Law Commons^™

Color Of Creatorship - Author's Response, Anjali Vats

Articles

This essay is the author's response to three reviews of The Color of Creatorship written by notable intellectual property scholars and published in the IP Law Book Review.

The Racial Politics Of Fair Use Fetishism, Anjali Vats

Articles

This short essay argues that the sometimes fetishistic desire on the part of progressive intellectual property scholars to defend fair use is at odds with racial justice. Through a rereading of landmark fair use cases using tools drawing from Critical Race Intellectual Property (“CRTIP”), it contends that scholars, lawyers, judges, practitioners, and activists would be well served by focusing on how fair use remains grounded in whiteness as (intellectual) property. It argues for doing so by rethinking the purpose of the Copyright Act of 1976 to be inclusive of Black, Brown, and Indigenous authors.

Critical Race Theory As Intellectual Property Methodology, Anjali Vats, Deidre A. Keller

Book Chapters

This chapter traces the emergence of Critical Race Intellectual Property (CRTIP) as a distinct area of study and activism that builds on the work of Critical Legal Studies and Critical Intellectual Property scholars. Invested in the workings of power - but with particular intersectional attentiveness to race - Critical Intellectual Property works to imagine new, often more socially just, forms of knowledge produce. In this brief chapter, we lay out the origins of Critical Race Theory (CRT) and its central methods, articulate a vision of CRT, and contemplate how CRT's interdisciplinary and transnational methods might apply to intellectual property. In …

Temporality In A Time Of Tam, Or Towards A Racial Chronopolitics Of Intellectual Property Law, Anjali Vats

Articles

This Article examines the intersections of race, intellectual property, and temporality from the vantage point of Critical Race Intellectual Property ("CRTIP"). More specifically, it offers one example of how trademark law operates to normalize white supremacy by and through judicial frameworks that default to Euro-American understandings of time. I advance its central argument-that achieving racial justice in the context of intellectual property law requires decolonizing Euro-American conceptions of time by considering how the equitable defense of laches and the judicial power to raise issues sua sponte operate in trademark law. I make this argument through a close reading of the …

Data Governance And The Emerging University, Michael J. Madison

Book Chapters

Knowledge and information governance questions are tractable primarily in institutional terms, rather than in terms of abstractions such as knowledge itself or individual or social interests. This chapter offers the modern research university as an example. Practices of data-intensive research by university-based researchers, sometimes reduced to the popular phrase “Big Data,” pose governance challenges for the university. The chapter situates those challenges in the traditional understanding of the university as an institution for understanding forms and flows of knowledge. At a broad level, the chapter argues that the new salience of data exposes emerging shifts in the social, cultural, and …

The Color Of Creatorship: Intellectual Property, Race, And The Making Of Americans (Introduction), Anjali Vats

Book Chapters

INTELLECTUAL PROPERTY LAW, the body of legal doctrine and practice that governs the ownership of information, is animated by a dichotomy of creatorship and infringement. In the most often repeated narratives of creatorship/infringement in the United States, the former produces a social and economic good while the latter works against the production of that social and economic good. Creators, those individuals whose work is deemed protectable under copyright, patent, trademark, trade secret, and unfair competition law, create valuable products that contribute to economic growth and public knowledge. Infringers, those individuals who use the work of creators without their permission, steal …

Knowledge Commons (2019), Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Book Chapters

This chapter provides an introduction to and overview of the knowledge commons research framework. Knowledge commons refers to an institutional approach (commons) to governing the production, use, management, and/or preservation of a particular type of resource (knowledge). The research framework supplies a template for interrogating the details of knowledge commons institutions on a case study basis, generating qualitative data that may be used to support comparative analysis.

The Football As Intellectual Property Object, Michael J. Madison

Book Chapters

The histories of technology and culture are filled with innovations that emerged and took root by being shared widely, only to be succeeded by eras of growth framed by intellectual property. The Internet is a modern example. The football, also known as the pelota, ballon, bola, balón, and soccer ball, is another, older, and broader one. The football lies at the core of football. Intersections between the football and intellectual property law are relatively few in number, but the football supplies a focal object through which the great themes of intellectual property have shaped the game: origins; innovation and …

Biobanks As Knowledge Institutions, Michael J. Madison

Book Chapters

This chapter describes biobanks as institutions for collection, preservation, curation, and production of knowledge and information, in both material and immaterial forms. That characterization calls for research and comparative analysis of the broad diversity of specific biobanks, using a standardized research framework. Such a framework is identified and described here, as the knowledge commons framework. The chapter describes applications of the framework to biobanks to date and suggests directions for future research.

Using Ai To Analyze Patent Claim Indefiniteness, Dean Alderucci, Kevin D. Ashley

Articles

In this Article, we describe how to use artificial intelligence (AI) techniques to partially automate a type of legal analysis, determining whether a patent claim satisfies the definiteness requirement. Although fully automating such a high-level cognitive task is well beyond state-of-the-art AI, we show that AI can nevertheless assist the decision maker in making this determination. Specifically, the use of custom AI technology can aid the decision maker by (1) mining patent text to rapidly bring relevant information to the decision maker attention, and (2) suggesting simple inferences that can be drawn from that information.

