Columbia Journal of Law and the Arts最新文献

{"title":"Is There a New Extraterritoriality in Intellectual Property?","authors":"T. Holbrook","doi":"10.52214/JLA.V44I4.8193","DOIUrl":"https://doi.org/10.52214/JLA.V44I4.8193","url":null,"abstract":"This Article is the first to comprehensively interrogate the impact of the Supreme Court’s recent interventions in extraterritoriality as it relates to the three historical forms of federal intellectual property: patent, copyright, and trademark. In this manner, it fills an important gap in the literature because most assessments of the presumption focus only on one area of law. Moreover, this Article offers a novel comparative assessment of the evolution of the presumption across the patent, copyright, and trademark regimes, offering both a descriptive account of the state and evolution of the law, as well as a normative assessment of whether the current state of the law best effectuates the policies that justify these forms of protection. \u0000In reviewing the application of the Supreme Court’s recent jurisprudence in these three areas of intellectual property, the Article concludes that the Supreme Court’s effort to standardize the law of extraterritoriality has failed. Lower courts’ engagement with the presumption has been, at best, inconsistent. There are times where the courts simply ignore the Court’s recent cases, relying on previous cases and doctrine without pausing to reconsider whether those doctrines survive the Supreme Court’s latest changes to the law. The Article also concludes that this inconsistency cannot be justified based on the differing policies surrounding copyright, trademarks, and patents. \u0000This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been some impact on patent law, but virtually none on copyright or trademark. The Article assesses whether there is a new extraterritoriality for intellectual property and concludes that there is not: The Supreme Court’s efforts, at least in IP, have not led to greater coherence. While there may be reasons for the lower courts’ failure to follow the framework, it does represent a missed opportunity for cross fertilization, at least among intellectual property regimes, if not across all fields of law. It also offers a call for the consideration of comity—looking to foreign law and potential conflicts—in deciding whether to apply U.S. law extraterritorially.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133798796","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Press and Libel Before New York Times v. Sullivan","authors":"S. Barbas","doi":"10.52214/JLA.V44I4.8195","DOIUrl":"https://doi.org/10.52214/JLA.V44I4.8195","url":null,"abstract":"This Article argues that Sullivan was not only a “civil rights case,” but also very much a libel case, one that was influenced by contemporaneous debates over libel law and freedom of the press. The Court intervened in what was perceived at the time as a near-crisis for the press caused by an increasing number of libel suits and large damage awards against publishers in the 1950s and ’60s. This escalation was a notable departure from the relatively tame “libel climate” of the previous forty years. For most of the first half of the twentieth century, the press had been able, to a remarkable degree, to avoid and defeat libel suits through strategic navigation of the libel law landscape. By combining a tactical accommodation of libel law with a dedicated resistance to it, the press had learned to “liv[e] with the law of libel.” By the 1940s, most of the nation’s major newspapers faced only a handful of libel suits each year, and the amount paid in judgments and settlements was low. The upset of that equilibrium, starting in the 1950s, put libel on the Supreme Court’s radar, and it spurred the Court to contemplate more aggressive intervention into the state law of libel.\u0000In what follows, I shed new light on Sullivan through an account of the history of libel law and litigation in the United States in the years prior to the case, and the libel law context in which Sullivan was initiated and rose through the courts. This Article does not dwell on the constitutional law developments that influenced Sullivan or the common law of libel prior to Sullivan, but instead focuses on how the press dealt with libel, and the practical implications of libel law for American print media in the years leading up to Sullivan. In so doing, it reveals a reality about libel law that cannot be readily gleaned from a study of case law or treatises: that for much of the twentieth century, especially prior to the 1950s, libel did affect press behavior and the ability of the press to publish newsworthy stories, although it likely did not have the highly chilling effect on the press that its rigid formal doctrines suggested. Libel law did impose burdens on the press; it did require self-censoring to some extent. Yet many sectors of the press enjoyed broad latitude to report the news and to comment on politics and public issues, libel law notwithstanding.\u0000That state of affairs, however, was seemingly threatened by changing libel trends in the 1950s and ’60s. Changes in the nation’s social and political culture, new dynamics of tort litigation, and new norms and practices of journalism increased the willingness and ability of plaintiffs to sue for libel and to recover damages. In an era when controversies around communism and civil rights, hostility towards the press, and large jury verdicts in tort cases encouraged the use of large-scale libel litigation as a weapon in political and cultural battles, when tort judgments increased nationwide, and when news publications received r","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122092309","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Retelling Copyright: The Contributions of the Restatement of Copyright Law","authors":"Jeanne Fromer, Jessica M. Silbey","doi":"10.52214/JLA.V44I3.8097","DOIUrl":"https://doi.org/10.52214/JLA.V44I3.8097","url":null,"abstract":"The provisions at issue in the draft Restatement of Copyright Law on which ALI membership will vote at ALI’s upcoming annual meeting are central to copyright doctrine and have been the subject of numerous court decisions over the past several decades of technological and industry change: originality, fixation, categories of copyrightable subject matter, the idea-expression distinction, and authorship and ownership.  This abundance of legal activity on copyright law demonstrates the value to the profession of this project retelling copyright.  In contrast to the dramatic criticism of this Restatement project alleging political capture or illegitimate law reform, the draft’s provisions are routine and straightforward.  They will surprise no one and are almost boring in their adherence to and synthesis of the copyright statute and judicial interpretations of it. Far from being radical or ill-advised, the Restatement of Copyright Law is a reasonable and welcome addition to the work of the ALI. \u0000Part I of this Article situates the current Restatement of Copyright Law in the historical context of other ALI projects, drawing parallels in their purposes, processes, and political tensions. Part II describes the controversy over a “retelling” of copyright law as misguided insofar as it fails to account for the practice of interpretation as part of the practice of law that is constrained by professional standards.  Part III describes the analysis and exposition of the provisions of the draft portions of the Restatement of Copyright Law presented to the ALI membership for discussion and vote this year as unremarkable but also beneficial, achieving the ALI’s goals of clarification and simplification of the sprawling federal case law interpreting and applying the 1976 Copyright Act.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128716309","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Restatement of the Law, Copyright: A Useful Resource for Practitioners and Courts or a Rashomon Exercise?","authors":"Eric A. Schwartz","doi":"10.52214/JLA.V44I3.8102","DOIUrl":"https://doi.org/10.52214/JLA.V44I3.8102","url":null,"abstract":"As the Ninth Circuit succinctly observed, when deciphering copyright law, “[w]e begin, as always, with the text of the statute.”  An examination of any aspect of copyright law commences with the text of Title 17 of the United States Code (the “statute”), and then turns to case law for adjudications and interpretations of the relevant statutory text, or as the primary source of law in the gaps in the statute.  Everything else is secondary and not, of course, a substitute for the law, whether it is legislative history, Copyright Office (and other government agency) studies, treatises, or other commentary. \u0000If copyright law consists predominantly of federal statute, how, if at all, will the American Law Institute (“ALI”) project to prepare a Restatement of the Law of Copyright (the “Restatement”) provide a useful or necessary resource for attorneys and the courts?  In the face of the primacy of the enacted statutory text, why undertake a project to recast and rephrase the law?  What, if any, use might it yield to practitioners and courts, and equally importantly, will consequential harms result? \u0000From the inception of the Restatement project, the creative community has collectively viewed the project with skepticism about its necessity and fears about its purpose and biases, and the resultant impact on the livelihoods of creators.  This Response focuses on the practical uses, if any, of the Restatement for attorneys and courts grappling with copyright issues.  The Response also examines, from a practitioner’s point of view, the Restatement’s potential to harm the ecosystem of the copyright creative community, and the likelihood that the harm will outweigh any value the Restatement might bring to clarifying the law.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131920989","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Past, Present, and Future of the Restatement of Copyright","authors":"Shyamkrishna Balganesh, J. Ginsburg","doi":"10.52214/JLA.V44I3.8095","DOIUrl":"https://doi.org/10.52214/JLA.V44I3.8095","url":null,"abstract":"It is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright (hereinafter “Restatement”) has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.”1 Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push the project forward, and despite the persistence of serious objections from within the membership of the project (including many of the project’s Advisers), the first draft of the Restatement is scheduled to go to a vote seeking adoption by the organization’s full membership in the middle of 2021.