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Full-Text Articles in Law

Tools For Data Governance, Michael J. Madison Jan 2020

Tools For Data Governance, Michael J. Madison

Articles

This article describes the challenges of data governance in terms of the broader framework of knowledge commons governance, an institutional approach to governing shared knowledge, information, and data resources. Knowledge commons governance highlights the potential for effective community- and collective-based governance of knowledge resources. The article focuses on key concepts within the knowledge commons framework rather than on specific law and public policy questions, directing the attention of researchers and policymakers to critical inquiry regarding relevant social groups and relevant data “things.” Both concepts are key tools for effective data governance.


Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton Jul 2019

Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton

Articles

2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her ...


What's News?, Michael J. Madison Jan 2019

What's News?, Michael J. Madison

Articles

This review of Will Slauter’s Who Owns the News? (2019) highlights three ways in which its history of copyright in news tracks and illustrates key themes in the history of cultural policy. One is how copyright law and journalistic style co-evolved, confirming the attributes of modern journalism itself and deploying style as a device for defining the scope of news producers’ legitimate copyright claims. In the news, as elsewhere in copyright, exclusivity and genre largely co-created each other. Two is how the labor and skill of individual human producers of knowledge are often hidden amid prominent debates about relationships ...


Ostrom Amongst The Machines: Blockchain As A Knowledge Commons, Herminio Bodon, Pedro Bustamante, Marcela Gomez, Prashabnt Krishnamurthy, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Martin B. H. Weiss Jan 2019

Ostrom Amongst The Machines: Blockchain As A Knowledge Commons, Herminio Bodon, Pedro Bustamante, Marcela Gomez, Prashabnt Krishnamurthy, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Martin B. H. Weiss

Articles

Blockchains are distributed ledger technologies that allow the recording of any data structure, including money, property titles, and contracts. In this paper, we suggest that Hayekian political economy is especially well suited to explain how blockchain emerged, but that Elinor Ostrom’s approach to commons governance is particularly useful to understand why blockchain anarchy is successful. Our central conclusions are that the blockchain can be thought of as a spontaneous order, as Hayek anticipated, as well as a knowledge commons, as Ostrom’s studies of self-governance anticipated.


Is Blockchain The Next Step In The Evolution Chain Of [Market] Intermediaries?, Marcela Gomez, Pedro Bustamante, Martin B. H. Weiss, Ilia Murtazashvili, Michael J. Madison, Wilson Law, Tymofiy Mylovanov, Herminio Bodon, Prashabnt Krishnamurthy Jan 2019

Is Blockchain The Next Step In The Evolution Chain Of [Market] Intermediaries?, Marcela Gomez, Pedro Bustamante, Martin B. H. Weiss, Ilia Murtazashvili, Michael J. Madison, Wilson Law, Tymofiy Mylovanov, Herminio Bodon, Prashabnt Krishnamurthy

Articles

The blockchain is a decentralized solution for handling transactions where we are concerned (among other aspects) with the accuracy and verification of transactions. One of its main promises is to eliminate the need for centralized entities or intermediaries and legal enforcement. Rather than trusting self-interested human intermediaries, the blockchain provides an alternative that relies on transparent computational protocols (Werbach 2018).

In this paper, we delve into this broker-less claim and analyze whether the blockchain needs an intermediary to allow for widespread access to its functionality and whether the blockchain itself is an intermediary. The latter would turn the blockchain into ...


Everything Old Is New Again: Does The '.Sucks' Gtld Change The Regulatory Paradigm In North America?, Jacqueline D. Lipton Jan 2019

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 ...


Ip Things As Boundary Objects: The Case Of The Copyright Work, Michael J. Madison Jan 2017

Ip Things As Boundary Objects: The Case Of The Copyright Work, Michael J. Madison

Articles

My goal is to explore the meanings and functions of the objects of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. This paper takes up the example of the copyright work.

It is usually argued that the central challenge in understanding the work is to develop a sensible method for appreciating its boundaries. Those boundaries, conventionally understood as the metaphorical "metes and bounds" of the work, might be established by deferring to the intention of the author, or by searching for authorship (creativity or originality ...


Derivative Works 2.0: Reconsidering Transformative Use In The Age Of Crowdsourced Creation, Jacqueline D. Lipton, John Tehranian Jan 2015

Derivative Works 2.0: Reconsidering Transformative Use In The Age Of Crowdsourced Creation, Jacqueline D. Lipton, John Tehranian

Articles

Apple invites us to “Rip. Mix. Burn.” while Sony exhorts us to “make.believe.” Digital service providers enable us to create new forms of derivative work — work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement ...


