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Pallante President and CEO, Association of American Publishers “Thank you to the Copyright Society for the honor of delivering this lecture, which has been given by so many people I admire. It is wonderful to see everyone, and to be in New York — a city that is so important to authors, artists, publishing, and of course copyright law.” Read Article LEARNED HAND'S COPYRIGHT LAW Shyamkrishna Balganesh Columbia Law School Learned Hand is often described as the greatest copyright judge to have ever sat on the bench. By the 1950s, the most important parts of U.S. copyright law had been his creation, all from his time as a judge on the Second Circuit Court of Appeals. Despite all of this, there has been little systematic analysis of ... Read Article UNDERSTANDING INTELLECTUAL PROPERTY: EXPRESSION, FUNCTION, AND INDIVIDUATION Mala Chatterjee Columbia Law School Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyr... Read Article ANSWERING QUESTION ONE IN GOOGLE V. ORACLE: THE CREATIVITY OF COMPUTER PROGRAMMERS Ralph D. Clifford University of Massachusetts School of Law Firas Khatib University of Massachusetts Dartmouth Trina C. Kershaw University of Massachusetts Dartmouth Adnan El-Nasan University of Massachusetts Dartmouth There is a misconception that computer programs are extremely limited by set expressions required by the computer system or the problem being coded and thus have little room for creativity. Under this fallacy, some argue that copyright protection for software is practically nonexistent as the Feist minim... Read Article ADMINISTRATIVE DEVELOPMENTS Administrative developments from Library of Congress. Read Article In this issue, we are pleased to offer four articles that illustrate the diverse scholarship present in the field of copyright. We begin with Maria A. Pallante’s insightful Brace Lecture The Art and Innovation of Exclusive Rights. In it, she draws on her rich and deep experience as a copyright lawyer and Register of Copyrights to remind us that the copyright’s exclusive rights often benefit creators and creativity in unexpected ways that unfold over time. She counsels that the value of exclusive rights may not always be apparent, but that does not mean that social benefits do not exist. It therefore may not be wise to precipitously limit the rights granted to authors. Next, Shyamkrishna Balganesh (who will give our next Brace Lecture) provides a fascinating look at the jurisprudence of Learned Hand, the author of many influential copyright opinions. In his article Learned Hand’s Copyright Law, Balganesh attributes Hand’s long-lasting effect on copyright to Hand’s particular judicial method. This method allowed Hand to artfully balance copyright’s many nuances and demands in a cogent, coherent way that Balganesh recommends to judges today. Our next article is Mala Chatterjee’s Understanding Intellectual Property: Expression, Function, and Individuation. In it, she conducts a nuanced comparison between copyright and patent law to argue that doctrinal differences between the two fields can be explained by copyright’s “author individuation” and patent law’s “structure individuation.” Among other things, Chatterjee explains how this supports the existence of the independent creation defense in copyright and its absence in patent. Finally, we have Answering Question One in Google v. Oracle: The Creativity of Computer Programs by Ralph D. Clifford, Firas Khatib, Trina C. Kershaw, and Adnan El-Nasan. The authors argue that the range of expression and degree of creativity in software is much greater than many suppose. Drawing upon empirical work they conducted, they assert that the creativity of computer programmers compares favorably with that of authors in more conventional copyright-protected fields such as literature. Accordingly, they concluded that copyright should protect computer software as broadly and aggressively as it does other, more conventional works. As always, we welcome the comments and suggestions of our readers. Alfred C. Yen Professor of Law and Dean’s Distinguished Scholar Boston College Law School alfred.yen@bc.edu