We begin by summarizing the …

Everything Old Is New Again: Does The '.Sucks' Gtld Change The Regulatory Paradigm In North America?, Jacqueline D. Lipton

Articles

In 2012, the Internet Corporation for Assigned Names and Numbers (“ICANN”) took the unprecedented step of opening up the generic Top Level Domain (“gTLD”) space for entities who wanted to run registries for any new alphanumeric string “to the right of the dot” in a domain name. After a number of years of vetting applications, the first round of new gTLDs was released in 2013, and those gTLDs began to come online shortly thereafter. One of the more contentious of these gTLDs was “.sucks” which came online in 2015. The original application for the “.sucks” registry was somewhat contentious with …

Critical Race Ip, Anjali Vats, Deidre A. Keller

Articles

In this Article, written on the heels of Race IP 2017, a conference we co-organized with Amit Basole and Jessica Silbey, we propose and articulate a theoretical framework for an interdisciplinary movement that we call Critical Race Intellectual Property (Critical Race IP). Specifically, we argue that given trends toward maximalist intellectual property policy, it is now more important than ever to study the racial investments and implications of the laws of copyright, trademark, patent, right of publicity, trade secret, and unfair competition in a manner that draws upon Critical Race Theory (CRT). Situating our argument in a historical context, we …

Governing Medical Knowledge Commons - Introduction And Chapter 1, Katherine J. Strandburg, Brett M. Frischmann, Michael J. Madison

Book Chapters

Governing Medical Knowledge Commons makes three claims: first, evidence matters to innovation policymaking; second, evidence shows that self-governing knowledge commons support effective innovation without prioritizing traditional intellectual property rights; and third, knowledge commons can succeed in the critical fields of medicine and health. The editors' knowledge commons framework adapts Elinor Ostrom's groundbreaking research on natural resource commons to the distinctive attributes of knowledge and information, providing a systematic means for accumulating evidence about how knowledge commons succeed. The editors' previous volume, Governing Knowledge Commons, demonstrated the framework's power through case studies in a diverse range of areas. Governing Medical Knowledge …

Knowledge Commons (2016), Michael J. Madison, Katherine J. Strandburg, Brett M. Frischmann

Book Chapters

This chapter describes methods for systematically studying knowledge commons as an institutional mode of governance of knowledge and information resources, including references to adjacent but distinct approaches to research that looks primarily to the role(s) of intellectual property systems in institutional contexts concerning innovation and creativity.

Knowledge commons refers to an institutional approach (commons) to governing the production, use, management, and/or preservation of a particular type of resource (knowledge or information, including resources linked to innovative and creative practice). Commons refers to a form of community management or governance. It applies to a resource, and it involves a group or …

Information Abundance And Knowledge Commons, Michael J. Madison

Book Chapters

Standard accounts of IP law describe systems of legal exclusion intended to prompt the production and distribution of intellectual resources, or information and knowledge, by making those things artificially scarce. The argument presented here frames IP law instead as one of several possible institutional responses to the need to coordinate the use of intellectual resources given their natural abundance, and not necessarily useful or effective responses at that. The chapter aims to shift analytic and empirical frameworks from those grounded in law to those grounded in governance, and from IP law in isolation to IP law as part of resource …

Understanding Access To Things: A Knowledge Commons Perspective, Michael J. Madison

Book Chapters

This chapter explores the related ideas of access to knowledge resources and shared governance of those resources, often known as commons. Knowledge resources consist of many types and forms. Some are tangible, and some are intangible. Some are singular; some are reproduced in copies. Some are singular or unique; some are collected or pooled. Some are viewed, used, or consumed only by a single person; for some resources, collective or social consumption is the norm. Any given resource often has multiple attributes along these dimensions, depending on whether one examines the resource’s physical properties, its creative or inventive properties, or …

Commons At The Intersection Of Peer Production, Citizen Science, And Big Data: Galaxy Zoo, Michael J. Madison

Book Chapters

The knowledge commons research framework is applied to a case of commons governance grounded in research in modern astronomy. The case, Galaxy Zoo, is a leading example of at least three different contemporary phenomena. In the first place Galaxy Zoo is a global citizen science project, in which volunteer non-scientists have been recruited to participate in large-scale data analysis via the Internet. In the second place Galaxy Zoo is a highly successful example of peer production, sometimes known colloquially as crowdsourcing, by which data are gathered, supplied, and/or analyzed by very large numbers of anonymous and pseudonymous contributors to an …

