OK, after some network access issues (my ever-diligent spyware blockers meant well), I’m here. My initial notes are sparse as I was ascertaining how to get on the network, so they do not do full justice to the presentation. Now I’m on and will march forward!
Also, for those unfamiliar, this is a works-in-progress event. That means that the papers presented are literally in-progress, incomplete works. So my notes should be considered and weighed in that vein.
Below are my notes from a first parallel session, defenses:
[Note: c = copyright]
Steven Hetcher, Vanderbilt — orphan works — different areas require different solutions — look at Google — fair use for snippets — not hurting market and transformative, but lose b/c copying whole book — issue is welfare maximizing.
David Olson, BC — proposal for how to interpret fair use and compelling story from practice; Shloss story and how she ran into problems with the Estate of James Joyce (JJ); fair use doesn’t work very well and Shloss story is example; copyright misuse is a powerful tool; nothing is stopping JJ from making threats as there were no penalties; one solution is atty fees under sec 505; expand and protect speech interests; shift dynamic of conversation by making enforcement dangerous and shifts dynamic so that egregious holders get dinged; should c misuse be an aff defense; integrity versus privacy interests — where is the line drawn? mandatory licensing?
Gary Myers, U. of Miss. — Towards a Unified Thoery of C Misuse — almost no concensus on what it is — carry out compeitition policy and allow for enforcement of ind’l rights — not necessarily a windfall — finding of misuse is not a death penalty for the c; should not be concerned if c misuse is invoked consistant with c policy; certain fundamental rights: pricing, exclusion and allocation (offering of certain bundles of rights) support less c misuse, but issues of extension of terms (i.e., the lack of an ending of c term), prevention of the use of ideas, facts, un-c material, reverse engineering by c holders, and first sale (it should not be barred, but as law says that once a copy is sold, its earned its reward and the right expires as to that work), so when c holders try to prevent resale, its a violation of the first sale doctrine.