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SUNY Buffalo Law School
Malkan, Jeffrey

1.       Justifications for Copyright
a.       Title 17 of US Code – Copyright Act
                                       i.            Constitutional Basis (embodied in: Article I, Section 8, Clause 8: “The Congress shall have power… To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
1.       Embodiment of Incentive Rationale
2.       Embodiment of Utilitarian/Positivist Theory
                                      ii.            Statutes Governing Copyright
1.       1909 Act: Statutory Supplement 323
2.       1976 Act: Effective January 1st 1978
a.       Not retro-active so any works created before 1978 will substantially be governed by the 1909 Act. 
b.      Limits in statutory language
                                       i.            Authors and Their Writings
1.       Only writings and authors can be protected
c.       Tangible Property vs. Intangible Property
                                       i.            Intangible Property: The author’s expression, this is the intangible expression that the author has rights to
                                      ii.            Tangible Property:
1.       Section 102(a): Copyright protects works of authorship fixed in a tangible medium of expression.   The copyright does not attach to the work until fixation has occurred, however the work that is protected is not the tangible copy. 
a.       Fixation (in a tangible medium of expression): When the work goes from intangible to tangible
b.      Copyright protects the intangible work that is expressed in the tangible medium of expression
2.       Ex. A copy of the work
d.      Copyright Characterized as a Statutory Monopoly
                                       i.            The copyright owner controls a monopoly on the rights to the book. 
                                      ii.            After a period of time the copyright/monopoly expires and therefore is subject to competition
e.      Countervailing Considerations
                                       i.            Subsequent creators should be able to build upon previous works to create new works
                                      ii.            We have a keen interest in promoting a free exchange of ideas
1.       1st amendment for free speech etc.
f.        Why do we have Copyright Law?
                                       i.            Helprin/NY Times Article: Why are there limitations to copyright law?
1.       Questioning distinction between real property, personal property, and intellectual property.
a.       The difference between IP and real or personal property is that there is no sense of control or attachment to the piece of property as there is to tangible property, because without copyright we would have no control over the works at all. This is a tradeoff for the protection of the work.
2.       Equates limitations on copyright to government takings with no compensation. The government takes the work and gives it to the public domain without any compensation.
3.       Scope and Duration of Copyright: 
a.       Scope: You don’t want the rights so broad that an author cannot completely prohibit another author from writing any book on the same topic. There are limitations to the scope.
b.      D

ving a legitimate legal authority
a.       Basis for Constitution’s copyright clause: Better for society as a whole
                                    iii.            Posner on Copyright Law: Pg 20-21 in Casebook
1.       Copyright trades off the costs of limiting access to a work against the benefits of providing the incentives to create the work in the first place
2.       It must maximize the benefits from creating additional works minus both the losses from limiting access and the costs of administering copyright protection
g.       2 Views
                                       i.            High Protection: Very much in favor of copyright law and it should not be limited
                                      ii.            Low Protection (more popular view): Copyright is sort of an impediment to the free exchange of ideas and expressive works in the society. It is an intrusion into our lifestyles and it should be limited as much as possible. 
1.       Argument that copyright owners are greedy and want to inhibit dissemination of their works, and there is no proven benefit to society from the use of copyright.
a.       Skeptics argue that we don’t know if copyright gives incentive and encourages creativity at all, we don’t know what would happen if copyright was taken away (Ginsberg & Berger are both low protectionists)