Law Commons^™

The Ncaa's Challenge In Determining Nil Market Value, Meg Penrose

Faculty Scholarship

This Article proceeds in three parts. Part II discusses the changes that NIL has wrought in college athletics. It briefly explains collectives and their impact on NIL. Part III discusses the impossibility of limiting athletes’ “fair market value” given market value depends on what the market is willing to pay. Congress has failed to pass national legislation. Yet the mosaic of state laws is simply unfit to stand in for national legislation. And, following multiple litigation losses, the NCAA cannot be trusted to “value” the athletes themselves. Market value, if one is to be established, must be uniform and assessed …

War & Ip, Peter K. Yu

Faculty Scholarship

On February 24, 2022, war broke out between Russia and Ukraine, sparking concerns among government leaders, intergovernmental bodies and the public at large. A month later, the Russian government issued Decree 299, which reduced to zero the royalty rate for national security-based compulsory licenses to intellectual property rights held by individuals or entities originating from the United States or other "unfriendly" nations. Meanwhile, the United States and other members of the international community imposed sanctions on Russia, raising questions about whether those sanctions would prevent U.S. companies and individuals from engaging with Russian intellectual property agencies. Many multinational corporations also …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Faculty Scholarship

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Gutte

Faculty Scholarship

Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the "injurer-innovator problem." Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation …

Competition And Congestion In Trademark Law, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna

Faculty Scholarship

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this Article, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being …

Desettling Fixation, Emily T. Behzadi Cárdenas

Faculty Scholarship

Scholars have long contemplated how the effects of colonialism have permeated even race “neutral” laws. This Article scrutinizes the ways Eurocentric copyright systems have failed to protect, and have even encouraged, the unauthorized uses of indigenous heritage in derivative subject matter, exposing how settler colonialism in copyright law has entrenched an unequal hierarchy among communities seeking copyright protection. Due to its ephemeral nature, intangible cultural heritage constantly faces the threat of exploitation by dominant cultures. The intangible heritage of indigenous groups has been particularly vulnerable to illicit and uncompensated commodification. Intangible heritage, such as oral histories and traditional dances, is …

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …

Special Challenges In Execution Of Arbitral Awards In Public Private Partnerships, Srividhya Ragavan, Niraj Kumar Seth

Faculty Scholarship

With around 47 million pending cases at various stages of Indian judiciary and one of the lowest levels of judges per million of population in the world, India’s arbitration regime presents a ray of hope for millions of Indians who face the prospect of justice being denied to them due to inordinate delays caused by a clogged judicial pipeline. The enactment of the Arbitration and Conciliation Act, 1996 was presented as a viable alternative to resolve commercial disputes in a timely manner. This paper uses a case study to discuss how arbitration in India has not fulfilled the timeliness promise …

Historic Tensions Involving International Intellectual Property Protection Of Medical Technology With Disastrous Public Health Consequences, Srividhya Ragavan, Swaraj Paul Barooah

Faculty Scholarship

Historic tensions have pervaded the alliance of intellectual property's ill-fated accord with trade. The intersections of the alliance have impacted access to medical technologies resulting in plaguing public health with disastrous consequences in select parts of the globe, the first of which was perhaps most notably seen during the HIV-AIDS crisis at the turn of the century. At this time, WTO’s sacrosanct norms from the accord between trade and intellectual property rights essentially force African countries to choose between international trade sanctions, and saving thousands of lives by allowing exceptions to patent rights. While much has been written about global …

Copyright Fiduciaries: Problems And Solutions, Jessica Silbey

Faculty Scholarship

Andrew Gilden & Eva E. Subotnik, Copyright’s Capacity Gap, 57 U.C. Davis L. Rev. __ (forthcoming, 2023), available at SSRN (Aug. 9, 2023).

