Fair Use and Legal Education

copyrightI’ve just read Pam Samuelson’s recent article, Unbundling Fair Uses. For this article, Samuelson reviewed just about every fair use opinion since 1978, and reached the conclusion that fair use cases fall into 8  discrete clusters. Within most of those clusters, “it is generally possible to predict whether a use is likely to be fair or unfair.” [2542]

Although others have made this sort of argument before (e.g., copyright giant Alan Latman in a 1960 legislative study, and Mike Madison in a 2004 article), Samuelson is cutting deeply against the grain of modern copyright scholarship in her conclusion. As she notes, the opinion is nearly unanimous among modern copyright scholars (including, I confess, me) that fair use is profoundly unpredictable, a crap shoot. As Larry Lessig has pithily quipped, “Fair use is the right to hire a lawyer.”

For me, one of the most interesting questions that arises from Samuelson’s article is, if she’s right, how could so many copyright scholars have gotten it wrong? And what does that have to do with teaching Civ Pro?

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Welcome, Nominee Kappos

kapposLike most patent practitioners, I am very pleased with President Obama’s recent nomination of a new Undersecretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO).  The nominee is David Kappos, vice president and assistant general counsel for intellectual property at IBM.  Kappos has over 20 years of intellectual property experience and manages IBM’s patent and trademark portfolios.  Worth noting is that each year, IBM obtains more U.S. patents than nearly any other company. 

In Kappos’s capacity as VP and assistant general counsel for IP at IBM, his views on many substantive patent law issues are well known.  For example, he is not a fan of pure business method patents (preferring, for example, the machine-or-transformation test).  He also generally supports harmonization efforts, including “opposition-like” post-grant review procedures.  His opinions on such issues have been praised by many and criticized by some.  Interestingly, some have also criticized his nomination for not emphasizing his potential to fix various problems of the USPTO, but instead focusing on his knowledge of the patent system in general. 

I, on the other hand, am relieved that his nomination has been surrounded by discussions of his general knowledge of the patent system. 

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Copyright Law in Transition

Boston MassacreIrene’s post and Kali’s post got me thinking: What is it that interests me about copyright law? The answer is somewhat surprising, given that I specialize in copyright law: nothing, per se. I’m not especially attracted to the doctrine of copyright law more than a number of other subjects, such as torts or contracts or even securities regulation. Indeed, as cocktail party conversation goes, I always cringe a little when I say I specialize in copyright, because it often leads to a discussion of some particular controversy in which I am forced to admit at the end that I have no idea what the answer is, as the statute is vague and there are cases on both sides (or maybe no cases at all). At least there are answers to what constitutes insider trading.

What interests me about copyright is not copyright law in itself, but copyright law as a subject. Over the past few years, I’ve come to realize that my interest in copyright law and Internet law predates law school. It’s part of my general interest in ideological transitions, and in particular turbulent ideological transitions. I’m interested in copyright law for the same reason I’m interested in vigilantes and alterations in foreign policy and systems accidents.

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