Courts can’t stick their heads in the sand to an obvious way that a new technology might severely harm the incentive to create, just because the issue has not come up before. Indeed, it seems likely that market dilution will often cause plaintiffs to decisively win the fourth factor—and thus win the fair use question… Read More
A common disparagement of copyright advocacy is that it is anti-technology. Despite overwhelming evidence that professional creators are early adopters of new technlogical developements, the talking point persists that enforcing the rights of creators can only “stifle innovation.” This “Luddite” critique of copyright rights was used to defend the predatory models of social and streaming… Read More
The first copyright case decided at the U.S. Supreme Court was Wheaton v. Peters in 1834. There were six justices at the time, including the oft-quoted Joseph Story, and in a 4-2 decision, the Court made what I believe was a textual and, therefore, doctrinal error. The allegedly infringed works at issue were published reports… Read More