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The Study Of Intellectual Property At The William S. Boyd School Of Law, Mary Lafrance

Scholarly Works

This article discusses the intellectual property program at William S. Boyd School of Law.

One For All: The Problem Of Uniformity Cost In Intellectual Property Law, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms.

This Article argues that reducing uniformity cost is the central problem for intellectual …

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 …

Law As Design: Objects, Concepts, And Digital Things, Michael J. Madison

Articles

This Article initiates an account of things in the law, including both conceptual things and material things. Human relationships matter to the design of law. Yet things matter too. To an increasing extent, and particularly via the advent of digital technology, those relationships are not only considered ex post by the law but are designed into things, ex ante, by their producers. This development has a number of important dimensions. Some are familiar, such as the reification of conceptual things as material things, so that computer software is treated as a good. Others are new, such as the characterization of …

Communicating Entitlements: Property And The Internet, William Hubbard

All Faculty Scholarship

No abstract provided.

Whose Music Is It Anyway? How We Came To View Musical Expression As A Form Of Property, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

Many participants in the music industry consider unauthorized transmissions of music files over the Internet to be theft of their property. Many Internet users who exchange music files reject this characterization. Prompted by the dispute over unauthorized music distribution, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing music making in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some …

Commentary On Economic And Ethical Reasons For Protecting Data, Wendy J. Gordon

Faculty Scholarship

Like Jane Ginsburg, I would like to drop back a bit, to talk about more general principles. Essentially, both of our primary speakers focused on a distinction between property and non-property modes of protecting data. I would like to highlight the economic and ethical reasons for maintaining that distinction.

The Dynamic Analytics Of Property Law, Michael A. Heller

Faculty Scholarship

The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership. This essay suggests two approaches – creating new ideal types and synthesizing existing ones – that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.

Simultaneous Copyright And Trade Secret Claims: Can The Copyright Misuse Defense Prevent Constitutional Doublethink?, Ralph D. Clifford

Faculty Publications

As the Constitution authorizes Congress to grant copyrights, it subjects the power to a public purpose requirement. Any monopoly Congress grants must be for the purpose of “promot[ing] the progress of science and useful arts.” But one result of Congress enacting the 1976 Act is a potential conflict between the Act and this public purpose requirement. An owner of intellectual property may believe that both copyright law – which mandates disclosure – and trade secret law – which mandates secrecy – can be used simultaneously. To believe that disclosure and secrecy can coexist is doublethink as both cannot be true. …

New Thoughts And Excerpt From On Commodifying Intangibles - 1999, Wendy J. Gordon

Scholarship Chronologically

Here is a ten-page excerpt from! a published piece, followed by some more recent and more random thoughts. Community is not civility. That is, I imagine my ideal community as one where people aren't always sweet to each other; I imagine a community where truth is more important than hurt feelings, and fun is more important than money. I imagine a community of individualists: raucous, iconoclastic. Steve Shiffrin's ROMANCE OF THE FIRST AMENDMENT and Ed Baker's work seems to have the kind of community in mind that I am interested in.

Notes On Trademark Monopolies, Wendy J. Gordon, Glynn S. Lunney Jr.

Scholarship Chronologically

Since 1742, when Lord Hardwicke seemingly equated trademark protection with monopoly in one of the first trademark cases, until the mid- 1950s, concerns that trademarks represented a form of illegitimate monopoly effectively constrained the growth of trademark protection. In the twentieth century, Edward Chamberlain became the leading proponent of the trademark as monopoly view with the publication of his work, The Theory of Monopolistic Competition, in 1933. In his work, Chamberlain argued that a trademark enabled its owner to differentiate her products and then to exclude others from using the differentiating feature. By doing so, trademark protection can effectively …

Upstream Patents = Downstream Bottlenecks, Rebecca S. Eisenberg, Michael A. Heller

Articles

Thirty years ago in Science, Garrett Hardin introduced the metaphor "tragedy of the commons" to help explain overpopulation, air pollution, and species extinction. People often overuse resources they own in common because they have no incentive to conserve. Today, Hardin's metaphor is central to debates in economics, law, and science and powerful justification for privatizing commons property. While the metaphor highlights the cost of overuse when governments allow too many people to use a scarce resource, it misses the possibility of underuse when governments give too many people rights to exclude others. Privatization can solve one tragedy, but cause another.

Fair Use In American And Continental Laws, Omar M.A. Obeidat

LLM Theses and Essays

Intellectual property, unlike tangible property, does not exclusively occupy one place at a designated time. Instead, intellectual property is composed of information which can be reproduced or used in multiple places at any given time. This fundamental difference between intellectual and tangible property is reflected in the legal provisions that regulate these types of property. There are two dominant theories that justify the legal protection of intellectual property: the individualistic European approach, and the commercial Anglo-American approach. Under the European approach, the protection of the creation is a natural right guaranteed to the author. In other words, natural law guarantees …

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

Faculty Publications

No abstract provided.

Conference On The 1992 Cable Tv Act - 1994, Wendy J. Gordon

Scholarship Chronologically

The CITI conference organizers have asked me to address the constitutionality of sections 12 and 19 of the new Cable Television Act. Speaking quite generally, these provisions purport to promote competition in the distribution of programming by prohibiting certain exclusive licenses and by prohibiting certain behaviors that could lead to exclusive licenses.

