Law Commons^™

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Faculty Publications

The concept of rivalry is central to modern accounts of property. When one person’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all.

This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that framework, it argues that rivalry should …

Reforming The Visual Artists Rights Act To Protect #Streetart In The Digital Age, Ellen Matthews

William & Mary Law Review

Consider the following: Building Owner commissions Artist to paint a mural on the wall of his building. A decade later, Business buys that building from Building Owner and, unaware of details relative to Artist’s wall mural, develops plans to renovate the building for a new use. Upon hearing of Business’s attempt to alter its newly acquired property, Artist seeks an injunction to prevent Business from restoring its building in a way that would change or destroy her mural. Would a court prevent Business from altering its building due to Artist’s moral rights to her work? If the court follows the …

Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern

Faculty Publications

A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could …

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …

Patent Prior Art And Possession, Timothy R. Holbrook

William & Mary Law Review

Prior art in patent law defines the set of materials that the United States Patent and Trademark Office (USPTO) and courts use to determine whether the invention claimed in a patent is new and nonobvious. One would think that, as a central, crucial component of patent law, prior art would be thoroughly theorized and doctrinally coherent. Nothing could be further from the truth. The prior art provisions represent an ad hoc codification of various policies and doctrines that arose in the courts.

This Article provides coherency to this morass. It posits a prior art system that draws upon property law’s …

The Ancient Doctrine Of Trespass To Web Sites, I. Trotter Hardy

Faculty Publications

No abstract provided.