Author Archives: Richard Posner

Fair Use Elaborated

I’ve received some interesting comments on my last posting. One of the commenters asked me to explain the fair use doctrine; here goes. The doctrine, which has close counterparts in patent and trademark law, permits a degree of unauthorized copying of copyrighted works. Shocking! If a teenager takes a joyride in my car and is arrested, can he defend by arguing that it was a “fair use”? No, but the example points up an important difference between physical and intellectual property, a difference obscured by the use of words like “theft” and “piracy” to describe unauthorized copying. If someone takes… Continue reading

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Fair Use and Licensing

“Fair use” is a doctrine of copyright law (with counterparts in patent and trademark law as well) that allows a degree of unauthorized copying of copyrighted works. Shocking! Squatters’ rights! Can a teenager take my car for a joy ride and when he’s caught plead “fair use”–that I wasn’t using my car and didn’t miss it for a second! But there’s a big difference between physical and intellectual property. Only one person at a time can use my car, so, in general if not in every instance, someone who takes it interferes with my use of it. But if someone… Continue reading

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Licensing and Fair Use

The conventional economic objection to copyright and other IP propertization is that it limits access and by doing so causes a misallocation of resources: making and distributing another copy of some piece of software might cost nothing (well, virtually nothing), and yet if the copyright owner charges a price of say $100 for the software, people who value it at more than zero but less than $100 will be deflected to substitute products that may be more costly or of inferior quality; and that’s inefficient. Of course, limiting access may (or may not) be the least objectionable way of incentivizing… Continue reading

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Eldred Revisited

Larry Lessig from time to time flagellates himself about losing the Eldred case in the Supreme Court. He shouldn’t; it was unwinnable for a host of reason (the lopsided vote–7-2–is a clue). Yes, Congress can confer copyrights only “for limited Times,” but what’s “limited” is a matter of perspective. If the Sonny Bono Copyright Term Extension Act had been in force in Shakespeare’s time (there was no copyright then, in fact), then, since Shakespeare died in 1616, his works would have entered the public domain in 1686–more than 300 years ago. So Larry focused on the retroactive feature of the… Continue reading

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When Judicial Lips Are Sealed

Sad to say, there are two things that, as a judge, I can’t talk about in public (and this is in public). One is pending cases, which means (in any court, not just mine) cases in which all possibilities of further proceedings, such as an appeal to the Supreme Court, have not yet been exhausted. Oh I can mention a case, e.g., Grokster, which Tim discussed and linked to, or even talk around it a bit, but I can’t comment directly or indirectly on the merits of the decision. I can, though, point you to a case, related to Grokster,… Continue reading

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The Changing of the Guard

Tim having vacated the premises early, I thought I should accelerate my entry, especially to correct his statement that “Eight Heads in a Duffel Bag” is my favorite movie. It was my favorite movie, but that was before I saw “The Matrix,” which is my current favorite (though just the first of the three Matrix films), and which seems to me a portent of one of the directions in which technology is moving us. The social and legal impact of technology is going to be the principal theme of my week as Larry’s guest blogger…. Continue reading

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Guest Blogger

I’m Dick Posner; I’ll be Larry’s guest blogger next week (week of Aug. 23). If you don’t know anything about me, you can check my home page: Richard A. Posner… Continue reading

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