Monthly Archives: January, 2025
Katharina de la Durantaye, ‘Control and Compensation. A Comparative Analysis of Copyright Exceptions for Training Generative AI’
ABSTRACT Law makers and administrative agencies around the globe have discussed whether the use of copyrighted content for the training of generative AI is or should be permissible without the rights holder’s consent, and whether their copyright laws should be amended to give rights holders either more or less say over such uses of their […]
Gilat Juli Bachar, ‘Just Tort Settlements’
ABSTRACT In the United States, most civil disputes settle, often under a cloak of secrecy. Recently, secret settlements – particularly those that conceal a matter of public interest – have come under intense public attention, spurring a wave of restrictive state and federal legislation. And yet, the attitudes of plaintiffs, such as aggrieved employees and […]
Paldor, Procaccia and Winter, ‘Preventing Class Action Sellouts’
ABSTRACT When class actions settle, the defendant and class counsel have a strong joint incentive to appropriate part of the class’s entitlement. The problem is long recognized, but neither existing mechanisms nor those suggested in the literature address it effectively. The current article proposes a market-based solution to the problem: Once a settlement is struck, […]
‘What if Producers Paid Us to Read Fine Print?’
Kelli Alces Williams, ‘Market Testing Boilerplate’, 74 Syracuse Law Review 229 (2024). One of my favorite cases from the perspective of consumer bargaining power is Boucher v Riner, which involved both my third-greatest physical fear (jumping out of a perfectly good flying airplane a few thousand feet above the ground) and my first-greatest jurisprudential concept […]
‘Properly distributing the burden of a debt, and the actual and presumed intentions of the parties: non-theories, theories and meta-theories of subrogation’
By means of the doctrine of subrogation, one person is substituted for another in the exercise of that other’s rights against a third person. In an oft-repeated (if not always apt) metaphor, the person receiving the benefit of subrogation is said to stand in the shoes of the other as against the third party (eg, […]
Tina Stephen, ‘Federal trade commission’s rule on non-compete ban: Relevance for a common law jurisdiction – India’
ABSTRACT Countries have been pondering about the use and legality of non-compete agreement for many years. Lack of regulatory clarity on these covenants has allowed companies to use these contracts with impunity. These covenants not only restrict the employees from joining a competitor but also refrain them from having a competing business of their own. […]
Mezei, Senftleben, Sganga and Geiger, ‘Opinion of the European Copyright Society on CG and YN v Pelham GmbH and Others, Case C-590/23 (Pelham II)’
ABSTRACT In its questions for preliminary ruling, the German Federal Court of Justice asked for clarification as regards the definition of pastiche under EU copyright law; and, in essence, whether and how this concept applies to musical sampling. In the present Opinion, the European Copyright Society takes the view that pastiche is an autonomous concept […]
‘Clause for celebration: the effectiveness of entire agreement provisions’
Entire agreement clauses are very common. This recent decision confirms their effectiveness: JMW Solicitors v Injury Lawyers 4U. Some firms of solicitors, including JMW, set up a company, Injury Lawyers 4U. The original shareholders’ agreement was amended by a supplemental deed to change the price of participation depending on whether you were a founding shareholder […]
Chan and Low, ‘Crypto Tracing Stumbles at Trial’
ABSTRACT D’Aloia v Persons Unknown [2024] EWHC 2342 (Ch) is the first English judgment on crypto recovery following a full trial on the merits. Notwithstanding earlier optimism boosted by several successful applications for summary judgment, the court wholly rejected both the conclusions and the methodology of the claimant’s crypto forensics expert, which was fatal to […]
Baharad and Parchomovsky, ‘Fair Use and Fair Price’
ABSTRACT In this Article, we present and develop a new justification for the fair use doctrine. The accepted lore among copyright law scholars is that fair use is a means for overcoming a market failure in the form of high transaction costs. According to this view, the doctrine sanctions unauthorized use of copyrighted works in […]