Copyright (c) 2008 All rights reserved. http://works.bepress.com/thomas_cotter Recent documents in Thomas F. Cotter en-us Thu, 03 Jan 2008 18:56:34 PST 3600 http://works.bepress.com/thomas_cotter/4 http://works.bepress.com/thomas_cotter/4 Fri, 07 Sep 2007 14:05:26 PDT The questions of whether, when, and where an author has "published" her work of authorship traditionally has given rise to, and continues to give rise to, numerous consequences, including the protectability of the work under U.S. copyright law; the running of various time periods, including a grace period for registering the copyright and the termination of copyright in works made for hire; the applicability of fair use and other exceptions to copyright liability; and the imposition of the duty to deposit two copies of the work with the Library of Congress. Although the 1976 Copyright Act, unlike its predecessors, includes a definition of "publication," controversies continue to arise concerning the meaning of this term in new and different contexts--for example, whether an author's posting of material on the Internet constitutes publication giving rise to all of the various rights and duties attendant thereto. In this article, I propose a redefinition of the term "publication," consistent with the statutory definition, that reconciles some of the conflicting trends in the case law and attempts to resolve some current uncertainties. Thomas F. Cotter Intellectual Property Law http://works.bepress.com/thomas_cotter/3 http://works.bepress.com/thomas_cotter/3 Tue, 14 Aug 2007 13:56:49 PDT Economic analysis has long suggested that there are two distinct categories of cases in which the fair use defense, which permits the unauthorized reproduction and other use of copyrighted materials, should apply: first, when the transaction cost of negotiating with the copyright owner for permission to use exceeds the private value of the use to the would-be user; and second, when the individual use is thought to generate some positive externality, such that the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn may exceed the value of the use to the individual user. Considerable anecdotal evidence, however, suggests that would-be users are often deterred from engaging in conduct that likely would fall within the ambit of fair use, due in part to concerns over incurring attorneys' fees and also to the uncertainty and unpredictability of fair use doctrine itself. This article presents a model of the private costs and benefits faced by would-be users of copyrighted materials in precisely those settings in which economic analysis suggests that the fair use doctrine should apply. The model demonstrates how, under current law, this balance of private costs and benefits may cause some users to forgo legitimate fair uses, particularly when those users are risk-averse. It also suggests that, in cases in which fair use is justified by the presence of positive externalities flowing from the individual user's use, the asymmetry between individual user gain and copyright owner loss may result in systematic copyright overenforcement; put another way, the fair use doctrine suffers from an "appropriability" problem similar to that which is often cited as a justification for copyright protection itself. The article then offers some observations on the likely effectiveness of six different types of fair use reforms. Thomas F. Cotter Intellectual Property Law http://works.bepress.com/thomas_cotter/2 http://works.bepress.com/thomas_cotter/2 Wed, 16 May 2007 10:25:30 PDT Copyright's fair use doctrine permits the unauthorized reproduction and adaptation of copyrighted expression under a variety of circumstances. Economic analysis posits that these circumstances can be roughly grouped into two categories: first, when the transaction costs of negotiating with the copyright owner for permission exceed the value of the use to the would-be user; and second, when the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn exceeds the value of the use to the individual user. Considerable anecdotal evidence, however, suggests that would-be users are often deterred from engaging in conduct that likely would fall within the ambit of fair use, due in part to concerns over incurring attorneys' fees and also to the uncertainty and unpredictability of fair use doctrine itself. This article presents a model of the private costs and benefits faced by would-be users of copyrighted materials in settings in which economic analysis suggests that fair use should apply. The model demonstrates how, under current law, this balance of private costs and benefits may cause some users to forgo legitimate fair uses, particularly when those users are risk-averse. It also suggests that, in cases in which fair use is justified by the presence of positive externalities flowing from the potential copyright defendant's use, the asymmetry between individual user gain and copyright owner loss may result in systematic copyright overenforcement; put another way, the fair use doctrine suffers from an "appropriability" problem similar to that which is often cited as a justification for copyright property protection itself. The article then offers some observations on the likely effectiveness of six different types of fair use reforms. Thomas F. Cotter Intellectual Property Law http://works.bepress.com/thomas_cotter/1 http://works.bepress.com/thomas_cotter/1 Fri, 16 Mar 2007 12:22:45 PDT Copyright's fair use doctrine permits the unauthorized reproduction and adaptation of copyrighted expression under a variety of circumstances. Economic analysis posits that these circumstances can be roughly grouped into two categories: first, when the transaction costs of negotiating with the copyright owner for permission exceed the value of the use to the would-be user; and second, when the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn exceeds the value of the use to the individual user. Considerable anecdotal evidence, however, suggests that would-be users are often deterred from engaging in conduct that likely would fall within the ambit of fair use, due in part to concerns over incurring attorneys' fees and also to the uncertainty and unpredictability of fair use doctrine itself. This article presents a model of the private costs and benefits faced by would-be users of copyrighted materials in settings in which economic analysis suggests that fair use should apply. The model demonstrates how, under current law, this balance of private costs and benefits may cause some users to forgo legitimate fair uses, particularly when those users are risk-averse. It also suggests that, in cases in which fair use is justified by the presence of positive externalities flowing from the potential copyright defendant's use, the asymmetry between individual user gain and copyright owner loss may result in systematic copyright overenforcement; put another way, the fair use doctrine suffers from an "appropriability" problem similar to that which is often cited as a justification for copyright property protection itself. The article then offers some observations on the likely effectiveness of six different types of fair use reforms. Thomas F. Cotter Intellectual Property Law