Law Commons^™

Technical Standards Meet Administrative Law: A Teaching Guide On Incorporation By Reference, Emily S. Bremer

Journal Articles

When an agency incorporates by reference, it promulgates a rule that identifies—but does not reprint—material already published elsewhere. The incorporated materials thus become binding law without actually being printed in the agency's regulations. Sometimes the incorporated materials are privately developed technical standards, which are often copyrighted and available only for a fee. This restriction on access undermines transparency and public participation in the rulemaking process. Finding a solution is challenging because the problem is multidimensional, implicating public policy in the areas of administrative law, federal standards law and policy, and copyright.

This teaching guide is part of module that offers …

Comparative Analysis Of Innovation Failures And Institutions In Context, Mark Mckenna

Journal Articles

Many different legal and non-legal institutions govern and therefore shape knowledge production. It is tempting, given the various types of knowledge, knowledge producers, and systems with and within which knowledge and knowledge producers and users interact, to look for reductionist shortcuts — in general but especially in the context of comparative institutional analysis. The temptation should be resisted for it leads to either what Harold Demsetz called the Nirvana Fallacy or what Elinor Ostrom critiqued as myopic allegories.

We suggest that comparative institutional analysis must be accompanied by comparative failure analysis, by which we mean rigorous and contextual comparative analysis …

Claiming Design, Mark Mckenna

Journal Articles

Design stands out among intellectual property subject matter in terms of the extent of overlapping protection available. Different forms of intellectual property usually protect different aspects of a product. In the design context, however, precisely the same features are often subject to design patent, trademark, and copyright protection-and parties commonly claim more than one of those forms. Yet, as we show, the claiming regimes of these three forms of design protection differ in significant ways: the timing of claims; claim format (particularly whether the claims are visual or verbal); the multiplicity of claims (whether and how one can make multiple …

Trademarks And Digital Goods, Mark Mckenna, Lucas S. Osborn

Journal Articles

Technology increasingly allows for digital distribution of goods that once might once have been offered in physical form, radically separating the design and production processes. That separation has potentially destabilizing consequences for trademark law, which overwhelmingly has been oriented toward indications of the origin of physical goods. For one thing, digitization brings much more of trademark law into contact with the Supreme Court's Dastar decision, raising difficult questions about whether, and under what circumstances, digital files count as “goods” for Lanham Act purposes. More broadly, a world of increasing digitization implicates concerns about the boundaries of trademark law vis-à-vis other …

What's In, And What's Out: How Ip's Boundary Rules Shape Innovation, Mark Mckenna, Christopher J. Sprigman

Journal Articles

Intellectual property law sorts subject matter into a variety of different regimes, each with different terms of protection and different rules of protectability, infringement, and defenses. For that sorting to be effective, IP needs principles to distinguish the subject matter of each system. This paper focuses on one of the most important aspects of border-drawing that our IP system undertakes — identifying “useful” subject matter.

This aspect is critical because our IP system gives utility patent law pride of place and draws the boundaries of the other doctrines in large part to respect utility patent’s supremacy. Yet IP law’s sense …

Fixing Copyright In Three Impossible Steps: Review Of How To Fix Copyright By William Patry, Mark Mckenna

Journal Articles

This review of William Patry’s How to Fix Copyright highlights three of Patry's themes. First is Patry’s insistence that copyright policy be based on real-world evidence, a suggestion that should be uncontroversial but instead runs headlong into the near-religious commitments of copyright stakeholders. Second is Patry’s emphasis on the difference between the interests of creators, on the one hand, and owners of copyright interests, on the other. Third, and finally, is Patry’s focus on the copyright system’s strong tendency to entrench business models and resist change, particularly in the face of new technology.

Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer

Journal Articles

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no law...abridging the freedom of speech or of the press," thus at least nominally indicating that limitations on the reproduction …

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Journal Articles

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

Refusals To Deal With Competitors By Owners Of Patents And Copyrights: Reflections On The Image Technical And Xerox Decisions, Joseph P. Bauer

Journal Articles

Under the patent and copyright laws, the owner of a patent for an invention or of a copyright for a work has the right to sell, license or transfer it, to exploit it individually and exclusively, or even to decide to withhold it from the public. By contrast, under the antitrust laws, a unilateral refusal to deal may constitute an element of a violation of Section 2 of the Sherman Act, and the courts may then impose a duty on the violator to deal with others, including possibly with its actual or would-be competitors.

The central question addressed by this …

Defending Cyberproperty, Patricia L. Bellia

Journal Articles

This Article explores how the law should treat legal claims by owners of Internet-connected computer systems to enjoin unwanted uses of their systems. Over the last few years, this question has become increasingly urgent and controversial, as system owners have sought protection from unsolicited commercial e-mail and from robots that extract data from Web servers for competitive purposes. In the late 1990s and early 2000s, courts utilizing a wide range of legal doctrines upheld claims by network resource owners to prevent unwanted access to their computer networks. The vast weight of legal scholarship has voiced strong opposition to these cyberproperty …

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Journal Articles

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their sub-additive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased …

The Copyrightability Of Nonliteral Elements Of Computer Programs, Julian Velasco

Journal Articles

The goal of copyright law is "[t]o promote the Progress of Science and Useful Arts." It is premised on the assumption that "encourag[ing] . . . individual effort by personal gain is the best way to advance public welfare through the talents of authors . . ." In order to "promote progress," however, copyright law must respond to changes in technology.

One issue that has been problematic for the courts is whether and to what extent the nonliteral elements of computer programs are copyrightable. Nonliteral elements are aspects of the computer program other than the written code itself. Although it …