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Articles 181 - 207 of 207
Full-Text Articles in Law
Symposium: Patent Rights And Licensing, Michael S. Baram, Ashley Stevens, Thomas Meyers, Michael J. Meurer
Symposium: Patent Rights And Licensing, Michael S. Baram, Ashley Stevens, Thomas Meyers, Michael J. Meurer
Faculty Scholarship
This panel will discuss intellectual property - the patent incentive, patentability issues, licensing, and litigation-related matters. It will be moderated by Dr. Ashley Stevens, the Director of the Office of Technology Transfer at Boston University. Ashley has multiple degrees, including a doctorate in physical chemistry from Oxford University. He has worked in the biotech industry for a number of years, mostly with startup companies and academic research organizations such as the Dana Farber Cancer Institute, where he was also Director of Technology Transfer. Ashley was instrumental in the startup and operations of firms such as Biotechnica International, and started his …
Fine-Tuning Tasini: Privileges Of Electronic Distribution And Reproduction, Wendy J. Gordon
Fine-Tuning Tasini: Privileges Of Electronic Distribution And Reproduction, Wendy J. Gordon
Faculty Scholarship
The United States Court of Appeals for the Second Circuit is arguably the soundest copyright court in the nation. In Tasini v. New York Times, it handled a challenge brought by a group of freelance writers against publishers and database proprietors. The controversy, now pending in the United States Supreme Court, has wide importance because it will determine what entitlements attach to a publisher who purchases a privilege to include a freelancer's story in the publisher's magazine or newspaper. Essentially, the issue is whether a publisher, who has not purchased the story's copyright and has not obtained an explicit …
The Constitutionality Of Copyright Term Extension: How Long Is Too Long?, Wendy J. Gordon, Jane C. Ginsburg, Arthur R. Miller, William F. Patry
The Constitutionality Of Copyright Term Extension: How Long Is Too Long?, Wendy J. Gordon, Jane C. Ginsburg, Arthur R. Miller, William F. Patry
Faculty Scholarship
I am Professor William Patry of the Benjamin N. Cardozo School of Law. I will be the moderator of this star-studded debate on the Sonny Bono Copyright Term Extension Act.
Ralph Sharp Brown, Intellectual Property And The Public Interest--Introduction, Wendy J. Gordon
Ralph Sharp Brown, Intellectual Property And The Public Interest--Introduction, Wendy J. Gordon
Faculty Scholarship
Ralph Sharp Brown crossed out the "Junior" that followed his name after his father died. In explanation of the hand-altered stationery, he said (if my recollection holds), "I'm the only one left now." Now, after Ralph's death, there may remain no Ralph Sharp Browns. But there are many law teachers who continue to wage the campaign that Ralph made his life work: to save an interdependent society from unnecessary and stagnating restraints on liberty. In the intellectual property area, Ralph sought to teach us that it can be both right and necessary to give individuals the liberty to "reap without …
Progressing Towards A Uniform Commercial Code For Electronic Commerce Or Racing Toward Nonuniformity?, Maureen A. O'Rourke
Progressing Towards A Uniform Commercial Code For Electronic Commerce Or Racing Toward Nonuniformity?, Maureen A. O'Rourke
Faculty Scholarship
The Magaziner Report encourages the development of a consistent commercial law environment against which electronic commerce transactions may take place. The author considers the current legal landscape, noting that while many efforts are underway to codify aspects of electronic commerce, these efforts are piecemeal in nature and may lead to the very lack of uniformity against which the Magaziner Report counsels. The author then briefly considers what lessons may be learned from the drafting history of the original U.C.C. as well as proposed Article 2B (now the Uniform Computer Information Transactions Act) governing transactions in computer information. She argues that …
Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke
Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke
Faculty Scholarship
In the last few years, the Internet has increasingly become a source of information even for the historically computer illiterate. The growing popularity of the Internet has been driven in large part by the World Wide Web (web). The web is a system that facilitates use of the Internet by helping users sort through the great mass of information available on it. The web uses software that allows one document to link to and access another, and so on, despite the fact that the documents may reside on different machines in physically remote locations. The dispersion of data that is …
Striking A Delicate Balance: Intellectual Property, Antitrust, Contract And Standardization In The Computer Industry, Maureen A. O'Rourke
Striking A Delicate Balance: Intellectual Property, Antitrust, Contract And Standardization In The Computer Industry, Maureen A. O'Rourke
Faculty Scholarship
Shortly before the Second Intermational Harvard Conference on Internet & Society, the Department of Justice ("DOJ") brought a widely publicized suit against the Microsoft Corporation. In its complaint, the DOJ charged Microsoft with engaging in a variety of antitrust wrongs connected with its alleged monopoly position in the market for personal computer ("PC") operating system software. The Conference panel on Antitrust and the Internet, which had planned to focus on how antitrust law affects standard-setting efforts and the implications for the Intermet, quickly abandoned that topic in favor of discussion of the Microsoft suit.
