Journal of Intellectual Property最新文献

{"title":"Control-Alt-Incomplete? Using Technology to Assess 'Digital Natives'","authors":"S. Moppett","doi":"10.2139/SSRN.2004555","DOIUrl":"https://doi.org/10.2139/SSRN.2004555","url":null,"abstract":"Law students matriculating today were “born digital.” As digital natives, they have never known a world without digital technology, and therefore, they think and process information differently than previous generations. Although law school student bodies have changed, law school assessment methods have remained static, with students nearly universally being evaluated entirely by one exam at the end of the course. Best Practices, the Carnegie Report, and more recently the ABA, have acknowledged that this system of evaluation is contrary to learning theory and that periodic assessment of student learning is crucial to improving the performance of both students and teachers. Nevertheless, change has yet to occur.It is time to change. Using technology to assess student learning is one way to begin effectuating this change. Digital Natives are comfortable with technology and expect to have it integrated into the curriculum. Moreover, incorporating technology as a means to assess student learning will help prepare future lawyers for the realities of law practice today. Technology also allows law professors to conduct meaningful assessments of large numbers of students more efficiently. This article therefore introduces several examples of how to use a number of today’s technologies - both inside the classroom and outside the classroom - in the hopes of initiating further exploration into effective means of using technology to assess student learning at the course level.","PeriodicalId":40000,"journal":{"name":"Journal of Intellectual Property","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73765347","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":"What is Transformative? An Explanatory Synthesis of the Convergence of Transformation and Predominant Purpose in Copyright Fair Use Law","authors":"Michael D. Murray","doi":"10.2139/SSRN.2012932","DOIUrl":"https://doi.org/10.2139/SSRN.2012932","url":null,"abstract":"The transformative test has risen to the top of the agenda of the copyright academic community with no less than two major studies of copyright fair use and the impact of the transformative test released in 2011 by Professors Matthew Sag and Neil Netanel that follow up on three recent comprehensive studies of copyright fair use published since 2008. The lessons learned from these two 2011 statistical studies are significant, in that both studies confirm the importance of the transformative test in terms of its application by the courts as the dominant test of fair use and in the observation that a finding of transformation in a copyright fair use claim virtually assures a finding that the use is fair. Nevertheless, the two studies and those that preceded them have not made an empirical study of the entire body of appellate law on transformation with the specific intent of demonstrating the meaning and operation of the term 'transformative' - in other words, how the term works - illustrated by a synthesis of the data set of appellate cases. This article seeks to address that need. This article analyzes the entire body of United States Supreme Court and United States Courts of Appeals case law applying the transformative test in copyright fair uses cases to present two points: first, that the transformative test modifies the first sentence (sometimes referred to as the preamble) of 17 U.S.C. § 107 - in particular, the terms, 'the fair use of a copyrighted work' - rather than simply factor one of the four factor test. Second, the implementation of the transformative test by the courts indicates that the courts are to consider transformations in the content, context, and the predominant purpose of the original work and whether the alleged fair use changes the content, context, or predominant purpose in a manner that furthers the public policies reflected in the first sentence of section 107, namely the furtherance of the progress of the arts and the promotion of the creation of new, original expression. The transformative test has changed copyright law, and it has become the defining standard for fair use. My conclusions are that the data set of cases applying the transformative test to concrete legal situations producing final judgments in the cases highlights the importance of a change in the predominant purpose of the work rather than simply a change in the character (the form, the contents) of the work. It is evident from the record of cases that the courts take the 'purpose' part of the analysis very seriously, for all of the approved fair uses in the appellate cases involved a change in the predominant purpose for the use of the work. Even if the works were not changed in form, function, or genre, the fair use works were transformed in predominant purpose either through alteration of the contents, or recontextualization of the copied material, or by the addition of significant creative expression so that the predominant purpose of the new work ","PeriodicalId":40000,"journal":{"name":"Journal of Intellectual Property","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2012-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2012932","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72391282","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":"Unplugged: The Music Industry's Approach to Rolling Contracts on Music CDs","authors":"N. Aldrich","doi":"10.2139/SSRN.943607","DOIUrl":"https://doi.org/10.2139/SSRN.943607","url":null,"abstract":"The recording industry has begun a shift in its distribution model of music media, transitioning from sales to licensing. Many CDs now come with digital rights management (DRM) in the form of software that, once installed on the end user's computer, enables the user to copy the music to their hard-drive while regulating its use. Recording companies are distributing these CDs with licenses. In order to enact such licensing contracts with end users, record companies started using End User License Agreements (EULA) similar to those used in the software industry, placed on the CD in the form of a rolling contract. The licensing contracts purport not only to control rights to the software on the disc, but they also affect the user's rights to the music itself. Upon accepting the terms of the EULA, the user, who may have enjoyed the music for years prior to discovering the license agreement, apparently loses rights to their use of the CD upon accepting the terms of the EULA. This article provides a three-step analysis of the legal enforceability of music CD licensing contracts: analysis of the legal enforceability of rolling contracts; analysis of the distribution models in the music industry; and an analysis of the merger of the two. The first portion follows the developmental cases in rolling contract theory and discusses the proposed provisions in UCITA for such contracts. The second portion traces the history of legal rights in the music industry including the \"exclusive rights,\" the First Sale Doctrine, and the Fair Use Defense. In the third portion, the author suggests that such licensing contracts are legally unenforceable for either want of consideration or failure to provide meaningful opportunity to assent. The article culminates with a recommendation for legislators to enact certain, relevant portions of UCITA and recommendations for the music industry about how to bring their licensing scheme within the aims and legality of contract law.","PeriodicalId":40000,"journal":{"name":"Journal of Intellectual Property","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2006-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82228762","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}