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134276117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Restating Copyright Law’s Originality Requirement","authors":"J. Hughes","doi":"10.52214/JLA.V44I3.8099","DOIUrl":"https://doi.org/10.52214/JLA.V44I3.8099","url":null,"abstract":"In 2015, the American Law Institute (ALI) launched a project to create a Restatement of the Law, Copyright.  Concern, objection, and disagreement about the ALI’s Restatement projects is not new, but the Restatement of Copyright project seems to be particularly controversial among industries dependent on copyright protection.  The drafting group has now worked through several versions of some proposed sections; a handful of these have been approved by the ALI Council and are ready to go before the ALI general membership. So now is a good time for close analysis of the chunks of the projects that have crystallized. \u0000This Article reviews the 2020 draft Restatement’s presentation of American copyright law’s threshold requirement for protection: that copyright protects only “original works of authorship,” and how that “originality” requirement should be understood in light of the Supreme Court’s 1991 decision in Feist v. Rural Telephone.  Copyright’s originality requirement is a challenging subject for a Restatement because what is unquestionably agreed is that black letter law is  limited, formulaic, and opaque.  Not surprisingly, the Restatement’s handling of this topic hews close to the words of the Supreme Court’s modern pronouncement on the issue, sometimes to the detriment of a richer, potentially more enlightening discussion. \u0000The discussion here is based principally on “Tentative Draft No. 1” of the Restatement, released on April 8, 2020,3 but the discussion will also include consideration of the earlier “Council Drafts”4 that led to the 2020 proposal. \u0000Part I of the Article briefly describes the controversial beginnings of this Restatement project—and, as of 2021, the continuing animosity of copyright stakeholders to the project. Part II lays out the 2020 draft Restatement’s core provisions on copyright originality, the modest evolution of these provisions since the 2017 draft, and some concerns with what these sections, Comments, and Reporters’ Notes say. In broad strokes, the draft Restatement’s take on copyright originality is faithful to the Supreme Court’s 1991 Feist v. Rural Telephone decision, perhaps too much so. Part II.A explores the draft Restatement’s presentation of Feist’s “modicum of creativity” requirement, raising some issues both with what the Reporters have said so far and equally with what the draft Restatement seems unwilling to say about minimal creativity.  Part II.B discusses the draft Restatement’s presentation of Feist’s “independent creation” requirement; here the concern is that the draft may conflate independent creation with minimal creativity in a way that does not contribute to coherence in copyright law.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"99 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131411166","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Myths of Textualism and Their Relevance To the ALI’s Restatement of the Law, Copyright","authors":"Jon O. Newman","doi":"10.52214/JLA.V44I3.8101","DOIUrl":"https://doi.org/10.52214/JLA.V44I3.8101","url":null,"abstract":"In 2015, Justice Elena Kagan famously proclaimed, “We’re all textualists now.”  To which I ask, “When were we not?” \u0000Justice Kagan not only used the word “now,” but also provided her evidence that being a textualist is of recent vintage.  She asserted that when she was at the Harvard Law School in 1983, the inquiry concerning a statute was “what should this statute be,” rather than what do “the words on the paper say.”  And she attributed this inquiry to a “policy-oriented” approach with judges “pretending to be congressmen.” \u0000With respect, I cannot credit this evidence. I started my law school years thirty years earlier at Yale Law School, which reveled in its reputation for being concerned with “policy,” yet I never once heard a professor suggest that the text of a statute should be ignored in favor of a “policy” interpretation.  “Policy” was thought relevant when a statutory provision was unclear, or, in nonstatutory cases, when existing case law provided no clear answer.  Of course, even in a statutory case, the policy to be implemented was the policy preferred by Congress, not by judges. \u0000I take on the task of refuting Justice Kagan because I believe the “now” in her statement is only one of many myths about textualism, myths often perpetuated by some judges, legal scholars, and politicians, especially when they disagree with a court’s decision.  Refuting these myths is particularly relevant to the current controversy within the American Law Institute concerning the effort to craft a Restatement of the Law, Copyright.