In the late 1980s and early 1990s, it was widely reported that the United States faced a solid waste crisis. Existing landfills were reaching capacity or being shut down because of more stringent regulations while waste volumes were continuing to rise. At the time, several market-oriented policy analysts advocated the adoption of variable rate charges for mixed refuse in conjunction with curbside pick-up of recyclables (without charge) as a means of reducing waste volumes and diverting recyclable material to more valuable uses. During the course of the past decade, such policies have been adopted widely throughout the United States - approximately 20 percent of the U.S. population now face variable rate charges for mixed refuse collection. Even more have curbside collection of recyclable materials. This article collects and reviews empirical studies evaluating the effects of variable rate pricing. It finds that these policies have been quite effective as a means of boosting diversion rates beyond the levels that can be achieved through curbside collection of recyclables alone. The overall cost-benefit analysis of such programs is modestly favorable. Since many states and communities have committed to achieving specified waste diversion targets, variable rate policies have been a cost effective policy tool. The experience with variable rate policies represents a promising example of non-coercive, information-oriented government intervention. With a relatively small budget and no authority to impose household solid waste policy on local governments, EPA has been remarkably successful at developing and diffusing effective solid waste management policies. The economic theory underlying variable rate pricing has proven, after some tinkering at the implementation stage, to be quite workable in practice. In fact, the practical realities of implementing charges have shown that theoretical perfection in terms of getting the prices right is less important in the grand scheme than keeping the transaction costs manageable. Looking forward, variable rate pricing can be expected to become even more economically advantageous as recycling markets continue to mature, landfill tipping fees rise, and improved technologies for curbside collection, monitoring, billing, and measuring waste develop.

The federal intellectual property system serves as a principal means of promoting “progress in Science and useful Arts” through the provision of limited monopolies to authors and inventors. By this logic, enhancing the scope or enforceability of intellectual property rights increases the expected reward to those engaged in intellectual work, thereby spurring intellectual creativity and the exploitation of works. Inversely, impediments to the enforcement of the intellectual property rights or limitations on remedies reduce this reward stream and opportunity for exploitation, thereby dampening the incentives of those who engage in creative enterprise.

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This article is based on an amicus brief filed in METRO-GOLDWYN-MAYER STUDIOS INC., et al., v. GROKSTER, LTD., a case before the U.S. Supreme Court addressing indirect copyright liability for distribution of software that facilitates file sharing on peer-to-peer (P2P) networks. This case turns on whether the Supreme Court’s landmark decision in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), effectively immunizes the software distributors in this case from contributory or vicarious liability on the grounds that such software is capable of substantial non-infringing use. The article re-examines Sony’s jurisprudential foundation. In that case, the Court transplanted an express categorical limitation on indirect liability from the Patent Act into the Copyright Act, notwithstanding that Congress had only recently reformed the Copyright Act without including any such limitation on liability among the many express exemptions, limitations, and immunities contained in the statute. Furthermore, Congress reaffirmed the continued applicability and evolution of infringement standards through case-by-case adjudication. The Sony decision failed to examine the important differences between patent and copyright protection. Whereas patent law seeks to promote technological innovation and evolved a staple article of commerce doctrine primarily out of concern for unduly expanding patent scope, copyright law seeks to promote cultural and social progress, manifesting a more cautious stance toward technological dissemination, particularly where a technology threatens widespread piracy of expressive works. Products that encourage patent infringement do not threaten harm beyond a single patent or cluster of patents, whereas the technology at issue in the Grokster case threatens systemic harm to the copyright system by promoting rampant unauthorized distribution of all manner of works of authorship. Therefore, the uncritical transplantation of Patent Act’s immunity for dual-use technologies into the Copyright Act poses grave dangers that were beyond the Supreme Court’s view when it decided the Sony case in 1984, before the digital revolution took hold. Furthermore, amendments to the Copyright Act since the Sony decision demonstrate that Congress does not believe that dual-use technology – i.e., technology that is capable of both infringing and substantial non-infringing uses – should be treated as inviolate under copyright law. Rather, Congress has shown that it sees a need to balance the efficacy of the copyright system for promoting creative expression against social interests in technological innovation and consumer autonomy.

The principal recent studies of patent reform (NAS (2004), FTC (2003), Jaffe and Lerner (2004)) contend that a uniform system of patent protection must (or should) be available for “anything under the sun made by man” based upon one or more of the following premises: (1) the Patent Act requires such breadth and uniformity of treatment; (2) “discriminating” against any particular field of “technology” would be undesirable; (3) discrimination among technologies would present insurmountable boundary problems and could easily be circumvented through clever patent drafting; and (4) interest group politics stand in the way of excluding any subject matter classes from patent law or reforming the patent law requirements, duration, defenses, or remedies for a particular subject matter class. As a result, these studies consider and recommend reforms that would apply to all fields of patentable subject matter (“systemic reforms”) and largely ignore reforms that would either bar particular classes of “technology” from patent protection (e.g., software, business method, genomic sequences) or afford different classes of patentable subject matter different requirements or remedies (“categorical reforms”). This article sets forth a method for evaluating and formulating patent policy that considers both systemic and categorical reforms and sketches out how that method could be applied to the current patent “crisis.”

