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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Grossman on Governance

wall-streetNadelle Grossman has two new corporate law papers on SSRN.  The first, entitled “Turning a Short-Term Fling into a Long-Term Commitment: Board Duties in a New Era,” deals with the timely topic of corporate leaders making strategic decisions based on short-term profits without regard to long-term risk.  As a solution, she proposes changes in the legal duties owed by corporate directors.  Here is the abstract:

Corporate boards face significant pressure to make decisions that maximize profits in the short run. That pressure comes in part from executives who are financially rewarded for short-term profits despite the long-term risks associated with those profit-making activities. The current financial crisis, where executives at AIG and numerous other institutions ignored the long-term risks associated with their mortgage-backed securities investments, arose largely because those executives were compensated for the short-term profits generated by those investments despite their longer-term risks. Pressure on boards for short-term profits also comes from activist investors who seek to make quick money off of trading in stocks whose prices overly reflect short-term firm values.

Yet this excessive focus on producing short-term profits runs counter to the interests of non-short-termist investors and other corporate constituents, as well as our economy and society as a whole, in creating corporate enterprises that are profitable on an enduring basis. Once again, the current financial crisis provides a lens through which we can see the distressing impact — both to individual businesses as well as to the entire U.S community — of an excessive focus on short-term profits.

I propose a solution to address this problem of short-termism. Under my proposal, directors would be required to make decisions that are in the long-term best interest of stockholders and the corporation under their fiduciary duties. I explain in the article why I propose fixing the short-termism problem through fiduciary duties as well as how, practically, my proposal would be implemented.

This paper is forthcoming in the Michigan Journal of Law Reform. 

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The New China Syndrome

chinese-flagSince last month China has been on an economic rampage that could have serious long- term effects on the United States and Europe. While Americans have been inundated with a vast and steady diet of “news” focused on personalities (the ongoing deaths of Michael Jackson and Farrah Fawcett and the death-like experiences of Governor Mark Sanford, Senator John Ensign, and Governor Sarah Palin, just to name a few) the economic movements in China that will have a much more significant impact on Americans and their futures have gone virtually unreported by both the American major print and electronic reporting media. Unlike American media, foreign news services have given front-page coverage and deep analytical assessments of China’s economic developments.

Examples of these significant developments include: 

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