PennTags Feed for /tag/property+copyright

SSRN-The Digital Commons: Using Licenses to Promote Creativity by Mathias Klang

Klang, Mathias,"The Digital Commons: Using Licenses to Promote Creativity."

The paper beings with the concept of property as "mine", which at an early age is always contrasted with the concept of sharing. The new digital age tests out currently property regulation, since things are now copied with ease. Importantly, "that which is owned is no longer simply the item itself but the privileges which it provides to the owner". How, then, do we reconcile property rights and the public domain (the commons)? Property law in Western civilization tends to bestow all rights onto a single person. He defines ownership as a "collection of rights which complement each other and grant to the owner the authority to legitimately enforce conditions". The focus on possesion complicates the property law when dealing with intagible objects.

Klang offers the differing views people have of the commons, citing sources as far back as Aristotle and as recent as Lessig. The first, and considerably widespread, is the belief in the "tragedy of the commons". The second argues that the idea of the tragedy is false since it does not consider the environment in which the commons exists. The commons itself is a considerably vague term (consisting only of notions of property and sharing), and the public doman is defined only as what it is not (it is not legally protected intellectual property). According to Klang, what the public domain is "is our collective culture". He continues to explain the basics of the current copyright law and how owning the content of something limits the creativity of others. Creative Commons was developed to help ensure an ease of sharing and the creativity that the commons encourages. He explains, as most do, the basics to how Creative Commons licenses work, concluding that though copyright is a tricky game, "we can also be certain that we will always need a commons or a public domain from which we can create and recombine into new culture for us to enjoy".

This article provides a great overview of the debate that currently surrounds copyright and Creative Commons, extending into the idea of the commons itself. As we saw, there are those who believe that the commons is nothing but a vast wasteland or an "overgrazed pasture", which my project hopes to discredit by emphasizes the good things that have come out of the commons. There are others who believe in the benefit of the commons, taking into consideration the situation in which they exist and the fact that the web allows for social cohesion and trust among those involved. It is this view that conforms to the models that I expand on, showing the many different ways that online communities have been affected by the commons and vice versa. Importantly, this article explain Creative Commons licenses as well and helps to illuminate the debate about property by offering definitions of terms that are really, less than clear in the law today. It really is the basis for this project.

SSRN-International Intellectual Property, Conflicts of Laws, and Internet Remedies by Paul Geller

This article discusses the legal framework in which copyright cases are debated and decided. Geller begins by describing the basis of “territoriality” and how it is derived from the international system of nation-states and clear boundaries. The author admits that this definition is highly problematic when dealing with cyberspace and transfers of data that cut across borders. He then goes on to discuss the variations in each country’s laws regarding cyberspace copyright infringement and how this often leads to inconsistent judgments. For example, in a case that involves multiple countries, a court may award infringement compensation within the conservative limits of a particular country’s legal system. At the same time, it might use justification from another country’s legal code to grant a severe punishment. Geller concludes that the most effective way of combating international intellectual piracy is through a standardized legal code that eliminates such gross inconsistencies.
This paper is very valuable for the question that I am trying to answer, because it shows the legal perspective and legal limitations of the prosecution of international copyright infringement cases. The Internet operates in a borderless context and if the international community wants to regulate online copyright infringement, multinational institutions needs to modify their framework. Similarly, if the ACTA is to be effective, it should not be based on a borders and territoriality. The paper also demonstrates that the ACTA will merely add another set of rules to the already complicated international legal network. Nevertheless, the paper fails to propose a way to iron out the inconsistencies in legal codes around the world. Perhaps the ACTA is a valuable multinational forum but its focus should be shifted to addressing the problems within the existing legal system and not creating new laws.

The Piracy Paradox: Innovation and Intellectual Property in Fashion Design

Raustiala, Kal and Sprigman, Chris,The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. Virginia Law Review, Vol. 92, p. 1687, 2006; UCLA School of Law Research Paper No. 06-04.

This paper is extremely informative in that it addresses both sides of fashion copyright, whereas most other papers point out only one side of the argument. Moreover, it explores the question of why other major industries have obtained and used powerful IP protections for their products, while the fashion industry is for the most part still ineffective yet very economically successful. First, the paper argues that there should be an effective copyright on fashion because it protects the designers' creativity. However, it also argues that a weak IP actually helps the fashion industry in its innovation. Specifically, the terms "induced obsolescence" and "anchoring" are mentioned to explain that copying is actually beneficial for the fashion industry and in fact promotes fashion.

I will be able to refer to this article a great deal when writing my own paper because it explains how the fashion industry’s piracy paradox works and explores how copying plays an important role in the fashion industry’s innovation cycle. It also gives an ample of amount of history about fashion copyright, which is very important for my paper. Finally, it will help me to support my thesis because it talks about both sides of the argument. Therefore, in my paper, I will be able to address both sides of the fashion copyright problem and give reliable information to support either side, although ultimately, I will acknowledge that there should not be a fashion copyright.

