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The Tabberone™ Archives These articles concern what we consider major trademark and copyright issues. They are usually reproduced with the original source referenced. Bear in mind, these articles are copyrighted and commercial use without permission of the authors may be considered infringement. The intended use here is educational, commentary and non-commercial. The reason they are reproduced in the Tabberone™ Archives, as opposed to just providing a link, is because links disappear and pages are removed. That presents a messy confirmation process that is annoying to the browser (you) but also presents a credibility issue. We do not claim any rights in these pieces. Do not regard the absence of a copyright statement or © to mean the article is not copyrighted. Some sites do not have a copyright statement. When an article or a comment is posted on the internet by the copyright owner, the owner is seeking a world-wide, 24/7 audience; sometimes for a limited amount of time, sometimes indefinitely. In essence, an internet posting intentionally relinquishes one's copyright for exclusivity because the owner has posted it on the internet to been seen by everyone, everywhere. The Tabberone™ Archives non-commercial duplication of the posting is simply a continuance of the original wishes of the copyright owner. We post these articles for reference, for commentary and for confirmarion of our position. |
Source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=914535 May 9, 2008 |
The Evolving Doctrine of Copyright Misuse
Abstract: This chapter explores the defense of copyright misuse in a manner calculated to expose the theoretical underpinnings of the doctrine as well as to provide practical guidance on future doctrinal development. The chapter is organized as follows. Part II provides a brief introduction to the (potential) jurisprudential functions of the copyright misuse doctrine. It first develops a schematic model for understanding the jurisprudential relationship between the copyright misuse doctrine and copyright, patent, and antitrust laws. Next, it considers two approaches to formulating and applying misuse principles: per se rules and the rule of reason. Part III analyzes the case law in the Supreme Court and the federal courts of appeals. Part III.A examines four foundational Supreme Court cases. Part III.B covers circuit precedents, and Part III.C covers other influential case law. Part III.D provides a brief overview of district court litigation. In Part IV, we distill a set of guiding principles for evaluating copyright misuse. We conclude that courts ask first whether a challenged action amounts to per se misuse by looking to the facts for evidence of blatantly egregious conduct. Two sets of per se rules may be fashioned by the courts. The first type identifies misuse violating the antitrust laws while the second type identifies misuse violating an important public policy behind the intellectual property grant. We discuss both types of per se rules. If a challenged action does not fit within either set of per se rules, courts may engage in a rule of reason analysis. Again, two approaches are possible. The first approach, which coincides with patent and antitrust analysis, weighs the anticompetitive and procompetitive effects of the challenged action. The second approach is broader in scope and balances policy interests reflected in the intellectual property system. We evaluate these approaches to identifying misuse and conclude that courts should apply both types of per se rules - antitrust-based and policy-based - and should only apply a competition-based balancing approach. We remain skeptical about the advisability of a policy balancing test - e.g., a test that weighs pro-expressive against anti-expressive effects on a case-by-case basis - for doctrinal as well as pragmatic reasons.
Click here to read the entire article in pdf format (47 pages). |
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