Defining The Limits Of Free-Riding In Cyberspace: Trademark Liability For Metatagging, Maureen A. O'Rourke
Defining The Limits Of Free-Riding In Cyberspace: Trademark Liability For Metatagging, Maureen A. O'Rourke
Faculty Scholarship
The Internet has the potential to revolutionize global communication, offering a relatively low-cost means for information exchange. Since its inception as a research network, the Internet has developed into a "a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services."' The World Wide Web ("Web"), a tool which helps to organize the enormous amount of information available on the Internet, has been a catalyst in the Internet's emergence as a viable commercial marketplace.
Intellectual Property As Price Discrimination: Implications For Contract, Wendy J. Gordon
Intellectual Property As Price Discrimination: Implications For Contract, Wendy J. Gordon
Faculty Scholarship
As people become enamored with the possible benefits of allowing price discrimination in contracts for intellectual goods, they should realize that traditional intellectual property law works by fostering price discrimination among customers. This simple fact has implications for federal pre-emption, and is a reminder of the complexity of the economic issues involved. Increasing a seller's ability to price discriminate will often involve increasing his monopoly power, with dubious welfare effects.
On Commodifying Intangibles, Wendy J. Gordon, Sam Postbrief
On Commodifying Intangibles, Wendy J. Gordon, Sam Postbrief
Faculty Scholarship
It was made clear long ago that property and value are different things. Value exists. It is a fact. It can arise from law, and much of law aims at creating more value in the world. But value can also arise in spite of law (consider, for example, the fortunes that bootleggers made during the Roaring Twenties), or in law's interstices. When a particular value arises despite a lack of explicit legal protection, its possessors often ask courts or legislatures to give them a legal entitlement to preserve and further exploit that value. Typically the holders demand (1) a liberty …
Price Discrimination, Personal Use And Piracy: Copyright Protection Of Digital Works, Michael J. Meurer
Price Discrimination, Personal Use And Piracy: Copyright Protection Of Digital Works, Michael J. Meurer
Faculty Scholarship
The growth of digital information transmission worries copyright holders who fear the new technology threatens their profits because of greater piracy and widespread sharing of digital works. They have responded with proposals for expanded protection of digital works. Specifically, they seek restrictions on personal use rights regarding digital works provided by the fair use and first sale doctrines. The proposed changes in the allocation of property rights to digital information significantly affect the ability of copyright holders to practice price discrimination. Broader user rights make discrimination more difficult; broader producer rights make discrimination easier. I argue that more price discrimination …
On The Economics Of Copyright, Restitution And 'Fair Use': Systemic Versus Case-By-Case Responses To Market Failure, Wendy J. Gordon
On The Economics Of Copyright, Restitution And 'Fair Use': Systemic Versus Case-By-Case Responses To Market Failure, Wendy J. Gordon
Faculty Scholarship
The 'public goods' characteristics possess by intangible works of authorship and invention present the basic market failure problem usually relied on to justify intellectual property rights. What is ordinarily less emphasized is that such market failure is no more than half of the prerequisite for an economically desirable copyright or patent system: another requisite condition is that there be less costly market imperfections after intellectual property is instituted than there would have been in the absence of the intellectual property regime. Intellectual property rights are best justified in the presence of "asymmetric market conditions", that is where (1) in the …
Protecting Software And Information On The Internet, Maureen A. O'Rourke
Protecting Software And Information On The Internet, Maureen A. O'Rourke
Faculty Scholarship
Welcome. My name is Ron Cass. I am Dean of the Law School here at Boston University. This is part of an ongoing series of symposia on the Internet and Internet law. The program has been put together by Michael Baram, of our Center for Law and Technology, and Steve Bauer, of the law firm Testa, Hurwitz & Thibeault, which has contributed generously to the series and made it possible to line up a number of speakers. I am going to turn over the program now, but I wanted to take this opportunity to thank both Mr. Baram and Mr. …
Rethinking Remedies At The Intersection Of Intellectual Property And Contract: Toward A Unified Body Of Law, Maureen A. O'Rourke
Rethinking Remedies At The Intersection Of Intellectual Property And Contract: Toward A Unified Body Of Law, Maureen A. O'Rourke
Faculty Scholarship
As society continues to move "on-line"' and technology advances in fields such as biotechnology, a paradigm shift is occurring. Investors are focusing less on asset valuations based on the physical goods owned by a particular firm and more on the value of intangibles-the information and know-how possessed by the firm and embodied in its intellectual property rights. Firms and even entire industries have grown up with the primarily paper assets of patents and copyrights.
