Brian Frye

• University of Kentucky

Copyright is a means to an end, not an end in itself. We created copyright because we wanted to encourage the creation and distribution of works of authorship, not because we wanted to enable copyright owners to control the use of the works they own. We stuck with copyright because it was the best tool we had, despite its flaws. Was copyright ever...

How could feminist perspectives and methods change the shape of property law? This volume assembles a group of diverse scholars to explore this question by presenting fundamental property law cases rewritten from a feminist perspective. The cases cover a broad range of property law topics, from landlord-tenant rights and obligations, patents, and z...

A History of Intellectual Property in 50 Objects - edited by Claudy Op den Kamp June 2019

According to the Supreme Court, copyright requires both independent creation and creativity. The independent creation requirement provides that copyright cannot protect an element of a work of authorship that is copied from a previously existing work. But scholars disagree about the meaning of and justification for the creativity requirement. The c...

According to the Supreme Court, copyright requires both independent creation and creativity. The independent creation requirement provides that copyright cannot protect an element of a work of authorship that is copied from a previously existing work. But scholars disagree about the meaning of and justification for the creativity requirement. The c...

In his controversial essay, “Faith-Based Intellectual Property,” Mark Lemley argues that moral theories of intellectual property are wrong because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological th...

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case....

The purpose of copyright is to encourage the production of works of authorship. Indeed, the Intellectual Property Clause of the United States Constitution explicitly grants Congress the power, "To promote the progress of science … , by securing for limited times to authors … the exclusive right to their … writings." In the 18th century, "science" m...

While courts do not consider the aesthetic value of an element of a work in determining whether it is protected by copyright, they do consider the aesthetic value of the use of a copyrighted element of a work in determining whether that use is a fair use. This asymmetry improperly and inefficiently discriminates in favor of copyright protection and...

The prevailing theory of charity law holds that the charitable contribution deduction is justified because it solves market and government failures in charitable goods by compensating for free riding on charitable contributions. This article argues that many market and government failures in charitable goods are actually caused by transaction costs...

The constitutional justification for intellectual property is welfarist. In theory, it increases social welfare by solving market failures caused by free riding on innovation and transaction costs. But intellectual property rhetoric is metaphorical. Among other things, we compare intellectual property owners to farmers, infringers to pirates, and a...

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amen...

Supreme Court justices both use and produce legal scholarship. This article identifies the ten most scholarly justices, based on both productivity and impact. The results suggest that scholarly productivity and scholarly impact are only partially correlated. They also suggest that scholarly productivity peaked in the mid-20th Century, but scholarly...

A transcription of Justice John Marshall Harlan's lectures on constitutional law, delivered at Columbian University Law School in 1897 and 1898. A companion to the article "Justice John Marshall Harlan Professor of Law," which is available at http://ssrn.com/abstract=1403917.

The story of Jack Smith’s film Flaming Creatures and the “Fortas Film Festival” illustrates the dialectic of obscenity. The obscenity doctrine expresses the conventional wisdom that the First Amendment actually protects art, and protects pornography only by extension. But Flaming Creatures and the Fortas Film Festival suggest that obscenity is dial...

Who is the most important avant-garde filmmaker? It depends who you ask. Different people value different things at different times. Fortunately, citation analysis can provide an objective answer. This article uses a citation study of The New York Times to measure the relative importance of avant-garde filmmakers. It concludes that, according to Th...

From 1889 to 1910, while serving on the United States Supreme Court, the first Justice John Marshall Harlan taught at the Columbian College of Law, which became the George Washington University School of Law. For two decades, he primarily taught working-class evening students, in classes as diverse as property, torts, conflicts of law, jurisprudenc...

This article provides a comprehensive history and interpretation of United States v. Miller, the only Supreme Court case construing the Second Amendment. It presents evidence Miller was a test case designed by the government to test the constitutionality of federal gun control. It shows the holding in Miller is narrower than generally assumed. It a...