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Showing posts from June, 2011

Justifications for Intellectual Property Part 1: Utilitarianism

There is no way this tutorial series would be complete without some discussion of justifications for intellectual property. While not necessarily a matter of law, some knowledge of the philosophical foundations will provide a better sense of the values at stake in intellectual property debates. Notice, for instance, that the tutorials on fair use were punctuated with appeals to values, social goods, and individual rights. Without an understanding of the moral and political framework against which the law stands, one can very easily find oneself in a stalemate, with one value pitted against another and no way of deciding which should prevail. To understand the jurisprudence around intellectual property rights, one has to have some idea of the justifying theories to which attorneys and judges appeal in their arguments and decisions. So, without further ado, let's get to the tutorial.
There are three main ways of justifying intellectual property rights: the Utilitarian theory, the Lab…

Fair Use Part 3: Parody and Scholarship

I alluded to this problem in the initial fair use post, but it deserves a bit more attention. While Weird Al has indeed made a fortune on parody, not all aspiring satirists are so lucky. The Air Pirates certainly did not get away with their parodies of Disney characters. While the courts have been reluctant to hear fair use cases, the cost of litigation makes the possibility of losing any challenge risky. As a result, parody, and other instances of what would appear to be fair use, is not as protected as you might think. If a copyright-holder takes exception to the material and decides to sue for infringement, the defendant must weigh his or her own resources against those of the plaintiff. For the most part, settlement often looks like a rational decision. James Boyle's The Public Domain contains an excellent example of such calculations. I won't reproduce the story in full (Boyle has released the book under a Creative Commons license, so feel free to look it up yourself), b…

Fair Use Part 2: Subtleties

Now that you've had the time to digest the basics of fair use, it's time to talk about some common misunderstandings and problems that arise with regard to this aspect of copyright law. As you might have noticed from last time, fair use a complex issue, one in which various concerns must be weighed with no guiding standard as to how much impact each factor should have. Even more problematically, US courts have stayed away from fair use cases for the most part. Very few actually reach a judge, and only four fair use cases have been heard by the Supreme Court. As such, there is very little jurisprudence to clarify the law. As such, fair use is a ripe subject for confusion and debate. Let's begin with the most crucial clarification.
Fair Use is not a right While one might hear talk about “fair use rights,” there really is no such thing. The National Information Infrastructure White Paper on Intellectual Property (released Sept 1995; for more information see: http://www.uspto.g…

Fair Use - Part 1: The Basics

If you read Monday's introductory tutorial on types of intellectual property, you probably noticed the conspicuous absence of several issues, fair use and first sale among them. I've discussed first sale in the context of digital media fairly extensively, so I will likely let those posts stand as a primer on first sale, unless it becomes important for another tutorial. Fair use, on the other hand, demands its own tutorial, largely because many of the most visible intellectual property conflicts involve fair use at some level. Rather than explain that assertion just now, let's begin the tutorial and return to that point once the basics have been explained.
Fair use is a part of copyright law. As explained in the previous tutorial, copyright gives the creator exclusive control over making and selling copies of the work, and authorizing the creation of derivative works (translations, adaptations, etc). These rights are often understood to be limited by fair use. In other words…