Professor Robert Ellickson has proposed that a close-knit community will develop rules, customs, and traditions addressing property that maximize the group’s welfare—independent of government intervention.
Copyright Law
My thanks to members of the Oxford Internet Institute’s Digital Ethics Lab, participants in the Cambridge Faculty of Law CIPIL Intellectual Property Seminar Series, participants in the session on “Data Commons, Privacy, and Law” at the ECREA Digital Culture and Communication Section Conference, as well as to Oren Bracha,Pamela Samuelson, and participants in the CyberProf listserv conversation on algorithmic fair use for helpful discussion in preparation of this Essay. Portions of this research were made possible by support from the US-UK Fulbright Commission.
Law, like other human artifacts, is costly to produce, to distribute, and to apply.
Imagine an author. One day, she sees a website that allows users to annotate short stories in an innovative way, providing a variety of short stories with which to experiment. As she peruses the site, she finds that some of the stories are actually hers.
Earlier versions of this Article were presented at the 2015 Intellectual Property Scholars Conference; the University of Pennsylvania Law School Center for Technology, Innovation and Competition’s 2015 Copyright Scholarship Roundtable; a workshop on the Oxford Handbook on Intellectual Property at Tel Aviv University; the Fourth Global Congress on Intellectual Property and the Public Interest at the National Law University, Delhi, India; and the 2015 annual conferences of the Association of Law, Property, and Society and the International Society for New Institutional Economics. This Article greatly benefited from the comments and criticisms of participants in those conferences, as well as from those of Larry Alexander, Shyamkrishna Balganesh, Oren Bracha, Ben Depoorter, Kristelia García, Jane Ginsburg, Brad Greenberg, Paul Heald, Justin Hughes, Roberta Kwall, Orly Lobel, Glynn Lunney, David McGowan, Joseph Miller, Justine Pila, Lisa Ramsey, Terrence Ross, Guy Rub, Matthew Sag, Pam Samuelson, Maimon Schwarzschild, Ted Sichelman, Steve Smith, Horacio Spector, Christian Turner, Chris Wonnell, and Christopher Yoo; and from excellent research assistance from Ananth Padmanabhan. We are especially grateful to Wendy Gordon for critical comments and constructive suggestions and for encouraging us to carefully rethink our original positions.
I. Current Understandings of Fair Use
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