http://hdl.handle.net/2027.42/55736 2013-06-18T22:57:04Z http://hdl.handle.net/2027.42/90848 Antibiotic Resistance Litman, Jessica In this essay, written for the 30th Anniversary of Cardozo’s Arts and Entertainment Law Journal, I revisit the ruinous litigation strategy copyright owners pursued after Napster to secure control of the market for personal uses of copyrighted works, which I wrote about ten years ago in War Stories, 20 Cardozo Arts & Ent. L.J. 337 (2002). The litigation campaign had effects that copyright owners now have reason to regret. Medical experts tell us that powerful antibiotics are highly effective in killing off both good and bad bacteria, but at a significant risk. Bugs that survive the treatment grow bigger, stronger, and resistant to antibiotics. They become much more dangerous because they are harder to kill. Copyright owners’ indiscriminate litigation against new entrants into the entertainment and information marketplace killed off a broad swath of potential competitors and partners. The ones who were left faced a less crowded field because old media had helpfully cleared it for them. The scorched-earth litigation strategy temporarily cleared the field, and made room both for tepid, content-industry-controlled efforts to distribute music, books, and video online, and for new entrants with the stamina and resources to survive copyright infringement suits. Apple, Amazon, and Google took advantage of that environment to grow into dominant distributors who are obligatory partners for any serious online content distribution plan, and who insist on calling the shots on price, format, and other matters that content owners believe should rightfully be under their own control. 2012-04-01T00:00:00Z http://hdl.handle.net/2027.42/90021 Household Politics: Conflict in Early Modern England Herzog, Don 2012-03-06T00:00:00Z http://hdl.handle.net/2027.42/85163 Readers' Copyright Litman, Jessica This essay is part of a project intended to help reclaim copyright for readers, listeners, and viewers. A system of copyright protection makes little sense unless it is designed to encourage the use and enjoyment of the works it induces authors to create and publishers to disseminate. I argue that a clear-eyed examination of copyright's history reveals that solicitude for readers and members of the audience is, in fact, deeply encoded in copyright's DNA. Recently, readers' interests have faded in apparent importance in the copyright scheme in ways that have unbalanced the copyright system, and undermined public support for copyright law. In response to growing criticism of copyright, some of copyright law's most ardent supporters have insisted that users have no rights, should have no rights, and have never had rights in the copyright scheme. That approach, I suggest, is making the problem worse, not better. Copyright seems out of whack because it has forgotten its most important constituents. In this essay, I take a series of very small baby steps in the direction of recognizing rights and liberties within the copyright system for readers, listeners, viewers and other members of the copyright audience. 2011-06-01T00:00:00Z http://hdl.handle.net/2027.42/78208 The Invention of Common Law Play Right Litman, Jessica In this paper, written for Berkeley’s symposium on the 300th birthday of the Statute of Anne, I explore the history of the common law public performance right in dramatic works. Eaton Drone dubbed the dramatic public performance right “playright” in his 1879 treatise, arguing that just as “copyright” conferred a right to make and sell copies, “playright” conferred a right to perform or “play” a script. I examine case law and customary theatrical practice in England, and find no trace of a common law play right before 1833, when Parliament established a statutory public performance right for plays. Similarly, in the United States, the first claims of a common law right to control public performances appeared only after Congress enacted a statutory dramatic public performance right in 1856. Courts and lawyers developed a common law literary property right to control public performances in order to permit the proprietors of dramatic works to recover even though there were formal defects in their U.S. copyright registrations. Eaton Drone then used those cases as a basis for embroidering a full-blown common law literary property right purportedly based in natural law. Courts adopted Drone’s version of common law play right and followed it for the next thirty years. (The breadth of the common law claim, however, made little difference to actual playwrights, who were deemed to have assigned their common law rights to the producers of their plays.) This history suggests that the rights that we perceive as inherent or natural are fundamentally contingent on what rights already have names and a path to enforcement. 2010-11-01T00:00:00Z