Gift : imagination and the erotic life of property / Lewis Hyde.

Hyde, Lewis, 1945- .

Gift : imagination and the erotic life of property / Lewis Hyde. [0394523016 : ] New York : Random House, 1983.
Call#: Van Pelt Library GN449.6 .H93 1983

"A work of art seems to be a hardier breed; it can be sold in the market and still emerge a work of art. But if it is true that in the essential commerce of art a gift is carried by the work from the artist to his audience, if I am right to say that where there is no gift there is no art, then it may be possible to destroy a work of art by converting it into a pure commodity. I don't maintain that art can't be bought and sold, but that the gift portion of the work places a constraint upon our merchandising."

quoted in the Ecstasy of Influence

U.S. Copyright Office: Collections of Information Antipiracy Act

This commentary from Congress reveals that database protection and the pending Antipiracy Act should be carefully analyzed because there are numerous economic and societal issues at stake. The commentary depicts both the pros and cons of passing the Antipiracy Act in regards to collections of information, otherwise known as databases.

One side of the argument points out that a large amount of time, money and effort is needed when an author constructs a database. Then it mentions, with today’s technologies, whole databases can be copied with one click of the mouse. Additionally, a negative outcome of this will be the creation of fewer databases by owners because of the risks of their works being stolen or copied.

On the other hand, the commentary also notes the opposing side. Here, it states that over-protection is extremely dangerous because it may prevent the free-flow of information. This will put limitations on the availability of works and ideas. This, in turn, hinders the progress of culture, technology, and, most importantly, knowledge.

The goal stated in the commentary from Congress is to restore the protection policy of databases without completely restricting the flow of information. This would require some application of the “sweat of the brow” theory, as well. Basically, their goal is to find the healthy medium between these two arguments. Additionally, at the conclusion of the note, it states that the Copyright Office believes that the Antipiracy Act is a positive piece of legislation, and that it will aid in promoting more information to the public.

This is pertinent to the project because it accounts for both sides of the issue concerning copyright protection, as well as describing the Antipiracy Act, which would definitely have a huge impact on the fantasy baseball case if passed. It clearly points out the implications of, both over-protection, and no protection. This helps to establish the importance of database listings.

Debate Continues Over Scope of Copyright Protection for Databases

This journal article goes into detail over the issue of copyright protection for databases. With its review of the Feist Publications, Inc v. Rural Telephone Service Company, the author illustrates the requirements for a work to be protected. The article mentions that if pre-existing factual material does not originate from someone, then it is not able to be protected. It points out that in order for a work to be protected by copyright law, there must be some degree of originality. Therefore, databases, for the most part, are not protected under this. The only way a database can be protected is if the coordination or arrangement of the data is unique.

Furthermore, the author states that the Digital Millennium Copyright Act originally had a provision to protect databases, but subsequently, it was dropped at the last minute. Then he explains that this is because of the Feist decision in 1991, which limits database protection.

The article is very helpful in that it gives the details of the Feist case. Rural Telephone Service Company had originally copyrighted their white pages in their telephone books. Because the names were listed in alphabetical order, the court found that there was no degree of creativity. Therefore, despite their effort and expenses put into the work, the company failed to meet the requirements of copyright protection. After the case, the white pages were no longer protected.

Although this article does not have to do with the fantasy baseball conflict directly, the case clearly relates because both have to do with non-protected works. Databases and statistics are very similar, and both are in the public domain. The results of the case more than a decade ago still apply today, and are very transferable to the issue of ownership of baseball players’ stats.

Another key point from the article that helps oppose the MLB’s licensing and fees is the fact that the statistics do not owe its origin to Major League Baseball. They are like facts or events in history. The MLB is not the “author” of these statistics, rather they are part of the public domain free for anyone to include in databases like fantasy leagues.

Vices of Originality: A Supreme Court Review.

This Supreme Court review talks about Feist Publications, Inc v. Rural Telephone Service, Inc and the issue of intellectual property. Mainly, while depicting the case, it focuses on Congress’ ability to permit copyright protection. It goes into detail about how the Feist case set the standard for the Intellectual Property Clause. Because the white pages of a telephone book were found to be uncopyrightable, this then forced revision of originality on all cases to follow. If authors want to protect their works, they have to, because of the Feist decision, pass all the requirements of creativity and originality.

Also debated in the review was the definition of “original” works. This is thoroughly discussed in the composition. It proves, through description of the case, that a compilation of facts cannot be copyrighted. Additionally, this is very important because it states the opinions of the justices, including Justice O’Conner.

To add to that, the review also points out that the decision of the case not only complicates the goals set out by the Intellectual Property Clause, but it also has a huge effect on how the courts should govern and control other forms of compilations, such as maps, computer programs, and the broadcasting of sporting events.

Also discussed is the “sweat of the brow” theory. This theory states that the amount of effort and money put into a work should be the reasons that govern protection under law. This is focused more on labor than originality. Another main point in the case that is brought out in this review is the use of the fair use doctrine. This proves that the only material taken from the white pages was raw facts.

