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Abrams, Howard Eldred, Golan and the Soul of Copyright Howard B. Abrams Professor of Law, University of Detroit Mercy School of Law [email protected] The article explores the decisions in Eldred v. Ashcroft, 537 U.S. 186 (2003), and Golan v. Holder, 565 U.S. ___, 132 S. Ct. 873, 181 L. Ed. 2d 835, No. 10-545 (U.S. Jan. 18, 2012), available at http://www.supremecourt.gov/opinions/11pdf/10-545.pdf and their impact on several issues. The first issue is the extent to which the Constitution’s statement that the purpose of the power granted to Congress is “[t]o promote the Progress of Science,” U.S. Const. art. I, § 8, cl. 8, constrains the scope of copyright statutes enacted by Congress, if at all. The second issue is the impact of these decisions, particularly Golan, on the intersection of copyright with the First Amendment’s free speech provision. Underlying these doctrinal inquiries is the question of the impact of Justice Ginsburg’s majority opinions in both Eldred and Golan with their broad view of Congress’s power under the Copyright Clause when a far narrower and more tailored judicial response would have upheld the legislation in question. What does this do to the public domain? The next obvious candidates for protection under the Golan doctrine are sound recordings fixed prior to February 1, 1978, and United States works that were forfeited for failure to comply with the formal requirements (notice, registration) of prior U.S. Copyright Law. But the language of Golan seems to invite even more removal of works from the public domain. Beyond the confines of the ongoing copyright-free speech debate—it is not dead by any means—Golan has serious implications for future free speech decision making. Golan‘s holding that no First Amendment scrutiny of copyright statutes is required because of the existence of the idea-expression distinction and the fair use doctrine already embodied in copyright law, raises the possibility, perhaps even the probability, that scrutiny, whether intermediate or heightened, will be bypassed, at least in the case of content neutral regulations of speech. Less broadly, Golan’s position that the copyright doctrines of fair use and the idea-expression distinction are adequate protection for free speech interests in the context of copyright will necessarily force a reexamination of these doctrines. It is submitted that this will be the most important short term effect of Golan for copyright practitioners. From de novo Review to Informal Deference: An Empirical Examination of Patent Claim Construction J. Jonas Anderson Assistant Professor of Law, American University, Washington College of Law [email protected] | Bio | SSRN Peter S. Menell Herman Phleger Visiting Professor of Law (2011-12), Stanford Law School Robert L. Bridges Professor of Law and Director, Berkeley Center for Law & Technology, University of California at Berkeley School of Law [email protected] | Bio | SSRN Claim construction plays a central role in nearly every patent litigation. It is also critical to patent prosecution, patent licensing, and cumulative innovation by delineating the scope of patent protection and the opportunity to work around patent boundaries. Yet since the Supreme Court’s 1996 Markman decision, the Federal Circuit has struggled to articulate a consistently reproducible methodology for construing the scope of patent claims, resulting in high reversal rates and consternation among the federal judiciary, litigants, and patent prosecutors. Using a comprehensive, granular, hand-coded database of all Federal Circuit decisions between 2000 and 2011, we examine the evolution and current status of claim construction jurisprudence. We find that immediately after the Federal Circuit’s 2005 en banc decision in Phillips v. AWH Corp., the claim construction reversal rate dropped precipitously and has remained substantially below the pre-Phillips levels. We explore several competing hypotheses to explain this drop and conclude that the most plausible explanation was a shift away from de novo review and towards a more deferential review of claim construction decisions. The paper also reports several other patterns in claim construction jurisprudence. Creation Norms and Authorship: The Porgy and Bess Controversy Olufunmilayo B. Arewa Professor, University of California, Irvine School of Law [email protected] | Bio | SSRN A controversy erupted in 2011 over a revamped version of the seminal opera Porgy and Bess, which was composed by George Gershwin, with lyrics primarily by DuBose and Dorothy Heyward and contributions by Ira Gershwin. This new version, which was supported by the estates of George Gershwin, DuBose and Dorothy Heyward, and Ira Gershwin, sought to transform 1935 opera into a Broadway musical starring four-time Tony award winning actress Audra McDonald and Norm Lewis. To effect this transformation, the director, Diane Paulus, and Pulitzer Prize winning playwright, Suzan-Lori Parks, proposed a number of modifications, including adding new scenes, changing dialogue, inventing biographical details, and adding a more upbeat ending. The prospect of such changes sparked a furor. For example, in a New York Times letter to the editor, Pulitzer Prize and Tony Award winning composer and lyricist Stephen Sondheim condemned the revised version, focusing on a number of issues, including the rebilling of the piece as “The Gershwin’s Porgy and Bess,” which omits mention of DuBose Heyward, who wrote many of the lyrics. Most importantly, Sondheim criticized “the disdain that Diane Paulus, Audra McDonald and Suzan-Lori Parks feel toward the opera itself.” The controversy that emerged about Porgy and Bess reflects underlying conceptions of authorial intention that are relevant to copyright. Although George Gershwin, Ira Gershwin, and DuBose and Dorothy Heyward are all long dead, the conception of performance as guided by authorial intention remains a strong force long after their respective deaths. This is true not only for the creators of Porgy and Bess, but with respect to a broad range of creators of both classical and contemporary music (including what many refer to as classic musicals). Conceptions of authorial intention have significant implications for copyright and creativity. Norms that insist on strict adherence to notions of authorial intention may reflect an ethos of sacralization that is often consistent with dominant copyright assumptions about creativity. This sacralization ethos may, however, negatively impact the ability of future creators to reinterpret and change creative works, which is an important source of creativity. Further, for works like Porgy and Bess, which are considered by some to be offensive, modification may play an important role in maintaining a work’s continuing relevance. As the Porgy and Bess controversy illustrates, these norms may arise from sources other than creators themselves. In this instance, the estates of all original creators consented to modification of the work. Audiences and other creators such as Sondheim may also significantly influence how works are used and modified. This article suggests that negotiating the divide between authorial intention and reinterpretation is key to both the effective operation of copyright as well as the introduction of innovative and creative interpretations in musical and other contexts. Who Owns the Social Media Account? Zoe Argento Assistant Professor, Roger Williams University School of Law [email protected] What rights does an employer have in its workers’ social media accounts? Increasingly, using social media is a key part of a company’s branding strategy, consumer outreach, and market research efforts. Success in the social media context, however, typically requires a sense of personal interaction. Accordingly, companies rely on their employees not only to converse with the public on behalf of the company, but also to inject their personalities into the conversation. The goodwill associated with an account and the build-up of links enabling direct communication with key communities can be quite valuable to a company. When does the company have a right superior to that of a worker to an account? Due to the personal nature of these accounts and their dependence on third party social media services, the accounts would seem to fall outside of the employer’s purview. Yet employees use them at least in part to further their employer’s interests. On the one hand, companies should be rewarded for their efforts to build their brand, serve their customers, and conduct market research with the right to keep the account and its associated value. On the other hand, the public relies on the authenticity of the personal voice behind the account. Indeed, the value of the account – both to the employer and to the public – often depends on its expression of a specific personality. These concerns must be balanced in determining who has the superior right of access. The Uneasy Case Against Copyright Trolls Shyamkrishna Balganesh Assistant Professor of Law, University of Pennsylvania Law School [email protected] | Bio The copyright troll and the phenomenon of copyright trolling have thus far received little attention in discussions of copyright law and policy. A copyright troll refers to an entity that acquires a tailored interest in a copyrighted work with the sole objective of enforcing claims relating to that work against copiers in a zealous and dogmatic manner. Not being a creator, distributor, performer, or indeed user of the protected work, the
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