Person:

Fisher, William

This report describes the first Harvard Law School open online course, first offered through HarvardX on the edX platform in Spring 2013. The course was taught by Professor William Fisher, who also prepared this report. Modified versions will be offered in the spring semesters of 2014 and 2015. This document describes and evaluates the 2013 version and outlines plans for the 2014 version.

Fisher argues the traditional knowledge of environmentalism and the public domain ideas by presenting two combined related themes involving the British colonist of Native Americans. The idea of devaluing the Indian's nonacquisitive, natural, respectful way of living lightly upon the land while conserving it, and fostering imperialism and unjust conquest. Among other things, he formulates three parallel provisions to the TRIPS Agreement to increase the leverage of the countries in determining the terms on which flora, fauna, medicinal knowledge, folklore, and traditional art forms are exploited by others.

With growing frequency, people who acquire mass-produced products are modifying them. The producers of some of those products seek to curb this practice. The law currently enables the producers to prevent or penalize some but not all of the ways in which their creations are being modified. Should those doctrines be altered - either to expand or to contract the producers’ power? A substantial body of literature addresses this question with respect to modifications of what might be called cultural products - sound recordings, movies, photographs, and the like. This Essay seeks to enrich that literature in two respects. First, it argues that user modifications of more tangible products - what might be called “equipment” - are equally common and deserve equal attention. Second, it offers a critical review of the policy arguments that have been or could be deployed in this area. The primary conclusion of that review is that the most forceful argument in favor of encouraging user modifications with respect to both cultural goods and equipment is not that it would promote economic efficiency or distributive justice, but that it would advance a substantive vision of human flourishing.

The fair use doctrine, codified at 17 U. S. C. § 107, permits a court to excuse a putatively infringing use of copyrighted material when the circumstances surrounding the use make it "fair." In this Article, Professor Fisher criticizes the doctrine - and in particular the changes wrought by two recent Supreme Court decisions - and considers how it might be improved. The most serious of the many problems with current fair use jurisprudence, he maintains, is that it rests on considerations derived from four disparate philosophic traditions; this incoherent foundation makes the application of the doctrine unpredictable and aggravates the cacophony of contemporary legal argumentation. To alleviate these problems, Professor Fisher considers two alternative strategies for reconstructing the field. First, he examines fair use from an economic standpoint, arguing that, by comparing the various entitlements that might be accorded copyright owners in terms of the incentives they provide for creativity and the costs they impose on consumers, courts could employ the doctrine to increase efficiency in the use of scarce resources. Second, building on a discussion of the limitations of the economic approach, Professor Fisher deploys a "utopian" analysis of fair use, suggesting how the doctrine might be recast to incorporate particular conceptions of the "good life" and the "good society." So formulated, the fair use doctrine would contribute to the realization of a more just social order and a more integrated legal discourse.

In several recent essays, legal scholars have examined the impact of popular ideologies on the substance and early interpretation of the original federal and state constitutions. 1 This Article seeks to refine that body of literature in three ways. First, drawing on work by social and intellectual historians, it argues that the political outlooks in general circulation in British North America during the Revolutionary and post-Revolutionary periods were more numerous -- and the relationships among them more complex -- than the bulk of the literature suggests. Second, it contends that the content and relative strength of those outlooks were affected by religious ideas and loyalties to a degree unappreciated by most of the legal scholars. Third, through an examination of three sets of doctrines limiting governmental interference with private property, the Article highlights the diversity of ways in which combinations of religious and political commitments impinged on constitutional law during this period.

The fair use case study puts students in the strategic and decision-making position of the legal counsel at Georgia State University, faced with responding to a copyright infringement suit from Cambridge University Press, SAGE Publishers, and Oxford University Press. The publisher-plaintiffs alleged that 6,700 electronic course materials exceeded reasonable standards of educational fair use. However, the “reasonable standards” were up for debate: the copyright statute of fair use is intentionally flexible, but over time, clear-cut extralegal guidelines made their way into court decisions. For decades, publishers, authors, libraries, and universities had yet to reach consensus about best practices and workable standards of fair use. With the complaint lodged against GSU, the contention had become cannibalistic: the publishing arms of universities suing universities.

The case surveys the legal and extralegal history of educational fair use; the relationship of universities and academic publishers; the history of litigation surrounding coursepacks, reserves, and electronic course materials; and the copyright policies at GSU. Participants adopt the position of GSU’s general counsel to weigh risk and decide whether GSU should settle or take the suit to trial. The case also gets students to consider the strengths and limitations of existing copyright law, the impact of technology on fair use, the interests of various stakeholders, and options for building consensus among such stakeholders.