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Full-Text Articles in Law
Software's Copyright Anticommons, Clark D. Asay
Software's Copyright Anticommons, Clark D. Asay
Faculty Scholarship
Scholars have long assessed “anticommons” problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.
In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has …
Intellectual Property Law Hybridization, Clark D. Asay
Intellectual Property Law Hybridization, Clark D. Asay
Faculty Scholarship
Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. The conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between patent and copyright laws finds some support in the Constitution’s Intellectual Property Clause, and Congress, courts, and scholars have largely perpetuated it in enacting, interpreting, and analyzing copyright and patent laws over time.
In this Article, I argue that it is time to partially breach this traditional divide. …
Copyright's Technological Interdependencies, Clark D. Asay
Copyright's Technological Interdependencies, Clark D. Asay
Faculty Scholarship
Copyright was initially conceptualized as a means to free creative parties from dependency on public and private patrons such as monarchs, churches, and well-to-do private citizens. By achieving independence for creative parties, the theory ran, copyright led to greater production of a more diverse set of creative works.
But this lingering conception of copyright is both inaccurate and harmful. It is inaccurate because, in today’s world, creative parties are increasingly dependent upon “Technological Patronage” from the likes of Google, Amazon, Apple, and others. Thus, rather than being alternatives or adversaries, copyright and Technological Patronage are increasingly interdependent in facilitating both …