Law Commons^™

The Past And Future Of Copyright Politics, Jessica Silbey

Faculty Scholarship

No abstract provided.

Promoting Progress: A Qualitative Analysis Of Creative And Innovative Production, Jessica Silbey

Faculty Scholarship

This chapter is based on data collected as part of a larger qualitative empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents and business partners. Broadly, the project involves the collecting and analysis of these interviews to understand how and why the interviewees create and innovate and to make sense of the intersection between intellectual property law and creative and innovative activity from the ground up. This chapter specifically investigates the concept of “progress” as discussed in the interviews. “Promoting progress” is the ostensible goal of the intellectual property protection in the United States, but what …

Principled Standards Vs. Boundless Discretion: A Tale Of Two Approaches To Intermediary Trademark Liability Online, Stacey Dogan

Faculty Scholarship

Over the past decade, courts have developed two distinct approaches in evaluating trademark claims against online intermediaries. In one – contributory infringement – courts struggle with the tension between preserving legitimate, non-infringing uses of technologies, on the one hand, and minimizing infringement, on the other. In the other – direct infringement – liability turns on perceived wrongdoing by intermediaries whose own behavior increases the risk of consumer confusion. This second type of liability boasts neither a clear doctrinal framework nor a coherent normative vision. Most troublingly, the scant case law has paid little attention to issues at the core of …

Which Patent Systems Are Better For Inventors?, James Bessen, Grid Thoma

Faculty Scholarship

International comparisons of patent systems are essential to harmonization treaties and to analyze economic growth. Yet these comparisons often rely on little but conventional wisdom. This paper develops an empirical method to compare the economic strength and quality of patent systems by using renewal analysis of matched patents in different countries (same patent family). Comparing patents on the same inventions filed at the EPO for Germany and in the US, we find that the German patents generate substantially greater market power than their US equivalents, especially for small inventors. Also, the average US patent has relatively lower economic value (“quality”).

Brief Of Amici Curiae Law, Business, And Economics Scholars In Alice Corp. V. Cls Bank, No. 13-298, Jason Schultz, Brian Love, James Bessen, Michael J. Meurer

Faculty Scholarship

The Federal Circuit’s expansion of patentable subject matter in the 1990s led to a threefold increase in software patents, many of which contain abstract ideas merely tethered to a general-purpose computer. There is little evidence, however, to suggest this expansion has produced an increase in software innovation. The software industry was highly innovative in the decade immediately prior to this expansion, when the viability of software patentability was unclear and software patents were few. When surveyed, most software developers oppose software patenting, and, in practice, software innovators tend to rely on other tools to capture market share such as first-mover …

The Semiotics Of Film In Us Supreme Court Cases, Jessica Silbey, Meghan Hayes Slack

Faculty Scholarship

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations …

The Core Of Copyright: Authors, Not Publishers, Wendy J. Gordon

Faculty Scholarship

Copyright largely consists of alienable rights and correlative duties — rights of exclusion given to individuals, and correlative duties not-to-copy imposed on the public. This Article argues that such right/duty pairs arise out of authorial creation. A focus on creation is not very popular at the moment; a growing number of commentators take the position that copyright is “about” making publishing and other dissemination industries more efficient and stronger. The Article encourages the legal community instead to return to the focus that the Supreme Court articulated in Feist Publications, namely, that copyright must serve creative authorship rather than noncreative labor. …

Saving The Federal Circuit, Paul Gugliuzza

Faculty Scholarship

In a recent, attention-grabbing speech, the Chief Judge of the Seventh Circuit, Diane Wood, argued that Congress should abolish the Federal Circuit’s exclusive jurisdiction over patent cases. Exclusive jurisdiction, she said, provides too much legal uniformity, which harms the patent system. In this response to Judge Wood’s thoughtful speech, I seek to highlight two important premises underlying her argument, neither of which is indisputably true.

The first premise is that the Federal Circuit actually provides legal uniformity. Judge Wood suggests that, due to the Federal Circuit’s exclusive jurisdiction, patent doctrine is insufficiently “percolated,” meaning that it lacks mechanisms through which …

Afterword: Conferring About The Conference, Jessica Silbey, Aaron Perzanowski, Marketa Trimble

Faculty Scholarship

We heard at the conference five rich papers, all addressing in one way or another the conference's theme: "ReCalibrating Copyright: Continuity, Contemporary Culture, and Change." Professor Craig Joyce, in his capacity as conference convener, asked us as Fellows, at the end of the day of presentations and discussions, how we thought the Presenters' papers spoke to each other and to the conference's focus.

Patents At Issue: The Data Behind The Patent Troll Debate, Jonathan H. Ashtor, Michael J. Mazzeo, Samantha Zyontz

Faculty Scholarship

The debate over "patent trolls"' is raging at full tilt and its fury is stoked by fundamental questions about patent assertion. Both sides are struggling to understand which patent assertion practices are consistent with the purpose of patent rights and which are abusive and result in net social costs. This Article addresses patent assertion concretely through empirical analysis of actual infringement awards. In particular, this Article studies all awards granted for findings of patent infringement in U.S. district courts between 1995 and 2011, and, with targeted analyses, focuses on cases involving patent assertion entities ("PAEs"). This Article specifically investigates certain …

Useful Articles In Copyright: Proposed Amendments To Section 101 And 114 - 2014, Wendy J. Gordon

Scholarship Chronologically

The origin of the definition probably lies with everyone's favorite protean decision, Baker v. Selden, 101 U.S. 99 (1879). For example, in 1924, the Second Circuit borrowed from Baker in upholding the copyright in 'Sparky,' a stuffed doll in the shape of a horse. The crucial distinction, which the court quoted from Baker, was the line between, on the one hand, "designs or pictorial illustrations addressed to the taste" whose "object [is] the production of pleasure in their contemplation," and, on the other hand, "methods of useful art [that] have their final end in application and use. "

Patent Law Federalism, Paul Gugliuzza

Faculty Scholarship

Most lawsuits arising under federal law can be filed in either state or federal court. Patent suits, however, may be filed only in federal court. Why do patent cases receive exceptional treatment? The usual answer is that federal courts, unlike state courts, provide uniformity and expertise in patent matters. This Article analyzes whether exclusive jurisdiction actually serves those policy aims and concludes that the uniformity-expertise rationale is overstated. If exclusive federal patent jurisdiction is to be justified, attention must also be given to pragmatic considerations, such as the respective quality of state and federal trial courts, the courts’ ability to …

The Fair Use Doctrine: Markets, Market Failure And Rights Of Use, Wendy J. Gordon

Faculty Scholarship

Markets are most acceptable when they serve efficiency and other goals. It is only under transaction-costless conditions of perfect knowledge, flawless and cost-free enforcement, full monetization, and instantaneous ability to organize and negotiate, that markets are guaranteed to generate efficient outcomes. And even then, markets could fall short as social tools, because goals other than allocative efficiency may fail to be met.