In this forthcoming article, Andrew Gilden and Eva Subotnik begin an important conversation about an underexplored area of copyright law. Their focus is copyright law’s inconsistent treatment of mental capacity. Under copyright law, copyright authors can produce valuable copyrighted work but those same authors may lack the legal capacity to make decisions about if, when, or how to exploit that work. For example, children and people with mental illness or disability can be copyright authors, but …

Vaccine Development, The China Dilemma, And International Regulatory Challenges, Peter K. Yu

Faculty Scholarship

This article examines the role played by China in the development of international regulatory standards at the intersection of intellectual prop- erty, international trade, and public health. It begins by briefly discussing the role China has played in the global health arena during the COVID-19 pandemic. The article then highlights the difficulty in determining how best to engage with the country in the development of new international regula- tory standards. It shows that the preferred method of engagement will likely depend on one’s perspective on China’s potential contributions and hin- drances: a perspective that focuses on global competition—in the economic, …

Utility, Copyright, And Fair Use After Warhol, Keith N. Hylton

Faculty Scholarship

This paper is a reaction to AWF v. Goldsmith (Warhol), which finds that Warhol’s adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol’s use, while the dissent emphasizes the artistically transformative quality of Warhol’s adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of the fair use doctrine. That need was largely …

Two Decades Of Trips In China, Peter K. Yu

Faculty Scholarship

This chapter reviews China’s engagement with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the past twenty years. It begins by highlighting TRIPS-related developments in the first decade of China’s WTO membership. The chapter then discusses the country’s ‘innovative turn’ in the mid-2000s and the ramifications of its changing policy positions. This chapter continues to examine the US-China trade war, in particular the second TRIPS complaint that the United States filed against China in March 2018. It concludes with observations about the impact of the TRIPS Agreement on China, China’s impact on that agreement and how the …

Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell

Faculty Scholarship

We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” …

Additional Comments On Preliminary Draft 9, Jane C. Ginsburg

Faculty Scholarship

I am adding to the comments submitted by Profs. Balganesh, Menell and myself a list of points in PD9 that I believe require correction or clarification. These comments do not include Chapters 8, 10 or 11.

Rethinking Education Theft Through The Lens Of Intellectual Property And Human Rights, Peter K. Yu

Faculty Scholarship

This Essay problematizes the increased propertization and commodification of education and calls for a rethink of the emergent concept of “education theft” through the lens of intellectual property and human rights. This concept refers to the phenomenon where parents, or legal guardians, enroll children in schools outside their school districts by intentionally violating the residency requirements. The Essay begins by revisiting the debate on intellectual property rights as property rights. It discusses the ill fit between intellectual property law and the traditional property model, the impediments the law has posed to public access to education, and select reforms that have …

Three Megatrends In The International Intellectual Property Regime, Peter K. Yu

Faculty Scholarship

Since the establishment of the Paris and Berne Conventions, the international intellectual property regime has encountered two world wars, struggled with several global pandemics, welcomed dozens of newly independent nations and interacted with a wide variety of technologies and innovative practices. Although this regime progressed only slowly for the larger part of its first century, it saw major transformation in the past four decades, including the adoption of the WTO TRIPS Agreement.

Written in commemoration of the centennial of the American Branch of the International Law Association, this article identifies three megatrends to illuminate the magnitude and ramifications of such …

Foreword, Jessica Silbey

Faculty Scholarship

Most of us think we are familiar with graffiti – lettering on trains or graphic images on walls that follow us as we walk by. But Enrico Bonadio’s new book on graffiti and street art opens a door to more complex and nuanced worlds of artists and their communities. The focus is on everyday creators of graffiti and street art. Built from nearly 100 interviews and hundreds of hours of observation, the book is filled with the voices of artists and vivid details of their plein air studios and interactions. Also present in the book is the author, who weaves …

A New Approach To Patent Reform, Janet Freilich, Michael J. Meurer, Mark Schankerman, Florian Schuett

Faculty Scholarship

Scholars and policy makers have tried for years to solve the tenacious and harmful crisis of low quality, erroneously granted patents. Far from resolving the problem, these determined efforts have resulted in hundreds of conflicting policy proposals, failed Congressional bills, and no way to evaluate the policies’ value or impact or to decide between the overwhelming multiplicity of policies.

