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Full-Text Articles in Law

Intellectual Property And Competition, Herbert J. Hovenkamp Aug 2017

Intellectual Property And Competition, Herbert J. Hovenkamp

Faculty Scholarship

A legal system that relies on private property rights to promote economic development must consider that profits can come from two different sources. First, both competition under constant technology and innovation promote economic growth by granting many of the returns to the successful developer. Competition and innovation both increase output, whether measured by quantity or quality. Second, however, profits can come from practices that reduce output, in some cases by reducing quantity, or in others by reducing innovation.

IP rights and competition policy were traditionally regarded as in conflict. IP rights create monopoly, which was thought to be inimical to ...


Causing Copyright, Shyamkrishna Balganesh Jan 2017

Causing Copyright, Shyamkrishna Balganesh

Faculty Scholarship

Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet, modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation in altogether extraneous considerations. This Article argues that copyright law embodies an unstated, yet distinct theory of authorial causation, which connects the element of human agency to a work ...


Copyright And Good Faith Purchasers, Shyamkrishna Balganesh Jan 2016

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

Faculty Scholarship

Good faith purchasers for value — individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality — have long obtained special protection under the common law. Despite the seller’s own actions being tainted, such purchasers obtain valid title themselves and are allowed to freely alienate the property without any restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly and in good faith purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property, or risk running afoul of ...


The Dual-Grant Theory Of Fair Use, Abraham Bell, Gideon Parchomovsky Jan 2016

The Dual-Grant Theory Of Fair Use, Abraham Bell, Gideon Parchomovsky

Faculty Scholarship

Fair use is one of modern law's most fascinating and troubling doctrines. It is amorphous and vague, and notoriously difficult to apply. It is, at the same time, vitally important in copyright and perhaps the most frequently raised and litigated issue in the law of intellectual property.

This article offers a novel theory of fair use that provides both a better understanding of the underlying principles and better tools for applying the doctrine.

In contrast with the dominant understanding of fair use in the literature — that fair use addresses market failure — the article proposes viewing fair use as a ...


Creative Copyright: Tailoring Intellectual Property Policies And Business Strategies For Creative Content Industries In The Digital Age, Bhamati Viswanathan Jan 2015

Creative Copyright: Tailoring Intellectual Property Policies And Business Strategies For Creative Content Industries In The Digital Age, Bhamati Viswanathan

SJD Dissertations

My dissertation explores intellectual property rights in three fields: fashion, music and education. I examine the varying degrees of IP rights in those fields, and ask whether the differing levels of rights are appropriate to keep these industries creative, innovative and robust. I further examine the salient characteristics of those rights and ask whether such an understanding might help to determine optimal levels of IP protection in other creative industries.


Copyright Trust, Abraham Bell, Gideon Parchomovsky Jan 2015

Copyright Trust, Abraham Bell, Gideon Parchomovsky

Faculty Scholarship

Collaborative production of expressive content accounts for an ever growing number of copyrighted works. Indeed, in the age of content sharing and peer production, collaborative efforts may have become the paradigmatic form of authorship. Surprisingly, though, copyright law continues to view the single author model as the dominant model of peer production. Copyright law’s approach to authorship is currently based on a hodgepodge of rigid doctrines that conflate ownership and control. The result is a binary system under which a contributor to a collaborative work is either recognized as an author with a full control and management rights or ...


Consumer Welfare In Competition And Intellectual Property Law, Herbert J. Hovenkamp Jan 2014

Consumer Welfare In Competition And Intellectual Property Law, Herbert J. Hovenkamp

Faculty Scholarship

Whether antitrust policy should pursue a goal of "general welfare" or "consumer welfare" has been debated for decades. The academic debate is much more varied than the case law, however, which has consistently adopted consumer welfare as a goal, almost never condemning a practice found to produce an actual output reduction or price increase simply because productive efficiency gains accruing to producers exceeded consumer losses.

While some practices such as mergers might produce greater gains in productive efficiency than losses in consumer welfare, identifying such situations would be extraordinarily difficult. First, these efficiencies would have to be "transaction specific," meaning ...


Toward A Closer Integration Of Law And Computer Science, Christopher S. Yoo Jan 2014

Toward A Closer Integration Of Law And Computer Science, Christopher S. Yoo

Faculty Scholarship

Legal issues increasingly arise in increasingly complex technological contexts. Prominent recent examples include the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), network neutrality, the increasing availability of location information, and the NSA’s surveillance program. Other emerging issues include data privacy, online video distribution, patent policy, and spectrum policy. In short, the rapid rate of technological change has increasingly shown that law and engineering can no longer remain compartmentalized into separate spheres. The logical response would be to embed the interaction between law and policy deeper into the fabric of both fields. An essential step ...


Reinventing Copyright And Patent, Abraham Bell, Gideon Parchomovsky Jan 2014

Reinventing Copyright And Patent, Abraham Bell, Gideon Parchomovsky

Faculty Scholarship

Intellectual property systems all over the world are modeled on the one-size-fits-all principle. However important or unimportant, inventions and original works of authorship receive the same scope of protection, for the same period, backed by the same variety of legal remedies. Metaphorically speaking, all intellectual property is equal under the law. This equality comes at a heavy price. The equality principle gives all creators access to the same remedies, even when those remedies create perverse incentives. Moreover, society overpays for innovation by inflicting on society more monopoly losses than are strictly necessary to incentivize production.

In this Article, we propose ...