Blackmail: Deontology - 1993, Wendy J. Gordon

Scholarship Chronologically

The basic logic of my deontologic approach is this.

Draft Of A Labor Theory Of Property - 1990, Wendy J. Gordon

Scholarship Chronologically

The Supreme Court in several recent cases has flirted with the notion that labor gives one an entitlement to ownership: a legal right to bar others from the fruits of that labor or to extract payment from them if they use the fruits without permission. Sometimes articulated in terms of "natural rights," and sometimes in terms of "fairness," this notion is at apparent odds with contract law's insistence that the only "fruits of labor" one is obligated to pay for are those one has agreed in advance to buy.

Notes On Conceptions Of Property: Scientific And Ordinary - 1989, Wendy J. Gordon

Scholarship Chronologically

There's a lot that won't neatly fit in my LocKe article that needs to be said. The following, re ordinary and scientific theories of property, go in the Conception of Prop Article, for which there still seems a need.

Note On General Conclusion - 1986, Wendy J. Gordon

Scholarship Chronologically

The burden of the first part of this paper has been to suggest that tort law provides us no self-justifying notion of "wrongs" by which we can allocate rights and duties. The burden of the second part of this paper has been to suggest that contract law's notion of "consent" is similarly unable to provide justification for any particular system of rights. How would one go about constructing a theory by which to evaluate whether a given property system could be justified? A full answer to that question is surely outside the scope of this paper, but some basic points …

Note On Re Article On Definition Of Tort/Property - 1986, Wendy J. Gordon

Scholarship Chronologically

Some distinctions in the law are fairly clear. For example, we seem to think that bad actions deserve to be punished, actions which are not personally blameworthy should not be punished, and that injuries to innocent persons should be compensated. But there are many instances in which these two goals cannot be simultaneously served. There we partially separate them, placing each in its own primary area of law. For those instances in which a bad action occurs and no one is injured, the criminal law has a remedy (the law of attempts). For those instances in which an innocent party …

Outline Of Green Bound - 1985, Wendy J. Gordon

Scholarship Chronologically

No abstract provided.

Notes On Conversations With Jim White - 1985, Wendy J. Gordon

Scholarship Chronologically

Jim White suggested looking at the institutional issues separately from the issue of ideal outcomes.

Notes On Restitution - 1985, Wendy J. Gordon

Scholarship Chronologically

The principle which allows payment for nondamaging uses of property is, I submit, this one: protecting the system of property from eroding. Looking at the leading case in the area, we see precisely that: the user of the property is required to pay for his use, lest he be placed in a better position than a non-trespasser. Any other rule might encourage erosion of property systems.

Notes On New Organization - 1985, Wendy J. Gordon

Scholarship Chronologically

No abstract provided.

Notes On Value - 1985, Wendy J. Gordon

Scholarship Chronologically

The relation between value and property is very much at the core of this paper. First, as a theoretical matter (Holmes; the Ordinary Observer; custom and interactive pattern.) Second, intellectual products have increased greatly in value, shown both by statistics [3] and also by that unfortunate but fairly reliable secondary indicator of a phenomenon’s social importance: the volume of litigation concerning it.

Note On Individualized V Particularized Entitlement Inquiries - 1984, Wendy J. Gordon

Scholarship Chronologically

My analysis now looks something like this: Some entitlements should be "prima facie" protectible from invasion. That means that there are some entitlements which the owner should be able to protect even if he or she is unable to prove (a) that protection is in the net social interest or (b) that the invader's action is deserving of punishment. I would call these entitlements "property".

Limitations Upon The Use, After Sale, Of Patented Articles, John B. Waite

Articles

In the case of Motion Picture Patents Co. v. Universal Film Co., 37 Sup. Ct. 416, the Supreme Court has just rendered a decision which reverses the much discussed case of Henry v. Dick Co., 224 U. S. 1. The opinion was by a divided court, however, as three of the justices dissented, and Justice McREYNOLDS "concurred in the result" only. It can, therefore, hardly be said to settle the ultimate rule as in contradiction to that followed in Henry v. Dick Co., and discussion of the case is of something more than mere academic value. The facts were that …

The Patentability Of A Principle Of Nature, John B. Waite

Articles

The extent to which courts will go in conceding patentability to a natural law, or principle of nature, is evidenced in the case of Minerals Separation Co. v. Hyde, 37 Sup. Ct. -, decided by the Supreme Court, December 11, 1916. It has always been more or less an axiom of patent law that the discovery of a principle of nature does not entitle the discoverer to a patent for it. The case usually thought of first as authority therefor, is that of Morton v. New York Eye Infirmary, 5 Blatch. 116, 2 Fisher 320. The patentees in that case …

The Patentability Of A Mental Process, John B. Waite

Articles

The fact of possession has been so correlated with the theory of property that it is difficult to dissociate ownership from the possibility of physical possession. One finds that the average lawyer, even though he may defind a right in rem as a right enforcible against any person, is extremely apt, unless after especial thought, to explain that it is enforcible against anyone because it pertains to a thing capable of physical possession and control, a thing that could be actually sequestered, from all other persons. Not at all infrequently the term property has been judicially stripped even of its …