This Article provides not only new solutions, but a new approach for designing and assessing policies both in patent law and legal systems more generally. We introduce a formal economic model of the patent system that differs from existing scholarship because …

A Patent And A Prize, Keith N. Hylton

Faculty Scholarship

This paper examines a simple and old question: should innovators receive a patent or a prize? The answer I provide is equally simple: they should receive both. The literature on patents versus prizes has proceeded mostly under the assumption that there should be a choice between a regime of patents and a regime of prizes in which patents fall into the public domain upon award of the prize. There are significant “public choice costs” under the prize plans. By this I mean there are risks of inappropriate transfers to patentees – that is, looting – and of confiscation of patentees, …

Deferring Intellectual Property Rights In Pandemic Times, Peter K. Yu

Faculty Scholarship

This Article examines an unprecedented proposal that India and South Africa submitted to the World Trade Organization (WTO) in October 2020, which called for a waiver of more than 30 provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights to help combat COVID-19. It begins by recounting the proposal's strengths and weaknesses. The Article then identifies the challenges surrounding the negotiation and implementation of the proposed waiver. It shows why these two sets of challenges were neither separate nor sequential, but deeply entangled at the time of the international negotiations.

To respond to these challenges and the negotiation …

Data Property, Christina Mulligan, James Grimmelmann

Faculty Scholarship

No abstract provided.

Comments On Council Draft 7 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

CD7 adopts several of the suggestions in my comments on PD8; I appreciate those modifications. CD7 does not, however, respond to a number of other criticisms and suggestions regarding PD8. For the benefit of the Council, I reprise the suggestions that I consider to be most significant to ensuring the accuracy of the draft (page and line references have been changed to reflect CD7)

Twenty Years Of Us Digital Copyright: Adapting From Analogue, Jane C. Ginsburg

Faculty Scholarship

This review of the period 2001–21 in US copyright law will summarize digital-dominated developments concerning the scope of exclusive rights and exceptions and liability regimes. It will address several developments, all related to the impact of the internet on the exploitation of works of authorship. Digital storage and communications have called into question the scope of the exclusive rights set out in the US Copyright Act, and they have considerably expanded the reach of the fair use exemption. They have strained statutory and common law regimes of secondary liability and prompted the development of a ‘volition’ predicate to primary liability. …

Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee

Faculty Scholarship

Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …

A Qualitative Method For Investigating Design, Jessica Silbey, Mark P. Mckenna

Faculty Scholarship

This chapter describes our qualitative study of designers and design practice. It situates the study in the broader field of empirical studies of intellectual property, and it describes in detail the methodology and benefits of a qualitative interview study of designers and design practice to shed light on some of the persistent puzzles in design law. The chapter focuses on four lines of inquiry: defining “design” and “design practice” from within the profession; exploring the various inputs to design practice and the process of “problem solving” designers pursue; understanding what “integrated” form and function mean to designers; and explaining the …

There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco

Faculty Scholarship

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …

Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet

Faculty Scholarship

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …

Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey

Faculty Scholarship

Today's intellectual property debates, in both law and the larger society, are a bellwether of changing justice needs in the twenty-first century. As the digital age democratizes technological opportunities, it brings intellectual property law into mainstream everyday culture. This generates debates about the relationship between the constitutional interest in "the progress of science and useful arts" and other fundamental values, such as equality, privacy, and distributive justice. These values, which were not explicitly part of intellectual property regimes in prior eras, are especially challenged in today's internet world.

The article (which was presented as the annual Nies Lecture in April …

Intellectual Property Piracy In The Time Of The Metaverse, James M. Cooper

Faculty Scholarship

The article explores ways in which companies, innovators, artists, and cultural workers can best protect their IP rights in the metaverse. Focusing on IP piracy and counterfeiting, long-time problems in both the real world and online, the article addresses the threats that these illicit activities pose to legitimate commerce, government tax revenues, public safety, and national security. It examines the implications that the metaverse poses for businesses going forward with respect to brand management and revenue source protection and details the manners in which IP rights can be best protected in the metaverse. It concludes with a review of the …