Fred von Lohmann

In the years following the Federal Circuit's 2014 ruling in Oracle v. Google, there has been a new wave of software interface cases that fit a recurring pattern: a market leader asserts a copyright claim over an interface - the method of operating the software - in an effort to bar a competitor from entering the market. The claim is not that the competitor is copying and redistributing the incumbent's source or object code. Instead, the allegation focuses on the competitor creating original… Show more

In the years following the Federal Circuit's 2014 ruling in Oracle v. Google, there has been a new wave of software interface cases that fit a recurring pattern: a market leader asserts a copyright claim over an interface - the method of operating the software - in an effort to bar a competitor from entering the market. The claim is not that the competitor is copying and redistributing the incumbent's source or object code. Instead, the allegation focuses on the competitor creating original software that reimplements some or all of the interface. The goal in each of these cases is to force competitors to create an entirely original interface as a precondition of market entry, thereby keeping switching costs high for the incumbent's existing customers. It is difficult to see why copyright law should tolerate these kinds of claims, and their proliferation should trouble those interested in preserving competitive entry and innovation in software-driven industries. Show less

Much ink has been spilled explaining how the protection of exclusive rights in intellectual property (IP) has spurred innovation, creativity and culture. In today’s digital economy, however, a corollary to this axiom has emerged: Sensible limitations on those exclusive rights are just as crucial for innovation, creativity and culture. For copyright, in particular, limitations on exclusive rights are driving economic growth, opening new opportunities for creators and incubating new technologies.… Show more

Much ink has been spilled explaining how the protection of exclusive rights in intellectual property (IP) has spurred innovation, creativity and culture. In today’s digital economy, however, a corollary to this axiom has emerged: Sensible limitations on those exclusive rights are just as crucial for innovation, creativity and culture. For copyright, in particular, limitations on exclusive rights are driving economic growth, opening new opportunities for creators and incubating new technologies. This perspective reveals limitations on and exceptions to copyright not as grudging concessions, but rather as coequal partners with exclusive rights in copyright’s mission to create incentives for culture and innovation. Show less

American consumers increasingly take iPods, TiVos and similar private copying technologies for granted. Yet copyright law lacks a coherent account for this private, nontransformative copying. This article contends that copyright law's historical tolerance for such copying as a fair use has served as an important element of both copyright and innovation policy.

This paper argues that the DMCA fails in light of its stated goal—namely, reducing the threat of copyright infringement in the digital age. Trends in digital distribution technologies, moreover, indicate that any regulatory regime focused on TPMs as a solution to this problem may be doomed to fail. In short, the developments of the last five years suggest that policy-makers should reevaluate whether legal prohibitions against the circumvention of TPMs represent the best regulatory lever for… Show more

This paper argues that the DMCA fails in light of its stated goal—namely, reducing the threat of copyright infringement in the digital age. Trends in digital distribution technologies, moreover, indicate that any regulatory regime focused on TPMs as a solution to this problem may be doomed to fail. In short, the developments of the last five years suggest that policy-makers should reevaluate whether legal prohibitions against the circumvention of TPMs represent the best regulatory lever for addressing what has come to be known as copyright’s “digital dilemma.” Show less