Towards An Outcrit Pedagogy Of Anti-Subordination In The Classroom, Sheila I. Velez Martinez Jan 2015

Towards An Outcrit Pedagogy Of Anti-Subordination In The Classroom, Sheila I. Velez Martinez

Articles

This article discusses how traditional teaching practices can reinforce systemic discrimination, exclusion, subordination and oppression within the classroom in particular detriment to women and students of color. The article traces the discussions about pedagogy in Outcrit literature and proposes that Outcrit scholars teaching techniques within the classroom should reflect anti-subordination praxis in teaching. Drawing from the work of Freire, Bell and others, the article proposes that teaching from an anti-subordination perspective requires a praxis of collaborative, non-hierarchical teaching that calls for an epistemological shift. A pedagogy that frees the student to think independently and leads to an experience where there ...


Lost Classics Of Intellectual Property Law, Michael J. Madison Jan 2014

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 ...


Book Review -- William Patry, How To Fix Copyright, Michael J. Madison Jan 2013

Book Review -- William Patry, How To Fix Copyright, Michael J. Madison

Articles

I review William Patry’s book How to Fix Copyright. The book is noteworthy for its ambitious yet measured effort to diagnose where copyright law has gone astray in recent years. It is less successful with respect to proposing possible changes to the law. Most interesting are parallels between How to Fix Copyright and an earlier comprehensive look at copyright law in the digital era: Paul Goldstein’s Copyright’s Highway: From Gutenberg to the Celestial Jukebox. William Patry and Paul Goldstein each have a lot of faith in the power of consumer choice in the cultural marketplace. That faith ...


Madisonian Fair Use, Michael J. Madison Jan 2012

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.


The End Of The Work As We Know It, Michael J. Madison Jan 2012

The End Of The Work As We Know It, Michael J. Madison

Articles

This paper takes a new look at the concept of the work of authorship in copyright, known in other systems as the copyright work. It complements inquiries into authorship and originality, extending earlier scholarship on the origins of legal “things” or objects and on the multi-dimensional character of their borders and boundaries.


Knowledge Curation, Michael J. Madison Jan 2011

Knowledge Curation, Michael J. Madison

Articles

This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing new knowledge and offering access to it. Equivalent attention rarely is paid to questions of old knowledge. To what extent should the law, and particularly intellectual property law, focus on the durability of information and knowledge? To what extent does the law do so already, and to what effect? This article begins to explore those questions. Along the way, the article takes up distinctions among different types ...


Beyond Invention: Patent As Knowledge Law, Michael J. Madison Jan 2011

Beyond Invention: Patent As Knowledge Law, Michael J. Madison

Articles

The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law. The article suggests that patent and copyright law jurisprudence was constructed initially by the Court with explicit attention to the relationship between these forms of intellectual property law and the roles of knowledge in society. Over time, explicit attention to that relationship has largely disappeared from ...


Bad Faith In Cyberspace: Grounding Domain Name Theory In Trademark, Property And Restitution, Jacqueline D. Lipton Jan 2010

Bad Faith In Cyberspace: Grounding Domain Name Theory In Trademark, Property And Restitution, Jacqueline D. Lipton

Articles

The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with others’ trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on advertisements ...


Constructing Commons In The Cultural Environment, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg Jan 2010

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 ...


Beyond Creativity: Copyright As Knowledge Law, Michael J. Madison Jan 2010

Beyond Creativity: Copyright As Knowledge Law, Michael J. Madison

Articles

The Supreme Court’s copyright jurisprudence of the last 100 years has embraced the creativity trope. Spurred in part by themes associated with the story of “romantic authorship” in the 19th and 20th centuries, copyright critiques likewise ask, “Who is creative?” “How should creativity be protected (or not) and encouraged (or not)?” and “ Why protect creativity?” Policy debates and scholarship in recent years have focused on the concept of creativity in framing copyright disputes, transactions, and institutions, reinforcing the notion that these are the central copyright questions. I suggest that this focus on the creativity trope is unhelpful. I argue ...


