flexible and open-ended limitation on copyright. A number of jurisdictions, including the UK, Ireland and Australia have considered whether they should introduce some version of fair use into their copyright laws, as part of attempts to ‘revamp copyright for the digital age.’ The concerns addressed are often technological; the founders of Google are reported to have told the British Prime Minister that they could not have created the company without the protection of fair use. But they are also speechrelated, and sometimes this involves speech that is enabled by a particular technology,
514 LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE such as an unauthorized YouTube remix. We would like you to answer some of those questions for yourself. • What do you think of the current state of the fair use doctrine? • Is its open ended, flexible and adaptable framework a strength or a weakness? • Does it provide adequate protection to copyright holders? • Adequate guidance to potential fair users? • Adequate space for technological innovation? Focus here particularly on the line from Sony through Sega to the search engine cases. We will begin the next chapter with a case-study that raises many of these issues, and that links back to the place we began this chapter: Sony and its connection of fair use to contributory infringement. Finally, for those of you needing a light hearted review of the fair use doctrine, you can try the free online comic book, Bound By Law. ‡ ‡ Keith Aoki, James Boyle, Jennifer Jenkins, Tales from the Public Domain: Bound By Law? http://web.law.duke.edu/cspd/comics/zoomcomic.html.
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INTELLECTUAL PROPERTY: LAW & THE IN
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Table of Contents INTRODUCTION ....
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TABLE OF CONTENTS iii 5.) 1052(e) .
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TABLE OF CONTENTS v d.) A Two-Part
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TABLE OF CONTENTS vii In re Fisher,
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x INTRODUCTION Basic Themes: Three
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xii INTRODUCTION see the Lotus v. B
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CHAPTER ONE The Theories Behind Int
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The Theories Behind Intellectual Pr
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CHAPTER TWO Intellectual Property &
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Limitations on Congressional Power:
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CHAPTER THREE Intellectual Property
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Intellectual Property & the First A
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108 TRADEMARK: INTRODUCTION right?
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110 TRADEMARK: INTRODUCTION Compari
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112 TRADEMARK: INTRODUCTION the hol
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114 TRADEMARK: INTRODUCTION out of
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116 TRADEMARK: INTRODUCTION PROBLEM
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118 SUBJECT MATTER: REQUIREMENTS FO
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154 GROUNDS FOR REFUSING REGISTRATI
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CHAPTER SEVEN Trademark Infringemen
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Use in Commerce 179 it purchase not
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Use in Commerce 181 associated with
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Use in Commerce 183 engaged in the
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Use in Commerce 185 A. Trademark In
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Likelihood of Confusion 187 Doughne
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Likelihood of Confusion 189 closely
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Likelihood of Confusion 191 appella
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Likelihood of Confusion 193 sophist
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Contributory Infringement 195 meani
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Contributory Infringement 197 Backg
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Contributory Infringement 199 Claim
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Contributory Infringement 201 on th
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Contributory Infringement 203 B. Di
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Contributory Infringement 205 for w
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Contributory Infringement 207 an un
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Contributory Infringement 209 You h
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Contributory Infringement 211 Googl
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214 DEFENSES TO TRADEMARK INFRINGEM
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232 FALSE ADVERTISING, DILUTION &
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272 INTRODUCTION TO COPYRIGHT: THEO
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What does copyright cover? CHAPTER
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What does copyright cover? 299 Imag
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Originality: Independent Creation a
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The Idea-Expression Distinction 319
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Merger of Idea and Expression 323 3
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Merger of Idea and Expression 325 W
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Merger of Idea and Expression 327 b
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Merger of Idea and Expression 329 a
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Merger of Idea and Expression 335 A
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Useful Articles 337 PROBLEM 11-2 [W
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Useful Articles 339 if design eleme
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Useful Articles 341 form, the six-i
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Methods of Operation: Introduction
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Fixation (Copyright Meets Software,
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CHAPTER TWELVE Copyright’s “Rea
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Exclusive Rights 383 Shakespeare’
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The Idea/Expression Distinction in
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The Idea/Expression Distinction in
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Copyright Meets Computer Software:
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Copyright in Characters 407 c.) Cop
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Copyright in Characters 409 charact
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A Two-Part Test for Copyright Infri
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“De minimis” Copying 417 puppy
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“De minimis” Copying 419 Newton
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“De minimis” Copying 421 Notes
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CHAPTER THIRTEEN Limitations on Exc
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Fair Use, Technology and Contributo
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Page 474 and 475: Transformative Use, Parody, Comment
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564 ANTI-CIRCUMVENTION: A NEW STATU
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CHAPTER SIXTEEN Copyright & State M
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Introduction 605 (A) any cause of a
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Introduction 607 viewer directly to
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Subject Matter and General Scope: E
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Preemption, Misappropriation & the
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632 PATENTS: HOPES, FEARS, HISTORY
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CHAPTER EIGHTEEN Patentable Subject
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Laws of Nature and Natural Phenomen
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698 REQUIREMENTS FOR PATENT PROTECT
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CHAPTER TWENTY Requirements for Pat
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Statutory Bar: Public Use 737 adopt
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746 NON-OBVIOUSNESS Graham v. John
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748 NON-OBVIOUSNESS Jefferson’s p
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750 NON-OBVIOUSNESS be patentable i
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752 NON-OBVIOUSNESS authorize the i
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754 NON-OBVIOUSNESS B. The Inventio
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756 NON-OBVIOUSNESS most be periphe
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758 NON-OBVIOUSNESS of the tubing,
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760 NON-OBVIOUSNESS toward nonobvio
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762 NON-OBVIOUSNESS contaminating s
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764 NON-OBVIOUSNESS solve the probl
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766 NON-OBVIOUSNESS now claims. 3 T
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768 NON-OBVIOUSNESS A. Who Is Presu
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770 NON-OBVIOUSNESS PROBLEM 21-1 a.
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CHAPTER TWENTY-TWO A Creative Commo
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A Creative Commons? Summary and Con
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James Boyle, A Creative Commons 777
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