Lost Classics Of Intellectual Property Law, Michael J. Madison

Articles

Santayana wrote, “Those who cannot remember the past are condemned to repeat it.” American legal scholarship often suffers from a related sin of omission: failing to acknowledge its intellectual debts. This short piece attempts to cure one possible source of the problem, in one discipline: inadequate information about what’s worth reading among older writing. I list “lost classics” of American scholarship in intellectual property law. These are not truly “lost,” and what counts as “classic” is often in the eye of the beholder (or reader). But these works may usefully be found again, and intellectual property law scholarship would be …

Madisonian Fair Use, Michael J. Madison

Articles

This short essay reflects on developments in the law, scholarship, and practice of fair use since the publication in 2004 of an earlier article on patterns in fair use practice and adjudication. It synthesizes many of those developments in the idea of “Madisonian” fair use, borrowing the separation of powers metaphor from James Madison’s work on the US Constitution and applying it, lightly and in a preliminary way, to copyright.

Open Secrets, Michael J. Madison

Book Chapters

The law of trade secrets is often conceptualized in bilateral terms, as creating and enforcing rights between trade secret owners, on the one hand, and misappropriators on the other hand. This paper, a chapter in a forthcoming collection on the law of trade secrets, argues that trade secrets and the law that guards them can serve structural and institutional roles as well. Somewhat surprisingly, given the law’s focus on secrecy, among the institutional products of trade secrets law are commons, or managed openness: environments designed to facilitate the structured sharing of information. The paper illustrates with examples drawn from existing …

Creativity And Craft, Michael J. Madison

Book Chapters

I revisit the distinction between intangible works of authorship and tangible objects, which is a fundamental proposition of modern copyright law. I suggest that reconsidering that distinction, at least in part, may expand the range of possibilities for aligning modern copyright as an economic construct with the historical roots of copyright and with ethical claims about authorial expression. Revisiting that distinction also may provide contemporary lawyers and policymakers with a much-needed tool for managing challenges posed by digital technology.

Reply: The Complexity Of Commons, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Articles

Constructing Commons in the Cultural Environment, and responses to that article by Professors Thráinn Eggertsson, Wendy Gordon, Gregg Macey, Robert Merges, Elinor Ostrom, and Lawrence Solum. This short Reply comments briefly on each of those responses.

Some Optimism About Fair Use And Copyright Law, Michael J. Madison

Articles

This short paper reflects on the emergence of codes of best practices in fair use, highlighting both the relationship between the best practices approach and an institutional perspective on copyright and the relationship between the best practices approach and social processes of innovation and creativity.

Constructing Commons In The Cultural Environment, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Articles

This Essay considers the problem of understanding intellectual sharing/pooling arrangements and the construction of cultural commons arrangements. We argue that an adaptation of the approach pioneered by Elinor Ostrom and collaborators to commons arrangements in the natural environment may provide a template for the examination of constructed commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environment(s) within which they are embedded and with which they share interdependent relationships. Such an improved understanding is critical for obtaining a more complete …

The University As Constructed Cultural Commons, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

Articles

This paper examines commons as socially constructed environments built via and alongside intellectual property rights systems. We sketch a theoretical framework for examining cultural commons across a broad variety of institutional and disciplinary contexts, and we apply that framework to the university and associated practices and institutions.

Of Coase And Comics, Or, The Comedy Of Copyright, Michael J. Madison

Articles

This Essay responds to There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, by Dotan Oliar and Christopher Sprigman. It argues that case studies of disciplines and domains that may be governed by intellectual property regimes are invaluable tools for comparative analysis of the respective roles of law and other forms of social order. The Essay examines the case of stand-up comedy under a lens that is somewhat broader than the one used by the authors of the original study, one that takes into account not only the social norms of individual …

To (C) Or Not To (C)? Copyright And Innovation In The Digital Typeface Industry, Jacqueline D. Lipton

Articles

Intellectual property rights are often justified by utilitarian theory. However, recent scholarship suggests that creativity thrives in some industries in the absence of intellectual property protection. These industries might be called IP's negative spaces. One such industry that has received little scholarly attention is the typeface industry. This industry has recently digitized. Its adoption of digital processes has altered its market structure in ways that necessitate reconsideration of its IP negative status, with particular emphasis on copyright. This article considers the historical denial of copyright protection for typefaces in the United States, and examines arguments both for and against extending …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline D. Lipton

Articles

When the Oscar-winning actress, Julia Roberts, fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual's persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

Intellectual Property, Electronic Commerce And The Preliminary Draft Hague Jurisdiction And Judgments Convention, Ronald A. Brand

Articles

On October 30, 1999, a Special Commission of the Hague Conference on Private International Law adopted a Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters ("Preliminary Draft Convention," or "PDC") which was further developed in June of 2001.Originally scheduled for a final diplomatic conference in the fall of 2000, the negotiating process was delayed as a result of serious questions raised about the draft language.

After a discussion of the history of the convention, this paper presents a review of the Preliminary Draft Convention text, describing its structure and scope. It then provides a focus …