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125294922","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Overlapping and Sequential Copyright, Patent, and Trademark Protections: A Case for Overruling the Per Se Bar","authors":"Loletta Darden","doi":"10.52214/JLA.V44I2.7822","DOIUrl":"https://doi.org/10.52214/JLA.V44I2.7822","url":null,"abstract":"Should extant or expired copyright or patent designs (such as those featuring Mickey Mouse, Wonder Woman, and the Coca-Cola bottle) be eligible for trademark or trade dress protection? Or, should they enter the public domain upon expiration of the copyright or patent without regard for their source-indicating capacity? The law is in conflict on this question. Early Supreme Court precedent imposed a per se bar precluding trademark or trade dress protection for designs of extant or expired copyrights or patents. Yet, later Supreme Court and regional appellate court cases deviated from that precedent, creating conflicting jurisprudence and promoting marketplace conditions that undermine trademark law’s purpose and policy ofmaintaining a fair and ordered marketplace. \u0000Disallowing trademark protection for nonfunctional source-indicating designs because of their current or past copyright or patent status sets up the possibility for consumer confusion, deception, and fraud in the marketplace. This is precisely the type of marketplace disorder that trademark law is designed to prevent. This Article offers normative justifications for the eligibility of copyright or patent protected designs to receive overlapping and sequential trademark protection, as well as a path for resolving the conflicting jurisprudence. \u0000This Article addresses the conflict in overlapping intellectual property protections at the patent/trademark interface and the copyright/trademark interface. At the patent/trademark interface, the per se bar is unnecessary because trademark law’s functionality doctrine properly resolves the concerns with overlapping IP rights, asfunctional designs are categorically ineligible for trademark protection. Unfortunately, the Supreme Court and regional appellate courts use different tests for assessing functionality, yielding inconsistent and conflicting results that are impractical in the new economy. This Article proposes a single functionality test that is more comprehensive than the plethora of existing and conflicting tests currently in use. The proposed test assesses a design’s use in relation to the product and the design’s function in a manner that is less conceptual and more specific to a particular application of the design. At the copyright/trademark interface, the per se bar is also unnecessary for two reasons. First, trademark law’s functionality doctrine resolves the conflict for useful articles. A modified version of the functionality test applied to useful articles precludes trademark-ineligible designs from protection. Second, for character designs and music, it is their specific use that would determine their eligibility for trademark protection. Therefore, the proposed use test would examine that specific use to determine whether the design is being used as a source indicator or as an unlawful attempt to extend copyright protection. The proposedtests at the patent/trademark and the copyright/trademark interfaces provide processes for ","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127650320","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Minimum and Maximum Protection Under International Copyright Treaties","authors":"J. Ginsburg","doi":"10.52214/JLA.V44I1.7308","DOIUrl":"https://doi.org/10.52214/JLA.V44I1.7308","url":null,"abstract":"This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130048028","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Why a Data Disclosure Law Is (Likely) Unconstitutional","authors":"Max Fiest","doi":"10.7916/JLA.V43I4.6129","DOIUrl":"https://doi.org/10.7916/JLA.V43I4.6129","url":null,"abstract":"Social media platforms have changed the very structure of communication. These platforms exert significant influence over how we get our news, how we form and join political movements, and how we connect with friends and family.  But social media platforms are black boxes.  Moderation algorithms are opaque--even to the platforms themselves—and attempts by third parties to research these algorithms are often frustrated.  Because platforms withhold data necessary for public interest research, Congress might step in and mandate data access for certain researchers and journalists.  I conclude that any such effort would (likely) be unconstitutional under the First Amendment. \u0000  \u0000My purpose in this Note is twofold.  First, I provide a framework for evaluating the constitutionality of a data disclosure law and explain which arguments are most likely to succeed.  I also provide some analytical categories of platform data.  These categories should help practitioners and policymakers evaluate the ways data disclosure might chill the free expression of platform users.  Second, I explore how easily the First Amendment can be used to strike down economic regulations.  Using a data disclosure law as an exhibit, I hope to illustrate and explain the Supreme Court's shifting understanding of free speech. \u0000  \u0000My Note proceeds in four parts.  Part I provides relevant background and outlines a hypothetical data disclosure law; Part II explores the many arguments regulated platforms could deploy to invalidate a data disclosure law; Part III provides a brief recommendation to legislators seeking to draft a data disclosure law; and I conclude in Part IV by arguing for a reinterpretation of free speech jurisprudence.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125938206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}