Foreword: On Publishing Anonymously, Anthony C. Infanti Jan 2010

Foreword: On Publishing Anonymously, Anthony C. Infanti

Articles

In this foreword to the fall 2010 issue of the Pittsburgh Tax Review, I explain the troubling set of circumstances that led to our decision to publish one of the articles anonymously. All of the articles in this issue share a focus on suggestions for state and local tax reform in Pennsylvania. The circumstances surrounding the decision to publish this one article anonymously raise a host of questions regarding the extent to which tax professionals are free to make suggestions for tax reform without being subject to employer censorship.


Some Optimism About Fair Use And Copyright Law, Michael J. Madison Jan 2010

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.


Reply: The Complexity Of Commons, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg Jan 2010

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.


The University As Constructed Cultural Commons, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg Jan 2009

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.


Notes On A Geography Of Knowledge, Michael J. Madison Jan 2009

Notes On A Geography Of Knowledge, Michael J. Madison

Articles

Law and knowledge jointly occupy a metaphorical landscape. Understanding that landscape is essential to understanding the full complexity of knowledge law. This Article identifies some landmarks in that landscape, which it identifies as forms of legal practice: several recent cases involving intellectual property licenses, including the recent patent law decision in Quanta v. LG Electronics and the open source licensing decision in Jacobsen v. Katzer. The Article offers a preliminary framework for exploring the territories of knowledge practice in which those legal landmarks appear.


To (C) Or Not To (C)? Copyright And Innovation In The Digital Typeface Industry, Jacqueline D. Lipton Jan 2009

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 ...


Of Coase And Comics, Or, The Comedy Of Copyright, Michael J. Madison Jan 2009

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 ...


Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline D. Lipton Jan 2008

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 ...


Funky Mussels, A Stolen Car, And Decrepit Used Shoes: Non-Conforming Goods And Notice Thereof Under The United Nations Sales Convention, Harry Flechtner Jan 2008

Funky Mussels, A Stolen Car, And Decrepit Used Shoes: Non-Conforming Goods And Notice Thereof Under The United Nations Sales Convention, Harry Flechtner

Articles

This is a draft of a paper that will appear in a forthcoming issue of the Boston University International Law Journal. This paper, which derives from comments delivered at a 2006 conference held at Istanbul (Turkey) Bilgi University, gives an overview of Part III, Chapter II, Section II of the United Nations Convention on Contracts for the International Sale of Goods (CISG). This portion of the Convention encompasses provisions addressing a number of critical issues, including the seller's obligations concerning the quality (Article 35), title (Article 41) and intellectual property aspects (Article 42) of goods sold in a transaction ...


Writing To Learn Law And Writing In Law: An Intellectual Property Illustration, Michael J. Madison Jan 2008

Writing To Learn Law And Writing In Law: An Intellectual Property Illustration, Michael J. Madison

Articles

This essay, prepared as part of a Symposium on teaching intellectual property law, describes a method of combining substantive law teaching with a species of what is commonly called "skills" training. The method involves assessing students not via traditional final exams but instead via research memos patterned after assignments that junior lawyers might encounter in actual legal practice. The essay grounds the method in the theoretical disposition known generally as "writing to learn." It argues that students are likely to learn intellectual property law effectively if they learn to practice as intellectual property lawyers, and specifically to write as intellectual ...


Intellectual Property And Americana, Or Why Ip Gets The Blues, Michael J. Madison Jan 2008

Intellectual Property And Americana, Or Why Ip Gets The Blues, Michael J. Madison

Articles

This essay, prepared as part of a Symposium on intellectual property law and business models, suggests the re-examination of the role of intellectual property law in the persistence of cultural forms of all sorts, including (but not limited to) business models. Some argue that the absence of intellectual property law inhibits the emergence of durable or persistent cultural forms; copyright and patent regimes are justified precisely because they supply foundations for durability. The essay tests that proposition via brief reviews of three persistent but very different cultural models, each of which represents a distinct form of American culture: The Rocky ...


The Idea Of The Law Review: Scholarship, Prestige, And Open Access, Michael J. Madison Jan 2006

The Idea Of The Law Review: Scholarship, Prestige, And Open Access, Michael J. Madison

Articles

This Essay was written as part of a Symposium on open access publishing for legal scholarship. It makes the claim that open access publishing models will succeed, or not, to the extent that they account for the existing economy of prestige that drives law reviews and legal scholarship. What may seem like a lot of uncharitable commentary is intended instead as an expression of guarded optimism: Imaginative reuse of some existing tools of scholarly publishing (even by some marginalized members of the prestige economy - or perhaps especially by them) may facilitate the emergence of a viable open access norm.