Intellectual Property

Overview

Wednesday, 12:00-1:30pm
Format: Lecture, featuring guest respondents
Lead: William Fisher, featuring Charlie Nesson

Led by Terry Fisher, this pillar will begin with a brief history of key theories and issues related to intellectual property, with a focus on copyright, in the Internet space. By examining some of the hard problems and cases that have defined this field over the last decade, this session will explore some of the central questions that characterize current debates, including the wide spectrum of licensing options, the uncertainty about permissible uses associated with creative works, and the implications of cloud computing. Charlie Nesson will highlight questions regarding the public domain, free and fair use, and the need for digital copyright and public domain registries. This foundational pillar will lay the groundwork for two relevant use cases on User Innovation and Digital Libraries, Archives, and Rights Registries.

Driving Questions

• William Fisher: To what extent, if any, is legal protection for creative works necessary either to stimulate creativity or to ensure that creators are treated fairly?

Required Readings

Overview / Introduction

• Lawrence Lessig, Ch. 1, “Introduction,” Remix, (Bloombsbury Academic) 2008.
• “Copyright Criminals,” Independent Lens (PBS), watch PBS “Community Classroom” Video Module 1: “Hip-Hop and the Birth of Sampling.”
• Subject Matter of copyright: In general, 17 U.S.C. § 102
• Exclusive rights of copyrighted works, 17 U.S.C. § 106

Infringement and Damages

• Infringement of Copyright, 17 U.S.C. § 501
• Registration as prerequisite to certain remedies for infringement of works, 17 U.S.C. § 412
• Remedies for Infringement of Copyright, 17 U.S.C. § 504
• Pamela Samuelson and Ben Sheffner, Debate, “Unconstitutionally Excessive Statutory Damage Awards in Copyright Cases,” 158 U.PA. L. Rev. Pennumbra 53 (2009), read Samuelson opening statement (pp. 54-57) and Sheffner Rebuttal (pp. 58-61); skim remaining pages

Intermediary Liability

• 17 U.S.C. § 512, read §§ 512(c), (d), (f), and (g)
• Viacom International Inc. v. YouTube, Inc. , (S.D.N.Y.), Civil Nos. 07-CV-2103 (LLS), 07-CV-3582 (LLS) (S.D.N.Y. June 23, 2010), read excerpts

Circumvention and Anti-Circumvention Provisions of the Digital Millennium Copyright Act (DMCA)

• 17 U.S.C. § 1201, skim all
• "Photog Can Fight Use of Nude Shock Jock Pic," Courthouse News Service (June 20, 2011), read all

Fair Use

• Limitations on exclusive rights: Fair use, 17 U.S.C. § 107
• American University Center for Social Media, “Documentary Filmmakers’ Statement of Best Practices in Fair Use” (Issued November 18, 2005), read all
• Campbell v. Acuff Rose, 510 U.S. 569 (1994), read excerpts

Intellectual Property Theory

• Justin Hughes, "The Philosophy of Intellectual Property," 77 Georgetown L.J. 287 (1988), read Part II, read pages 296-314

Recommended Readings

• U.S. Copyright Office, Circular 1, “Copyright Basics,”.
• Peter B. Hirtle, “Copyright Term and Public Domain in the United States, 1 January 2011,” Cornell University Copyright Information Center (CC BY 3.0), skim all.
• Eldred v. Ashcroft, 537 U.S. 186 (2003), read excerpts.
• Steve Greenlee, "Cooks Source probably shutting down," Boston Globe CultureDesk, November 17, 2010.
• William Fisher, "Theories of Intellectual Property" in Stephen Munzer, ed., New Essays in the Legal and Political Theory of Property (Cambridge University Press, 2001), read Section III.A

Copyright Course Materials. Since Fall 2010, the syllabus and materials for Professor William Fisher’s Harvard Law School “Copyright” course have been made available to the public. In addition to online resources, the syllabus links to “maps” which contain Professor Fisher’s lecture notes for all of his courses on intellectual property law. The four maps and collateral slide presentations contain overviews of the principal fields of intellectual property law, including copyright, patent, and trademark law, and intellectual property theory; June Casey of the Harvard Law School Library staff was enormously helpful in annotating them.

• William Fisher's Copyright syllabus, Fall 2010
• William Fisher's Visual Maps of Intellectual Property, 2011

Related Case Examples

Digital Libraries, Archives, and Rights Registries
User Innovation
Cloud Computing

Related Videos

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• William Fisher discusses pre-digital copyright law and the Fair Use doctrine.