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The Copyright Wasteland
Get PDFThe Copyright Act grants certain exclusive rights to authors of creative works. But many of these exclusive rights are notoriously underspecified. And while a rich body of case law grapples with one copyright entitlement—the right to reproduce the copyrighted work— courts rarely engage in earnest with other exclusive rights. As a result, courts appear to have only a rudimentary understanding of the precise scope of copyright law. Because courts focus almost singularly on questions of reproduction, other exclusive rights fall by the wayside. This Article contends, counterintuitively, that the problem is traceable to a much-maligned feature of our copyright system: statutory damages. The Copyright Act allows plaintiffs to recover damages without proof of actual harm. But in practice, critics say, statutory damages often prove excessive, punitive, or otherwise arbitrary. Recent studies show that plaintiffs leverage the specter of statutory damages to obtain favorable settlements on the basis of borderline claims. This Article argues that statutory damages also frustrate the development of substantive copyright law. Statutory damages are awarded per infringed work, no matter how many different rights had been violated in that work. Once courts find an infringement of any right—usually, the right of reproduction—they have little incentive to consider additional violations. If the defendant is found to have reproduced the plaintiff’s work, little else matters. Courts thus gloss over certain exclusive rights and dwell instead on questions of reproduction. The result is a doctrinal wasteland—a vast sphere of little-explored exclusive rights. This Article spotlights the problem, considers its implications, and forges a path toward mending copyright’s doctrinal wasteland
The BYU Advocate
Get PDF… I am inspired with a sense of hope and gratitude. We will continue to experience adversity and to face obstacles—socially, personally, and politically—that may at times seem intractable. But judging by the successes of our past and seeing in our students a glimpse of our future, I am confident that BYU Law and the BYU Law community will continue to flourish in adversity. – D. Gordon Smithhttps://digitalcommons.law.byu.edu/annual_reports/1011/thumbnail.jp
Clark Memorandum: Fall 2022
No full textA Certain Idea of BYU Building Bridges Between the Latter-day Saint and Jewish Communities Exemplary Scholars, Devoted Leadershttps://digitalcommons.law.byu.edu/clarkmemo_gallery/1068/thumbnail.jp
Nontraditional Investors
Get PDFIn recent years, nontraditional investors have become a major player in the startup ecosystem. Under the regulatory regime of U.S. securities law, those in the public realm are heavily regulated, while those in the private realm are largely left alone. This public-private divide, which is a fundamental organizing principle of securities law, has eroded with the rise of nontraditional investors. While legal scholars have addressed the impact of some of these nontraditional investors individually, their collective impact on deal terms, deal timelines, due diligence, and board configuration has not been discussed in a holistic manner; neither has their impact on the investor landscape and securities law. This Article provides the first descriptive account of nontraditional investors throughout startups’ lifecycles and the normative implications of their participation in the venture capital ecosystem. Ultimately, nontraditional investors helped to facilitate the rise of unicorns which contributed to the “breakdown” of the public-private divide, with the attendant problems related to investor protection, corporate governance, valuation bubbles, and the like. Once thought of as outliers, nontraditional investors have influenced the venture capital market and the ways in which deals were conducted in significant ways. They drove capital investment trends and created an increasingly competitive deal environment in venture capital. Outsized funds became the norm, and the size and valuation of venture capital deals at each stage of a startup grew ever larger. In some cases, it led to less investor oversight and due diligence. Although one of the hallmarks of venture capital investors is their hands-on approach, that is not the case for all of the nontraditional investors. Board dynamics and economics and control – the two underlying principles of venture capital deals – shifted in favor of the founders as nontraditional investors proliferated and the economy remained strong. However, the recent economic downturn has led to a recalibration of nontraditional investors’ influence. In this environment, founders are no longer able to dictate the terms of venture capital financings, the investment pace has slowed, and while some nontraditional investors may retreat and reassess, their influence in the venture capital ecosystem will continue to reverberate in the years to come