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Full-Text Articles in Technology and Innovation
Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Gutte
Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Gutte
Faculty Scholarship
Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the "injurer-innovator problem." Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation …
The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman
The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman
All Faculty Scholarship
This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent …
Torts And Innovation, Gideon Parchomovsky, Alex Stein
Torts And Innovation, Gideon Parchomovsky, Alex Stein
All Faculty Scholarship
This Essay exposes and analyzes a hitherto overlooked cost of the current design of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts’ reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, the recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.
Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman
Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman
All Faculty Scholarship
While the benchmark of trademark infringement traditionally has been a demonstration that consumers are likely to be confused by the use of a similar or identical trademark to identify the goods or services of another, a court-created doctrine called initial interest confusion allows liability for trademark infringement solely on the basis that a consumer might initially be interested, attracted, or distracted by a competitor's, or even a non-competitor's, product or service. Initial interest confusion is being used with increasing frequency, especially on the Internet, to shut down speech critical of trademark holders and their products and services, to prevent comparative …