Law Commons^™

Second Tier Patent Protection, Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

Who’S Afraid Of Functional Claims? Reforming The Patent Law’S §112, ¶ 6 Jurisprudence, Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

In Vento Scribere: The Intersection Of Cyberspace And Patent Law, Max Oppenheimer

All Faculty Scholarship

No abstract provided.

When Is Property Intellectual: The Leveraging Problem Essays, Mark R. Patterson

Faculty Scholarship

Patents and copyrights protect inventions and expression; they do not protect products. This distinction, I argue in this essay, is a key to the antitrust problem of the "leveraging" of intellectual property. In a typical leveraging case, the manufacturer of a durable good, like a copier or computer, refuses to sell replacement parts for its equipment unless the purchaser also hires the manufacturer to service the equipment. Such a practice can be illegal under antitrust law, but when the leveraging products-in this example, replacement parts-are protected by patent or copyright, the manufacturer will often claim that the leveraging is a …

Copyright And The Ends Of Ownership: The Case For A Public-Domain Ulysses In America, Robert Spoo

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

A Tale Of The Apocryphal Axe: Repair, Reconstruction, And The Implied License In Intellectual Property Law, Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

The Myth Of Private Ordering: Rediscovering Legal Realism In Cyberspace, Margaret Jane Radin, R. Polk Wagner

All Faculty Scholarship

While Cyberspace is, by now, well-recognized as a social and commercial environment of great promise, there is considerable debate about the form of governance that will best meet the needs of this new medium. Much of the present discussion casts this debate in stark terms?"top-down" hierarchical rules versus spontaneous "bottom-up" coordination?with self-ordering based on contracts and private agreements rather than public laws appearing both preferable and more likely to evolve. Following up on arguments presented by Professors Fisher and Elkin-Koren in this symposium, Radin and Wagner point out that the dichotomy between top-down and bottom-up obscures that a self-ordering regime …

Copyright Legislation For The "Digital Millennium", Jane C. Ginsburg

Faculty Scholarship

In October 1998, Congress passed two major copyright bills, the "Digital Millennium Copyright Act" [DMCA], and the "Sonny Bono Copyright Term Extension Act." Moreover, the Senate ratified U.S. accession to the WIPO Copyright and Performances and Phonograms Treaties. The DMCA implements the obligations set forth in articles 11 and 12 of the WIPO Copyright Treaty [WCT] (and articles 18 and 19 of the WIPO Performances and Phonograms Treaty [WPPTI) to protect technological measures against circumvention, and to protect "copyright management information" against removal or alteration that facilitates infringement. The DMCA also includes a chapter on the liability of online service …

Copyright And Intermediate Users' Rights, Jane C. Ginsburg

Faculty Scholarship

The impending "Digital Millennium" has amplified the assertion of users' rights in U.S. copyright law. Copyright has been reimagined as a "law of users' rights" whose acolytes caution copyright owners not to stand as piggish impediments to the progress of learning and culture in the Digital Age. Proponents advance a variety of arguments in support of a user rights construct of copyright law, from the historical to the philosophical to the pragmatic. I propose to address some of these. But first it is important to specify what I mean by "users' rights" in U.S. copyright law today.

User rights in …

The Cyberian Captivity Of Copyright: Territoriality And Authors' Rights In A Networked World, Jane C. Ginsburg

Faculty Scholarship

Let me start with two items of received wisdom: 1) Copyright is territorially-based; 2) Cyberspace is not. But copyrighted works circulate in cyberspace. What does that mean for their protection? I have not labeled this essay "The Cyberian Captivity of Copyright," just because the title is alliterative and fittingly portentious for an inaugural lecture. Rather, like the "Babylonian Captivity" of the papacy in Avignon that the title recalls, it suggests a displacement of an international institution. This need not mean, however, that the displacement is a Bad Thing - after all, the French probably have a more favorable view of …

Secured Credit And Software Financing, Ronald J. Mann

Faculty Scholarship

Software is a relatively new type of business asset, but already has taken on a central role in all sectors of the economy; when any asset brings such a crucial value to businesses, the desire for lending based on that asset cannot be far behind. Unfortunately, the existing academic literature contains no sustained examination of software-related lending.

Because the software industry is in its infancy, the existing empirical evidence is inadequate to support any understanding of it. Accordingly, I undertook a series of twenty-nine informal interviews with industry participants, including lenders in both the Massachusetts Route 128 corridor and Silicon …

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Faculty Scholarship

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …

The Legal Infrastructure Of High Technology Industrial Districts: Silicon Valley, Route 128, And Covenants Not To Compete, Ronald J. Gilson

Faculty Scholarship

In recent years, scholars and policymakers have rediscovered the concept of industrial districts – spatial concentrations of firms in the same industry or related industries. In this Article, Professor Gilson examines te relationship between high-technology industrial districts and legal infrastructure by comparing the legal regimes of California's Silicon Valley and Massachusetts's Route 128. He contends that legal rides governing employee mobility influence the dynamics of high technology industrial districts by either encouraging rapid employee movement between employers and to startups, as in Silicon Valley, or discouraging such movement, as in Route 128. Because California does not enforce post-employment covenants not …