In order to protect authors and artists from unremunerative transfers of copyright, Congress for the first time created, in the Copyright Act of 1976, an inalienable right to terminate transfers of copyrights during a five-year window beginning 35 years from the date of the transfer. Such inalienablity, however, posed substantial uncertainty to the exploitation of many works of authorship. In particular, works combining multiple copyrighted elements — such as collective works and motion pictures — could become unavailable due to the difficulty of relicensing all of the constituent components. For that reason, Congress provided a mechanism for precluding termination of at least some transfers. In the case of a “work made for hire,” the hiring party acquires ownership of the copyright upon a work’s creation, thereby dispensing with any transfer from the author and hence obviating any termination of such transfer 35 years later. To avoid the exception swallowing the rule, Congress circumscribed the situations under which a work qualifies for treatment as a “work made for hire.” It must either be prepared by a true employee or specially ordered or commissioned and fall within one of nine categories, such as “contribution to a collective work” and “part of a motion picture or other audiovisual work.”

This article examines a potentially significant and heretofore unrecognized conundrum of the 1976 Copyright Act relating to the “contribution to a collective work” category. Congress defined “collective works” as comprised of “preexisting materials.” Yet the work made for hire provision contemplates “contributions to collective works” being specially ordered or commissioned. How is it possible for a publisher or record label to specially order or commission contributions that already exist? The authors’ journey into the complex evolution of the 1976 Copyright Act reveals that Congress did not intend that “contributions to collective works” preexist their commissioning, even though the inartful drafting of some of the Section 101 definitions suggest otherwise. For purposes of applying the work for hire doctrine, courts should either ignore the use of the term “preexisting” in the definition of “collective work,” or interpret the term “contribution to collective work” to include “contribution to yet-to-be-assembled collective work” in the definition of “work made for hire.” The article also elucidates the legislative history underlying the right to terminate transfers, a right which will have justiciable implications beginning in 2003.

The recent Supreme Court battle over the legal standard for permanent injunctions in patents cases (eBay v. MercExchange) marked an important new front in the Property Rights Movement's campaign to establish a strict and broad interpretation of property rights and their enforcement. This essay explores whether Professor Richard Epstein's embrace of intellectual property rights is likely to produce a durable marriage of traditional property rights theory and intellectual property protection or merely represents a fling that will not withstand divisive relational pressures. It shows that philosophical, functional, intellectual, and political tensions stand in the way of a stable or enduring relationship between advocates of strong and unyielding property rights and intellectual property owners. The need for dynamism and adaptability within the intellectual property rights field may well weaken the support for absolutism in property jurisprudence and policy, reinforcing the shift away from the Blackstonian conception of property.

From its earliest manifestations, copyright law has struggled to deal with the equitable and efficient division of value and control between creators and the enterprises that distribute their works. And for almost as long as copyright has existed, there has been concern about creators getting the short end of the stick in their dealings with distributors. Since 1909, Congress has sought to protect authors and their families by allowing them to grant their copyrights for exploitation and then, decades later, to recapture those same rights. After judicial interpretation of the 1909 Act frustrated this intent by upholding advance assignments of renewal terms, Congress spoke unambiguously in 1976: “Termination of the grant may be effected notwithstanding any agreement to the contrary . . . .” Yet recent decisions in the Ninth and Second Circuits have eviscerated that clear Congressional command by permitting a grantee to renegotiate the terms of the grant so as to frustrate recapture by the author’s family. After critically analyzing these decisions, this article provides a comprehensive framework for restoring the integrity and clarity of the termination of transfer provisions.

Prior to the emergence of peer-to-peer technology, the Copyright Act’s distribution right was largely dormant. Most enforcement actions were premised upon violations of the reproduction right. The relatively few cases invoking the distribution right involved arcane scenarios. During the past several years, direct enforcement of the Copyright Act against file sharers has brought the scope of the distribution right to center stage. Whereas the 1909 Act expressly protected the rights to “publish” and “vend,” the 1976 Act speaks of a right to “distribute.” Interpreting “distribute” narrowly, some courts have held that copyright owners must prove that a sound recording placed in a peer-to-peer share folder was actually downloaded to establish violation of the distribution right. Other courts hold that merely making a sound recording available violates the distribution right. The ramifications for copyright enforcement in the Internet age are substantial. Under the narrow interpretation, the relative anonymity of peer-to-peer transmissions in combination with privacy concerns make enforcement costly and difficult. A broad interpretation exposes millions of peer-to-peer users to potentially crushing statutory damages. Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.