Law Commons^™

Intellectual Property And Competition, Herbert J. Hovenkamp

All Faculty Scholarship

A legal system that relies on private property rights to promote economic development must consider that profits can come from two different sources. First, both competition under constant technology and innovation promote economic growth by granting many of the returns to the successful developer. Competition and innovation both increase output, whether measured by quantity or quality. Second, however, profits can come from practices that reduce output, in some cases by reducing quantity, or in others by reducing innovation.

IP rights and competition policy were traditionally regarded as in conflict. IP rights create monopoly, which was thought to be inimical to …

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 …

Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey

Faculty Scholarship

This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. …

Rethinking Copyright And Personhood, Christopher S. Yoo

All Faculty Scholarship

One of the primary theoretical justifications for copyright is the role that creative works play in helping develop an individual’s sense of personhood and self-actualization. Typically ascribed to the writings of Immanuel Kant and Georg Wilhelm Friedrich Hegel, personhood-based theories of copyright serve as the foundation for the moral rights prominent in European copyright law and mandated by the leading intellectual property treaty, which give authors inalienable control over aspects of their works after they have been created. The conventional wisdom about the relationship between personhood and copyright suffers from two fatal flaws that have gone largely unappreciated. First, in …

The Genius Of Common Law Intellectual Property, Shyamkrishna Balganesh

All Faculty Scholarship

Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common law intellectual property. In it, we see Epstein’s attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common law intellectual property refers to different judge made causes of action that create forms of exclusive rights and privileges in intangibles, interferences with which are then rendered enforceable through private liability. In this Essay, I examine Epstein’s writing on two such doctrines: “hot news misappropriation” and “cyber-trespass”, which embraces several important ideas that modern discussions …

In The Shadow Of The Law: The Role Of Custom In Intellectual Property, Jennifer E. Rothman

All Faculty Scholarship

Custom, including industry practices and social norms, has a tremendous influence on intellectual property (“IP”) law, from affecting what happens outside of the courts in the trenches of the creative, technology, and science-based industries, to influencing how courts analyze infringement and defenses in IP cases. For decades, many scholars overlooked or dismissed the impact of custom on IP law in large part because of a belief that the dominant statutory frameworks that govern IP left little room for custom to play a role. In the last ten years, however, the landscape has shifted and more attention has been given to …

From Venetian Glass To Contemporary Intellectual Property: Revisiting Tailored Patent Regimes (Book Review), Ana Santos Rutschman

All Faculty Scholarship

This piece reviews Stefania Fusco's “Murano Glass Vase" and "Lessons from the Past." In Murano Glass Vase, Fusco recounts the history of the glassmaking industry in Venice, framing it as the natural experiment from which the patent system sprang into the world. Fusco emphasizes the mix of exclusionary rights and trade secrecy that formed the backbone of Venetian innovation policy against the backdrop of a heavily regulated and protectionist economy. In “Lessons from the Past,” Fusco draws on original research performed at the Venetian State Archives to further the Murano narrative by looking at how the Venetian government fueled an …

Health Care Costs And The Arc Of Innovation, Neel U. Sukhatme, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

Health care costs continue their inexorable rise, threatening America’s long-term fiscal stability, competitiveness, and standard of living. Over the past half-century, efforts to rein in spending have uniformly failed. In this Article, we explain why, breaking with standard accounts of regulatory and market dysfunction. We point instead to the nexus of economics, mutual empathy, and social expectations that drives medical innovation and locks in low-value technologies. We show how law reflects and reinforces this nexus and how and why health-policy-makers avert their gaze.

Next, we propose to circumvent these barriers instead of surmounting them. Rather than targeting today’s excessive spending, …

Tempesta Map Of Rome, Jane C. Ginsburg

Faculty Scholarship

In the late 1580s, Florentine painter and printmaker Antonio Tempesta (1555-1630), having thrived under the earlier Pope Gregory XIII, found himself on the ebbing end of the next Pope, Sixtus V's patronage. Tempesta's commissions to fresco churches or residences had fallen off, but the burgeoning print market offered new opportunities. Printed images of Rome proved increasingly popular with pilgrims, particularly in anticipation of the Jubilee of 1600. Moreover, Rome's urban transformation under Sixtus V refocused attention from the ruined glories of the imperial past to the grandiose design of new thoroughfares, piazzas, fountains, and edifices. The newly mastered engineering feat …

Justifying Copyright In The Age Of Digital Reproduction: The Case Of Photographers, Jessica Silbey

Faculty Scholarship

This Article explores the justification for copyright from two sources: seminal court cases and accounts from photographic authors. It takes as its premise that copyright protection requires justification, not only because creative work is frequently made and disseminated without reliance on copyright, but because, in the age of digital technology, practices of creative production and dissemination have sufficiently changed to question the existing contours of the forty-year-old Copyright Act. Why read the photographers’ stories alongside the court cases? Each present contested views of copyright’s relation to creativity. At times, the photographers’ accounts and the case law strengthen and reinforce each …

Control Over Contemporary Photography: A Tangle Of Copyright, Right Of Publicity, And The First Amendment, Jessica Silbey

Faculty Scholarship

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks …

Property And Equity In Trademark Law, Mark Mckenna

Journal Articles

This essay, delivered as the Nies Lecture at Marquette Law School, focuses on changes in the doctrinal structure of trademark law over the course of the last century — specifically with respect to the relationship between trademark law’s limits and the broader common law of unfair competition. Changes in that relationship, I will argue, meaningfully increased trademark law's emphasis on property — what the plaintiff owns — and deemphasized legal rules that focused on the defendant’s conduct.

Existential Copyright And Professional Photography, Jessica Silbey, Eva Subotnik, Peter Dicola

Faculty Scholarship

Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual …