Law Commons^™

Proprietary Rights And Why Initial Allocations Matter, Clarisa Long

Faculty Scholarship

Initial allocations of proprietary rights matter because who starts out holding the rights helps determine who ends up holding the rights. In patent law, proprietary rights are granted to those who are first to invent. But entities who win the race to patent an invention are not necessarily the final, or best, or most efficient users of the technology. If proprietary rights, particularly patents on basic research results, could be traded efficiently so that downstream innovators could obtain them from initial rights holders easily, then initial allocations of proprietary rights would not matter so much. Transferring proprietary rights is costly, …

The Landscape Of Constitutional Property, Thomas W. Merrill

Faculty Scholarship

The Constitution contains two clauses that protect persons against governmental interference with their property. The Due Process Clause provides that "No person shall ... be deprived of life, liberty, or property, without due process of law." The Takings Clause adds, "nor shall private property be taken for public use, without just compensation." Both provisions appear to impose a threshold condition that a claimant have some "property" at stake before the protections associated with the Clause apply. Thus, under the Due Process Clause, it would seem that a claimant must have an interest in "property" (or in "life" or "liberty") before …

International Copyright: From A "Bundle" Of National Copyright Laws To A Supranational Code?, Jane C. Ginsburg

Faculty Scholarship

In recent years, the number and content of substantive norms that international copyright treaties impose on member states have increased considerably. It is therefore appropriate to consider the extent to which those instruments have in effect created an international (or at least multinational) copyright code, as well as to inquire what role national copyright laws do and should have in an era not only of international copyright norms, but of international dissemination of copyrighted works. This Article first considers the displacement of national norms through the evolution of a de facto international copyright code, elaborated in multilateral instruments such as …

Patents And Cumulative Innovation, Clarisa Long

Faculty Scholarship

Proprietary rights to the products of biomedical research have repeatedly been a source of controversy for over twenty years. Patents on biomedical innovations have allowed scientists, academics, and research institutions to raise research funds and have contributed to the growth of the biotechnology industry. But “one firm’s research tool may be another firm’s end product.” Patents have been a source of great concern for academic and basic researchers, who fear that proprietary rights to basic research results will hamper the progress of science, stifle the free flow of new knowledge and the dissemination of research results, and chill the research …

Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

A central difference between contract and property concerns the freedom to "customize" legally enforceable interests. The law of contract recognizes no inherent limitations on the nature or the duration of the interests that can be the subject of a legally binding contract. Certain types of promises – such as promises to commit a crime – are declared unenforceable as a matter of public policy. But outside these relatively narrow areas of proscription and requirements such as definiteness and (maybe) consideration, there is a potentially infinite range of promises that the law will honor. The parties to a contract are free …

Copyright Legislation For The "Digital Millennium", Jane C. Ginsburg

Faculty Scholarship

In October 1998, Congress passed two major copyright bills, the "Digital Millennium Copyright Act" [DMCA], and the "Sonny Bono Copyright Term Extension Act." Moreover, the Senate ratified U.S. accession to the WIPO Copyright and Performances and Phonograms Treaties. The DMCA implements the obligations set forth in articles 11 and 12 of the WIPO Copyright Treaty [WCT] (and articles 18 and 19 of the WIPO Performances and Phonograms Treaty [WPPTI) to protect technological measures against circumvention, and to protect "copyright management information" against removal or alteration that facilitates infringement. The DMCA also includes a chapter on the liability of online service …

The Legal Infrastructure Of High Technology Industrial Districts: Silicon Valley, Route 128, And Covenants Not To Compete, Ronald J. Gilson

Faculty Scholarship

In recent years, scholars and policymakers have rediscovered the concept of industrial districts – spatial concentrations of firms in the same industry or related industries. In this Article, Professor Gilson examines te relationship between high-technology industrial districts and legal infrastructure by comparing the legal regimes of California's Silicon Valley and Massachusetts's Route 128. He contends that legal rides governing employee mobility influence the dynamics of high technology industrial districts by either encouraging rapid employee movement between employers and to startups, as in Silicon Valley, or discouraging such movement, as in Route 128. Because California does not enforce post-employment covenants not …

The Cyberian Captivity Of Copyright: Territoriality And Authors' Rights In A Networked World, Jane C. Ginsburg

Faculty Scholarship

Let me start with two items of received wisdom: 1) Copyright is territorially-based; 2) Cyberspace is not. But copyrighted works circulate in cyberspace. What does that mean for their protection? I have not labeled this essay "The Cyberian Captivity of Copyright," just because the title is alliterative and fittingly portentious for an inaugural lecture. Rather, like the "Babylonian Captivity" of the papacy in Avignon that the title recalls, it suggests a displacement of an international institution. This need not mean, however, that the displacement is a Bad Thing - after all, the French probably have a more favorable view of …

Copyright And Intermediate Users' Rights, Jane C. Ginsburg

Faculty Scholarship

The impending "Digital Millennium" has amplified the assertion of users' rights in U.S. copyright law. Copyright has been reimagined as a "law of users' rights" whose acolytes caution copyright owners not to stand as piggish impediments to the progress of learning and culture in the Digital Age. Proponents advance a variety of arguments in support of a user rights construct of copyright law, from the historical to the philosophical to the pragmatic. I propose to address some of these. But first it is important to specify what I mean by "users' rights" in U.S. copyright law today.

User rights in …

The Constitution And The Cathedral: Prohibiting, Purchasing, And Possibly Condemning Tobacco Advertising, Thomas W. Merrill

Faculty Scholarship

This Article has both theoretical and practical objectives, which are closely interrelated. The theoretical objective is to develop a framework for understanding the "transaction structure" of constitutional rights. By this, I refer to the different rules that determine when the government may purchase, condemn, or otherwise extinguish constitutional rights. The practical objective is to consider different options that may be available to the government, as part of a broader effort to reduce the incidence of smoking, to curtail tobacco advertising that would otherwise be protected under the First Amendment. It is my hope that the theoretical framework will illuminate the …

Secured Credit And Software Financing, Ronald J. Mann

Faculty Scholarship

Software is a relatively new type of business asset, but already has taken on a central role in all sectors of the economy; when any asset brings such a crucial value to businesses, the desire for lending based on that asset cannot be far behind. Unfortunately, the existing academic literature contains no sustained examination of software-related lending.

Because the software industry is in its infancy, the existing empirical evidence is inadequate to support any understanding of it. Accordingly, I undertook a series of twenty-nine informal interviews with industry participants, including lenders in both the Massachusetts Route 128 corridor and Silicon …

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Faculty Scholarship

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …

Can Patents Deter Innovation? The Anticommons In Biomedical Research, Michael Heller, Rebecca S. Eisenberg

Faculty Scholarship

The "tragedy of the commons" metaphor helps explain why people overuse shared resources. However, the recent proliferation of intellectual property rights in biomedical research suggests a different tragedy, an "anticommons" in which people underuse scarce resources because too many owners can block each other. Privatization of biomedical research must be more carefully deployed to sustain both upstream research and downstream product development. Otherwise, more intellectual property rights may lead paradoxically to fewer useful products for improving human health.

Ownership Of Electronic Rights And The Private International Law Of Copyright, Jane C. Ginsburg

Faculty Scholarship

When, in response to a French decision upholding the rights of employee journalists to prevent the publisher's unauthorized licensing of electronic rights in the journalists' articles, French newspaper publishers yearn for "American-style copyright," they must imagine a work-made-for-hire nirvana in which publishers dispose of all rights in contributions to their periodicals, heedless of (and legally shielded from) authors' pesty claims for payment or control. To the extent that the work-made-for-hire doctrine applies, the publishing paradise conjured up by these French fantasies of law "reform" is very real indeed. Under U.S. copyright law, employee creators are not statutory "authors;" their employer …

The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller

Faculty Scholarship

Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another When too many owners hold such privileges of use, the resource is prone to overuse – a tragedy of the commons. Depleted fisheries …

Authors As "Licensors" Of "Informational Rights" Under U.C.C. Article 2b, Jane C. Ginsburg

Faculty Scholarship

U.C.C. Articles 2B of the Uniform Commercial Code was designed primarily to regulate online and mass market transactions, particularly the licensing of computer software. Its effects, however, will extend to authors of works other than computer software. This Article considers the effects Article 2B would have on dealings between those authors and the exploiters of the authors' works. By reducing procedural barriers to the formation of licenses, Article 2B would make it all too easy for an author to assent to contract terms that may heavily favor an exploiter of the author's work. On the other hand, default contract terms …

Electronic Rights In Belgium And France: General Association Of Professional Journalists Of Belgium V. Central Station (Brussels Court Of First Instance, October 16, 1996; Brussels Court Of Appeals, October 28, 1997); Union Of French Journalists V. Sdv Plurimedia (Strasbourg Court Of Grand Instance, February 3, 1998) Symposium On Electronic Rights In International Perspective, Jane C. Ginsburg

Faculty Scholarship

Like many national presses in Europe, the Belgian press divides ideologically. Each daily newspaper represents the views of a political party, or expresses the perspective of a political or religious belief. Newspaper readers therefore tend to select the newspaper that most closely corresponds to their world-view. Ten publishers of Belgian dailies and weeklies formed a consortium, Central Station, to operate a website that would offer a crossection of all the participating periodicals' articles on a variety of subjects. The articles would appear in print in their separate newspapers in the morning, but would be available that evening on the Central …

Symposium On Electronic Rights In International Perspective: Introduction, Jane C. Ginsburg

Faculty Scholarship

Recent litigation in the U.S., Germany, the Netherlands, Belgium, and France has placed at issue the electronic publishing rights of employee and freelance journalists, contributors to print periodicals. In all five national controversies, the proprietors of the print publications, without securing the writers' express authorization, disseminated their articles in a variety of electronic media, including CD-ROM, third-party databases, and websites. Judicial resolution of the disputes required parsing the respective rights, under local copyright law (and in some cases, labor law as well), of the authors of the contributions to the periodicals, and of the copyright owners of the collective works …

Extraterritoriality And Multiterritorality In Copyright Infringement, Jane C. Ginsburg

Faculty Scholarship

Extraterritorial application of U.S. law, as Professor Curtis Bradley demonstrates, is highly suspect, if not illegitimate, unless clearly authorized by Congress. The apparently “extraterritorial” character of much recent copyright litigation has led some U.S. courts to dismiss for lack of subject matter jurisdiction or on grounds of forum non conveniens when the cases present offshore points of attachment. As copyright commerce becomes increasingly international, some of these dismissals may be unwarranted. They also may be incorrect in their refusal to apply U.S. law or retain U.S. jurisdiction over the parties: the decisions may be too quick to perceive "extra"-territoriality in …

Authors And Users In Copyright, Jane C. Ginsburg

Faculty Scholarship

It has become fashionable, among some thinkers and activists in copyright and related fields, to disparage or to deplore copyright protection. For one drawn to copyright both for its intellectual fascination and its inspiring goals of fostering creativity and protecting authorship, I am distressed to learn that I am among the defenders of a fallen faith, that authors' rights are misguided (if not pernicious) impediments to technological progress, and, worst of all, that copyright blocks freedom of thought and speech in cyberspace. Digital agendas notwithstanding, some of this derogatory discourse is not new; infringers have long found eloquent, if somewhat …

Copyright, Common Law, And Sui Generis Protection Of Databases In The United States And Abroad, Jane C. Ginsburg

Faculty Scholarship

What protection remains for compilations of information, particularly digital databases, since the United States Supreme Court swept away "sweat copyright" in its 1991 Feist decision? "Thin" copyright protection is still available, but it covers only the original contributions (if any) that the compiler brings to the public domain information. Moreover, Feist makes clear that padding the compilation with original added value will not flesh out the skeletal figure beneath: the information, stripped of selection, arrangement, or other copyrightable frills, remains free for the taking.

If copyright is unavailing, contract is appearing more promising, as mass-market, "shrinkwrap" and "click-on" licenses gain …

Copyright Without Borders? Choice Of Forum And Choice Of Law For Copyright Infringement In Cyberspace, Jane C. Ginsburg

Faculty Scholarship

The disjunction between territorial treatment of copyright claims and the ubiquity of cyberspace has led some commentators to urge abandonment of landlocked notions of judicial and legislative competence. Since digital communications resist grounding in particular fora, or governance by individual national laws, these writers contend it would be best to devise a cyberian legal system that would supply cyber-specific substantive copyright law, and/ or virtual dispute settlers whose competence – and whose determinations – would transcend national borders.

My analysis will be more earthbound. This is not to belittle the important ongoing efforts to achieve international harmony of substantive copyright …

Deregulatory Takings, Breach Of The Regulatory Contract, And The Telecommunications Act Of 1996, William J. Baumol, Thomas W. Merrill

Faculty Scholarship

Professors Baumol and Merrill reply to Deregulatory Takings and Breach of the Regulatory Contract, published last year in this Review, which argued that the price incumbents may charge potential competitors for bottleneck facilities under the Telecommunications Act of 1996 should be based not on forward-looking costs but on historical costs. Professors Baumol and Merrill contend that pricing with reference to historical costs would depart from the principles called for by economic analysis for efficient pricing and they further argue that neither the Takings Clause nor the regulatory contract precludes the use of forward-looking costs in setting prices. If a taking …

La Protection Aux Etats-Unis Des Oeuvres D'Art, Jane C. Ginsburg

Faculty Scholarship

French Abstract
Les Etats-Unis sont un marche important d'oeuvres d'art, non seulement pour la vente des tableaux, mais aussi pour !'exploitation de reproductions et d'adaptations des images. Par exemple, en dehors des reproductions traditionnelles telles que celles contenues dans des catalogues et livres d'art et des reproductions sous forme de cartes postales et affiches, une oeuvre d'art originairement corn;ue comme une expression des beaux arts peut s'exploiter telle par exemple une sortie de bain, du papier peint, voire un decor de poubelle. Dans quelle mesure un artiste peut-il etre remunere ou meme s'opposer a J'exploitation commerciale de son oeuvre aux …

U. S. Federalism And Intellectual Property, Jane C. Ginsburg

Faculty Scholarship

The federal structure of the U.S. government presents interesting questions for intellectual property. Which government, national or state, exercises regulatory authority? Or do both governments play a significant role? Questions of this order cannot be addressed unless one first analyzes what the term "intellectual property" comprehends. Intellectual property includes well-recognized regimes of exclusive rights in inventions (patents), literary, artistic and musical creations (copyrights), and trademarks. But it also covers more elusive, and evolving, interests, such as exploitation of one's personal name and image (right of publicity), trade secrets, and a generalized concern with prevention of acts amounting to unlicensed appropriation …

Distinguishing Between Consensual And Nonconsensual Advantages Of Liability Rules, Ian Ayres, Eric Talley

Faculty Scholarship

Louis Kaplow and Steven Shavell's thoughtful reply to our recent article contains powerful insights about the relative efficiency of liability and property rules. While we are in agreement that liability rules can be more efficient than property rules when transaction costs are low, we disagree about the cause of this liability-rule advantage. Kaplow and Shaveli believe that liability rules hold only a nonconsensual advantage over property rules (i.e., liability rules tend to induce efficient nonconsensual takings). While granting this oftrecognized nonconsensual advantage, we contend that liability rules may also have a consensual advantage in low-transaction-cost settings (i.e., liability rules facilitate …

Global Use/Territorial Rights: Private International Law Questions Of The Global Information Infrastructure, Jane C. Ginsburg

Faculty Scholarship

In the private international law of intellectual property, and particularly of literary and artistic property, the basic principle is territoriality. Each country provides for its own regime of protection of works of authorship. The Berne Convention for the Protection and Literary and Artistic Works and the Universal Copyright Convention oblige their members to respect the rule of national treatment, that is, of non discrimination between domestic and foreign works from member countries. This rule reinforces the principle of territoriality, for it confirms the role of local copyright laws, by requiring that local law apply equally to the protection of local …

Exploiting The Artist's Commercial Identity: The Merchandizing Of Art Images, Jane C. Ginsburg

Faculty Scholarship

"Merchandizing properties" are not a recent arrival on the copyright and trademark scene. As early as the 1930s, the Walt Disney Company foresaw the substantial economic gains from licensing the images of its animated motion picture characters in a variety of consumer media, from publications, to soft toys, clothing and household items. Most recently, the World Intellectual Property Organization has prepared a substantial comparative law study of "Character Merchandising." The merchandizing of fine arts images, however, is a more recent development, and is one that has so far received less attention from academic commentators. This article offers some preliminary observations, …

Domestic And International Copyright Issues Implicated In The Compilation Of A Multimedia Product, Jane C. Ginsburg

Faculty Scholarship

Suppose an entrepreneur wishes to create an interactive multimedia product on the theme of the Exploration of Space. The multimedia work would assemble components created specially for the product, and others drawn from preexisting works. The latter might include: Leonardo da Vinci drawings of aeronautical machines, archival photographs of early airplanes, excerpts from 19th and 20th century science-fiction novels, text and photos of newspaper accounts of space flights, NASA space maps, television news clips, excerpts of motion pictures and television series, and musical compositions and recordings. Elements specially created for the product might comprise the computer program users would employ …

Putting Cars On The "Information Superhighway": Authors, Exploiters, And Copyright In Cyberspace, Jane C. Ginsburg

Faculty Scholarship

The advent of the "Information Superhighway" has sparked much speculation about the roles of authorship, of readership, and of literary property in the vast system of interlinked computer networks that has come to be known as "cyberspace." Through computers linked to a digital network, users can access and add to vast quantities of material. At least in theory, every computer user can become his, or her own publisher, and every terminal can become a library, bookstore, or audio and video jukebox.

The prospect of pervasive audience access to and ability to copy and further disseminate works of authorship challenges the …