Norms Of Communication And Commodification, Wendy J. Gordon
Norms Of Communication And Commodification, Wendy J. Gordon
Faculty Scholarship
Around the laws that regulate information and communication swarm a host of related nonlegal norms: norms of secrecy, confidentiality, and privacy; of anonymity, source-identity, and citation; of quotation, paraphrase, and hyperbole; norms of free copying and norms of obtaining permission; norms of gossip and of blackmail. The articles by Saul Levmore and Richard McAdams provide useful windows on some of the ways these laws and norms interact. The two articles also provide insight into the comparative advantage possessed in some circumstances by law and by nonlegal norms, respectively, when information and communication are at issue. In my brief Comment I …
Assertive Modesty: An Economics Of Intangibles, Wendy J. Gordon
Assertive Modesty: An Economics Of Intangibles, Wendy J. Gordon
Faculty Scholarship
At the center of our Symposium stand two papers: "A Manifesto Concerning the Legal Protection of Computer Programs" (Manifesto) and "Legal Hybrids: Between the Patent and Copyright Paradigms" (Legal Hybrids). Both are stimulating. Both are lengthy. As a result, my primary role is that of a guide: this Comment will summarize the authors' proposals, analyze certain aspects in greater detail, and outline their explicit and implicit methodologies. Part I of the Comment describes the papers' positions and methodologies. Part II highlights some of the papers' many contributions to the literature, and offers some other evaluative observations.
Counter-Manifesto: Student-Edited Reviews And The Intellectual Properties Of Scholarship, Wendy J. Gordon
Counter-Manifesto: Student-Edited Reviews And The Intellectual Properties Of Scholarship, Wendy J. Gordon
Faculty Scholarship
In the great scheme of things, how important are the problems with law reviews? Jim Lindgren's essay is a bit overheated, even for someone enamored f polemic as a literary form. But he does have a point: if law reviews are going to be published, the task should be done better than it is. That does not mean getting rid of student law reviews. Not even for Jim - but it does require patience and further inquiry into the nature of legal scholarship.
Virtual Reality, Appropriation, And Property Rights In Art: A Roundtable Discussion, Wendy J. Gordon
Virtual Reality, Appropriation, And Property Rights In Art: A Roundtable Discussion, Wendy J. Gordon
Faculty Scholarship
Virtual reality is user-interfacing technology that tracks the kinetic movement, changes, and reactions in the body of an operator using devices that provide comprehensive and exclusive sensory excitation (in the sense that perceptual input from outside the system is excluded as much as possible). The technology simultaneously allows information and commands to be input back into the system as effortlessly as possible. Virtual reality can be thought of as total sensory immersion in the input and output of a computer system: everything one sees, feels, and hears comes from the computer, and everything the user does goes back in. It's …
A Property Right In Self-Expression: Equality And Individualism In The Natural Law Of Intellectual Property, Wendy J. Gordon
A Property Right In Self-Expression: Equality And Individualism In The Natural Law Of Intellectual Property, Wendy J. Gordon
Faculty Scholarship
This Article argues that a properly conceived natural-rights theory of intellectual property would provide significant protection for free speech interests. This is more than just an academic exercise. Judges have failed to use the First Amendment to provide extensive protection for free expression in intellectual property cases, in part because they mistakenly find a warrant for strong "authors' rights" in a philosophy of natural law. Natural rights theory, however, is necessarily concerned with the rights of the public as well as with those whose labors create intellectual products. When the limitations in natural law's premises are taken seriously, natural rights …
Reality As Artifact: From Feist To Fair Use, Wendy J. Gordon
Reality As Artifact: From Feist To Fair Use, Wendy J. Gordon
Faculty Scholarship
Lawyers more than most people should be aware that what language calls "facts" are not necessarily equivalent to things that exist in the world. After all, when in ordinary conversation someone says "it's a fact that X happened," the speaker usually means, "I believe the thing I describe has happened in the world." But when a litigator presents something as a "fact," she often means only that a good faith argument can be made on behalf of its existence. Two sets of factfinders can look at the same event and come to diametrically opposed conclusions-each of which is binding, but …
Asymmetric Market Failure And Prisoner's Dilemma In Intellectual Property, Wendy J. Gordon
Asymmetric Market Failure And Prisoner's Dilemma In Intellectual Property, Wendy J. Gordon
Faculty Scholarship
When competitors engage in unrestrained copying of each others' intangible products, the structure can resemble a prisoner's dilemma in which free choice leads to unnecessarily low individual payoffs and low social welfare. There are many ways to avoid these low payoffs, such as contract enforcement, direct regulation of copying behavior through IP, and direct government subsidies. All of these modes alter the payoff pattern away from prisoner's dilemma.
When should lawmakers place copyright law or other IP law among the prime options to consider?
Because copyright, patent, misappropriation and the like all work through private-property markets, one key is to …
On Owning Information: Intellectual Property And The Restitutionary Impulse, Wendy J. Gordon
On Owning Information: Intellectual Property And The Restitutionary Impulse, Wendy J. Gordon
Faculty Scholarship
Every day someone invests time, labor, or money in creating a valuable intangible. Someone collects information, creates an idea, designs a boat hull, writes a book, or comes up with a new way to market a product that someone else developed. Judicial treatment of these and other cognate occurrences has shifted dramatically in recent years.
Of Harms And Benefits: Torts, Restitution, And Intellectual Property, Wendy J. Gordon
Of Harms And Benefits: Torts, Restitution, And Intellectual Property, Wendy J. Gordon
Faculty Scholarship
Copyright and patent take the form of ordinary property. As tangible property has physical edges, intellectual property statutes create boundaries by defining the subject matters within their zone of protection. As real property owners have rights to prevent strangers from entering their land, intellectual property statutes and case law grant owners rights to exclude strangers from using the protected work in specified ways. As tangible property can be bought and sold, bequeathed and inherited, so can copyrights and patents.
Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship, Wendy J. Gordon
Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship, Wendy J. Gordon
Faculty Scholarship
For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from scholarly and case law developments in other areas. There were exceptions, of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zechariah Chafee, Jr. and Judge Learned Hand brought a wealth of learning and broad perspective to copyright. But by and large copyright looked only to itself for guidance.
An Inquiry Into The Merits Of Copyright: The Challenges Of Consistency, Consent And Encouragement Theory, Wendy J. Gordon
An Inquiry Into The Merits Of Copyright: The Challenges Of Consistency, Consent And Encouragement Theory, Wendy J. Gordon
Faculty Scholarship
Hostility to copyright has a long and honorable history. In the nineteenth century, for example, Lord Macaulay argued that while copyright might be necessary to ensure a "supply of good books," the monopoly that it imposed was at best a necessary evil.
"For the sake of the good we must submit to the evil; but the evil ought
not to last a day longer than is necessary for the purpose of securing the good."
A number of studies critical of intellectual property followed in our century. The most well known is probably the economically oriented 1970 study by Stephen Breyer …
An Economic Analysis Of Royalty Terms In Patent Licenses, Michael J. Meurer
An Economic Analysis Of Royalty Terms In Patent Licenses, Michael J. Meurer
Faculty Scholarship
Efficient exploitation of a patent often requires patentees to license users of their inventions. The courts, on the other hand, have proscribed many forms of license agreements and discouraged patent licensing in general, thereby diminishing the efficacy of the patent system as a stimulus to R & D. This negative attitude is attributable to fears that licensing will be used to protect invalid patents and secure illegitimate extensions of monopoly power. Part I of this Note reviews judicial treatment of certain royalty terms in patent licenses, describing the restraints the courts have imposed on the freedom of patentees to license …
Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors, Wendy J. Gordon
Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors, Wendy J. Gordon
Faculty Scholarship
In the recent and much publicized Universal City Studios, Inc. v. Sony Corp. of America (Betamax) case, the Court of Appeals for the Ninth Circuit held that persons who make videotapes of copyrighted television programs in the privacy of their homes should be considered to be copyright infringers. Basic to the court's reasoning was a misunderstanding of the "fair use" doctrine. Called "the most troublesome [doctrine] in the whole law of copyright," "fair use" renders noninfringing certain uses of copyrighted material that might technically violate the statute, but which do not violate the statute's basic purposes.