Working Fair Use

Are there tensions in recent fair use cases regarding methods? Fair use analysis has traditionally and conventionally posed a set of very “work-specific,” nuanced questions. For at least 15 years or so, since the rise of the original Napster technology (and really, at least since “librarying” was at issue in the original Betamax litigation), social practices and information technologies have raised the question of large-scale alleged fair uses. Yet copyright law sticks somewhat stubbornly to the “work-specific” legal framework. Are cracks appearing in that facade? Have recent cases opened that conversation in earnest? Continue reading Working Fair Use

Abbott and Costello, Copyright, and Me

This report — “Abbott & Costello Heirs Sue Over Lifting of ‘Who’s on First’ Routine” by @HandtoGodBway — reminded me that many years ago, I borrowed the spirit of “Who’s on First?” for a short and silly piece about copyright law. The piece got published but never made its way to the unrarefied air of the Internet. I’ve corrected that omission.

Download “What’s My Copy Right?,” 48 J. Copyright Soc’y (U.S.A.) 787 (2001), for free, via SSRN.

I’m aware that the paper somehow confuses the performers’ names, which were, properly Bud Abbott and Lou Costello.

Reports of the contemporary copyright claim appear, among other places, at


Changing Rhetorics of Copyright

People with a taste for the finer details of copyright law pay attention to the language in notices of claimed copyright, the rhetoric of claims to enforce software licenses, and related things.

Book publishers, for example, routinely insert copyright notices that forbid any and all reproduction of any and all material, sometimes explicitly allowing for selections used in a review, but sometimes not. More than a decade ago, Alchemy Mindworks was celebrated (that link goes to an article by Lydia Pallas Loren) for threatening to unleash “a leather-winged demon of the night” on unauthorized users of its software.  (I just checked.  That demonic language is still there!) Creative Commons notices, of course, turn this idea on its head. In the spirit of Abbie Hoffman, perhaps (and with apologies to Rebecca Tushnet), a CC work says: Copy me, please (with conditions)!

The interesting stuff, to me, lies in the rhetorical space between “copy and you’re a thief” notices and “copy and you’re a hero” notices. This post is prompted by one of these, from William Gibson’s new novel, The Peripheral (Penguin 2014):

“Penguin supports copyright. Copyright fuels creativity, encourages diverse voices, promotes free speech, and creates a vibrant culture. Thank you for buying an authorized edition of this book and for complying with copyright laws by not reproducing, scanning, or distributing any part of it in any form without permission. You are supporting writers and allowing Penguin to continue to publish books for every reader.”

There are all sorts of rhetorical moves there, technical problems, and legal ambiguities. Have some fun, for example, by substituting the phrase “the public domain” for “copyright” every time it appears in that paragraph. Copy a bit of the text, as I just did, and persuade yourself that it constitutes fair use, as I just did.

“Penguin supports copyright.” I never imagined that it does not, but copyright ordinarily isn’t something that one supports, just as ordinarily, copyright isn’t something that one believes in – or does not.  Copyright is a fact of the world.  “Do you believe in infant baptism?,” Mark Twain supposedly was asked. And he is supposed to have replied, “Believe in it? I’ve seen it done!”

Koons and Christo

Jeff Koons is at it again. He’s been sued for copyright infringement, this time by an artist who created an advertisement for a French clothing brand, Naf Naf.

You can see images of the original advertisement and of Koons’s adaptation at the following links:

Koons has been sued often enough that it’s reasonable to conclude that he is not merely playing with impressions of art (well or poorly? – opinions are divided).  Koons, I think, is using the copyright system itself as a canvas.  Back in law school, the great Robert Ellickson pointed me to a reflection by Christo (“Running Fence,” the Central Park “Gates,” etc.) that has been stored in the back of my mind for nearly 30 years:

Christo endured years of zoning battles with local authorities before erecting his “Running Fence” in Sonoma County, California: “‘It’s hard to explain that the work is not only the fabric, steel poles, or Fence. Everybody here [at the zoning hearing] is part of my work. Even those who don’t want to be are part of my work….”’ (quotation from Milner S. Ball, Good Old American Permits: Madisonian Federalism on the Territorial Sea and Continental Shelf, 12 ENVTL. L. 623, 656 (1982)).

Does Koons think that he is … Christo?

The Future of Copyright: Teaching

IP law seems to be moving so quickly these days that figuring out how to teach it and what to teach is ever more challenging.  This month (December), I’m grading final Fall papers and preparing for Spring courses, and that means deciding — again — what to do with Copyright Law.

Last year a student comment made me pause in a way that student comments rarely do. Reviewing last Spring’s Copyright Law course, the student expressed satisfaction with the course as it was but disappointment that my work on knowledge commons had not been expressed in the course — even indirectly.

That comment motivated me to look under the hood of the course in a way that I had not done in a long time.

Changes in the works:

  • Reducing the coverage of the “traditional” principles and doctrines of copyright, focused on the exclusive rights of the copyright owner and limitations and exceptions thereto.
  • Expanding the coverage of problems associated with secondary liability and service provider liability.
  • Expanding discussion of “regulatory” copyright, meaning compulsory and statutory licenses and collecting societies.
  • Introducing discussion of comprehensive copyright reform. Congress is talking about it, the Copyright Office is talking about it, the American Law Institute is talking about it — so I’ll talk about it with our students.

All in all, the revisions are designed to capture more explicitly an “institutionalist” focus on this area of the law, meaning how the law interacts with formal and informal groups of various sorts, not just with individual authors or copyright owners or copyright users and re-users. That’s closely aligned with the theme of the knowledge commons work, even if “commons” stuff as such will make a cameo appearance at best.

Along the way, I am getting rid of the traditional casebook.  I’m in the middle of editing a package of cases, and for secondary material and context I will be using parts of the excellent Open Intellectual Property Casebook from the Duke Center on the Public Domain, via Jamie Boyle and Jennifer Jenkins, plus some stuff of my own devising.

And … because software copyright is much in the news these days, courtesy of Oracle and Cisco Systems, my writing assignments for the students (no exams in my IP courses – only client memos!) will all focus on that subject.

All in all, there is a fair amount of experimentation ahead.