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Full-Text Articles in Law
Casting A Frand Shadow: The Importance Of Legally Defining "Fair And Reasonable" And How "Microsoft V. Motorola" Missed The Mark, Rebecca Haw Allensworth
Casting A Frand Shadow: The Importance Of Legally Defining "Fair And Reasonable" And How "Microsoft V. Motorola" Missed The Mark, Rebecca Haw Allensworth
Vanderbilt Law School Faculty Publications
High tech markets must strike an awkward balance between coordination and competition in order to achieve efficiency. The need for competition is familiar; antitrust--as well as many other legal institutions--recognizes that consumers benefit and resources are best allocated when producers face fierce competition. But at the same time, the interoperability of competing high tech products can promote both consumer and producer welfare, necessitating a level of coordination not typically associated with atomistic, competitive markets. The necessity of interoperability has been addressed privately by industry-wide standard-setting and coordination of competitors around these standards. Likewise, the competitive risks of that coordination are …
Making Patents Useful, Sean B. Seymore
Making Patents Useful, Sean B. Seymore
Vanderbilt Law School Faculty Publications
It is axiomatic in patent law that an invention must be useful. The utility requirement has been a part of the statutory scheme since the Patent Act of 1790. But what does it mean to be useful? The abstract and imprecise nature of the term combined with the lack of objective criteria for assessing it make utility the most malleable patentability requirement. As the invention landscape has evolved over time, the Patent Office and the courts have exploited this malleability to create technologically specific utility standards — de minimis for some inventions, but considerably more stringent for others. This has …
Creating Around Copyright, Joseph P. Fishman
Creating Around Copyright, Joseph P. Fishman
Vanderbilt Law School Faculty Publications
It is generally understood that the copyright system constrains downstream creators by limiting their ability to use protected works in follow-on expression. Those who view the promotion of creativity as copyright’s mission usually consider this constraint to be a necessary evil at best and an unnecessary one at worst. This conventional wisdom rests on the seemingly intuitive premise that more creative choice will deliver more creativity. Yet that premise is belied by both the history of the arts and contemporary psychological research on the creative process. In fact, creativity flourishes best not under complete freedom, but rather under a moderate …
Copyright Infringement And The Separated Powers Of Moral Entrepreneurship, Joseph P. Fishman
Copyright Infringement And The Separated Powers Of Moral Entrepreneurship, Joseph P. Fishman
Vanderbilt Law School Faculty Publications
This Article examines the copyright industries’ “moral entrepreneurs,” sociologist Howard Becker’s term for enterprising crusaders who seek to change existing social norms regarding particular conduct. Becker’s conception of moral entrepreneurship consists of two groups performing separate tasks: rule creators work to translate their preferred norms into legal prohibitions, and then a separate class of enforcers administer those prohibitions. In a limited sense, U.S. copyright law hews to this scheme. Legislation such as the No Electronic Theft Act of 1997 and the Artists’ Rights and Theft Prevention Act of 2005 has assigned the federal government an increasing role in defining intellectual-property …