Evidently, the description of the Fesit v. Rural case and the issues brought pit in the courtroom transfer over to the issue of statistics ownership, as well. This is because the main reasons brought out in the case (intellectual property, fair use, originality, and the compilation of data) all can relate to the case between the MLB and fantasy baseball.

Protection for Databases

This journal article is centered around the issue of protection for databases in our technologically advanced society. Because it is so much easier to store and transfer information, data base owners are faced with the problem of a lack of protection. The article traces the process that the database status has gone through over the years. It talks about the original statutes from the Copyright Act of 1976 and what the law was like then. Then, it talks about the Feist case and then implications that followed.

Additionally, it gives insight to what databases are and what exactly makes one qualify for protection. The article gives clear definitions of “original works of authorship,” and all the different reasons why or why not a database would be included in this. It says that databases are computerized “file cabinets” that contain pages of information. Then it states that they are protected if the work was created by arranging or coordinating the data in a unique, original way. Subsequently, this gives a clear picture as to what allows these compilations of data to be protected by copyright law.

Furthermore, the journal article not only explains the Feist case, but also reports the outcome and the effects that ensue. It explicates how the court’s ruling has changed the way the U.S. deals with this kind of work and other types of work that are in the public domain. In addition, another effect mentioned is the Anti-Piracy Act. The article goes into great detail as to what The Act would permit. If passed, The Act would overturn the Feist decision and make big changes to the law today. Also mentioned are the possible penalties of not abiding to pending legislation, such as fines and imprisonment. Furthermore, the article states that the passage of The Act will be difficult because of how complex it is. The issue is so intricate that all previous efforts to change the law have failed.

This composition is essential to the project because even though it doesn’t relate directly to the fantasy baseball case, it deals with the same type of work and the debate over copyright protection. Also, it shows a different side of the issue. It goes into detail about the pending legislation and how it would change the law. The most important aspect is the description of the databases and the qualifications of works of originality.

Designers Seek to Prevent Cheaper Knockoffs

This is an article from the Wahab & Medenica law firm's media blog which deals with issues of intellectual property. This blog entry explains the significance of emerging laws in response to the growing trend of copying fashion designs. Designers have been trying even harder these days to protect their works and as a result Congress proposes a new method. The Design Piracy Prohibition Act proposes a limited three year term for fashion designs that commences upon whichever is earlier the date of publication of registration or the date the design is first made public. Under this act the term fashion is defined broadly to include everything from handbags to footwear. The blog goes on to explain the current status of Copyright laws in regards to fashion design. Two cases are presented in order to challenge the issue of the functionality hurdle which designers face when trying to protect their work. The most important case is the Kieselstein v. Accessories by Pearl in which the court granted Kieselstein the right to copyright the design of the belt buckle. Even though this is a step in the right direction for fashion protection, there are no cases which deal with the protection of garments of clothing. The United States does not protect fashion designs but France and England do and this article suggest that the United States should follow their lead. The proposed Design Piracy Prohibition Act will follow in the steps of the E.U. regulation which currently protects fashion designs in the form of registered and unregistered community designs. This new act will address the copycat culture which has grown tremendously within the fashion industry. Even though the act will protect the original designer, it will severely restrict a designer's ability to emulate the styles of others. The importance of this article to my thesis is the proposition of an alternate method of fashion protection, The Design Piracy Prohibition Act. Even though this act has not been passed yet, the blog explains what might happen if it is passed as well as provides background information about the act itself.

Dream On: The fans can play with statistics as much as they like

This article describes the workings of fantasy baseball leagues, and gives the reader an idea of how the players’ statistics carry over to the internet. It is very helpful because it shows what exactly goes on in these leagues. It explains how the statistical measurements of a batter are computed to go up against the statistical measurements of a pitcher, and then, a calculation that weighs all of the two players’ factors determines whether the batter gets a hit or the pitcher strikes him out.

Additionally, the article mentions how millions of Americans participate in fantasy leagues each year. Also, it describes how each member chooses from a list of players and they battle against other teams in the league. Following that, some general information about fantasy leagues is given. Listed are other sports that have fantasy leagues, and how much baseball fantasy leagues are worth each year.

This general information gives great insight to what fantasy baseball leagues are like and how they are run. Clearly, this is very helpful to the project, because it provides a lot of general background information on these online leagues, which demonstrates how the statistics are used. To add to that, this helps to prove the point that the players’ statistics are part of the public domain and cannot be owned by the MLB or the Players Association.

Accordingly, the article also touches upon the case between CBC Distribution and Marketing and Major League Baseball. The case was settled in a St. Louis courtroom and the court ruled in favor of the fantasy leagues. It was decided that players’ names and numbers are part of the public domain mainly because of the First Amendment. This is very important to not only this project, but also to society in general because the court ruled that data is not subject to copyright. This will make big changes as our world becomes more and more digitalized and the workings of the internet need to be governed.