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March 21, 2007


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Jule Sigall

Excellent post. You can add to the list several other fundamental copyright issues that have been shaped almost entirely by the courts: the standard for direct infringement (i.e. "substantial similarity"), the standard for originality, and the scope of protection (i.e. the idea/expression dichotomy). Congress has consistently stayed out of trying to fix the rules for these issues, as they are very difficult to set via general statements in statutes.

In fact, it is probably more accurate to say that the courts, not Congress, have had the predominant role is setting the rules for the most important issues of copyright law.

Michael Risch

I wrote an article addressing this issue and presenting some of the economic considerations (primarily relating to computer software) many years ago. The focus was on a "case by case" welfare maximization - the assumption is that the courts can't do a full ex ante analysis and must instead do the best they can with the facts they are given.


At some point I'll expand the analysis to other important copyright issues, though I would like to think that application of the factors I derive in this paper would have resolved Grokster in the same way.

Joan A. Conway

Monopoly power then only exists for Patent Inventor(s), and not for Copyright Authors.

Well my son is an inventor with several Patents that have fueled Cormark, Inc., DesPlaines, Illinois, in global industrial design.

But if my son was an author with several Copyrights that fueled Movies, Television, and Radio, as well as other books criticizing his work, I would see that the global communications industry depends on the original copyright to proliferate more copy-cat copyright(s).

It appears to me, he is a generator of a business in his original Copyright, and should therefore benefit from what has been created in the aftermath of his Copyright.

Which he would not be today!

The Court ruled rather partially in Vanna White's challenge to Sony. It it appears if the Plaintiff is a very popular celebrity, the Court can be persuaded easily.

Vincent Cox

The 1841 decision by Justice Story in Folsom v Marsh traced fair use to English decisions regarding fair abridgment. See Gyles v Wilcox, 2 Atk. 141 (1740)

Patry , Fair Use in Coppyrght (2d ed 1995) p. 1-14

Joan A. Conway

J. R. Rowlings made about 1 billion dollars on her Harry Potter books, so any concern about England's copyright protection and the author's ability to receive reimbursement under fair abridgment or fair use.

I find this topic extremely interesting for some odd reason. But then I am an Anglophile.

"Fair use emerged as a court-created doctrine which Congress embraced in the 1976 statute."

"As the majority opinion noted, the Patent Act expressly addressed secondary liability, setting forth in 35 USC 271(b) liability for one who “actively induces infringement of a patent” and in 35 USC 271(c) liability for contributory infringement. Congress obviously knew how to create secondary liability in intellectual property cases when it wanted to, and therefore chose not to do so in copyright when it failed to include comparable language to that of the 1952 patent act in the 1976 copyright statute."

When Chief Justice John Roberts tries to make a majority of the justices decide the outcome of a Supreme Court review, he does so to try to stop a court-created doctrine right?

The originalists' persuasion that the Constitution needs to support justices' opinions so there is little likelihood that the opinions of the majority will be reversed in the future right? What about the Nineth Amendment, of the U. S. Constitution?

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