Innovation And Competition Policy, Ch. 9 (2d Ed): The Innovation Commons, Herbert J. Hovenkamp Dec 2013

Innovation And Competition Policy, Ch. 9 (2d Ed): The Innovation Commons, Herbert J. Hovenkamp

Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA ...


Innovation And Competition Policy, Chapter 8 (2d Ed): Innovation, Ip Rights, And Anticompetitive Exclusion, Herbert J. Hovenkamp Oct 2013

Innovation And Competition Policy, Chapter 8 (2d Ed): Innovation, Ip Rights, And Anticompetitive Exclusion, Herbert J. Hovenkamp

Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses ...


Innovation And Competition Policy, Ch. 10 (2d Ed): Post-Sale And Related Distribution Restraints Involving Ip Rights, Herbert J. Hovenkamp May 2013

Innovation And Competition Policy, Ch. 10 (2d Ed): Post-Sale And Related Distribution Restraints Involving Ip Rights, Herbert J. Hovenkamp

Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA ...


Innovation And Competition Policy, Chapter 7 (2d Ed): Intellectual Property Misuse, Herbert J. Hovenkamp Apr 2013

Innovation And Competition Policy, Chapter 7 (2d Ed): Intellectual Property Misuse, Herbert J. Hovenkamp

Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA ...


Innovation And Competition Policy, Ch. 2 (2d Ed): Complementary Products And Processes - The Law Of Tying, Herbert J. Hovenkamp Apr 2013

Innovation And Competition Policy, Ch. 2 (2d Ed): Complementary Products And Processes - The Law Of Tying, Herbert J. Hovenkamp

Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA ...


Innovation And Competition Policy, Ch. 3 (2nd Ed.): Harm To Competition Or Innovation, Herbert J. Hovenkamp Apr 2013

Innovation And Competition Policy, Ch. 3 (2nd Ed.): Harm To Competition Or Innovation, Herbert J. Hovenkamp

Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA ...


Managerial Judging And Substantive Law, Tobias Barrington Wolff Jan 2013

Managerial Judging And Substantive Law, Tobias Barrington Wolff

Faculty Scholarship

The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.

In this Article, I examine the interface between substantive law and managerial judging. The ...


Innovation And Competition Policy, Ch. 5 (2d Ed): Competition And Innovation In Copyright And The Dmca, Herbert J. Hovenkamp Nov 2012

Innovation And Competition Policy, Ch. 5 (2d Ed): Competition And Innovation In Copyright And The Dmca, Herbert J. Hovenkamp

Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA ...


Innovation And Competition Policy: Statutory Supplement And Other Materials, Herbert J. Hovenkamp Jun 2012

Innovation And Competition Policy: Statutory Supplement And Other Materials, Herbert J. Hovenkamp

Faculty Scholarship

This Supplement to Cases and Materials on Innovation and Competition Policy includes the following: (1) a statutory supplement containing relevant provisions of the antitrust laws, the Patent Act, the Copyright Act, and the DMCA: (2) an annotated table of contents. Other supplemental materials, including discussion of recent decisions or other developments, will be added from time to time.

This book will be supplemented frequently as important new decisions or other developments occur. However, the author will attempt not to revise individual chapters during the course of the academic semester in order to avoid confusion in pagination or printing. Instead, supplemental ...


The Uncertain Future Of "Hot News" Misappropriation After Barclays Capital V. Theflyonthewall.Com, Shyamkrishna Balganesh Jun 2012

The Uncertain Future Of "Hot News" Misappropriation After Barclays Capital V. Theflyonthewall.Com, Shyamkrishna Balganesh

Faculty Scholarship

This is a follow-up piece to Professor Balganesh's 'Hot News': The Enduring Myth of Property in News, 111 COLUM. L. REV. 419 (2011), based on the Second Circuit's decision in Barclays Capital Inc. v. Theflyonthewall.com, 650 F.3d 876 (2d Cir. 2011).


Post-Sale Restraints And Competitive Harm: The First Sale Doctrine In Perspective, Herbert J. Hovenkamp Jan 2011

Post-Sale Restraints And Competitive Harm: The First Sale Doctrine In Perspective, Herbert J. Hovenkamp

Faculty Scholarship

A post-sale restraint is a condition or contract provision that operates after a good has been sold. In antitrust law these restraints are roughly divided into two classes, “intrabrand” and “interbrand.” An intrabrand restraint limits the way a firm can distribute the restricted property. For example, resale price maintenance controls the price at which goods can be resold. Intrabrand nonprice restraints place other types of limits, such as the places from which goods can be sold, the uses for which they can be sold, and the identity of buyers. By contrast, an interbrand restraint limits a purchaser’s right to ...


Creation Without Restraint: Promoting Liberty And Rivalry In Innovation, Christina Bohannan, Herbert J. Hovenkamp Jan 2011

Creation Without Restraint: Promoting Liberty And Rivalry In Innovation, Christina Bohannan, Herbert J. Hovenkamp

Faculty Scholarship

This document contains the table of contents, introduction, and a brief description of Christina Bohannan & Herbert Hovenkamp, Creation without Restraint: Promoting Liberty and Rivalry in Innovation (Oxford 2011).

Promoting rivalry in innovation requires a fusion of legal policies drawn from patent, copyright, and antitrust law, as well as economics and other disciplines. Creation Without Restraint looks first at the relationship between markets and innovation, noting that innovation occurs most in moderately competitive markets and that small actors are more likely to be truly creative innovators. Then we examine the problem of connected and complementary relationships, a dominant feature of high technology markets. Interconnection requirements, technological compatibility requirements, standard setting, and the relationship between durable products and aftermarkets all involve interconnection, or “tying.” Some see tying as inherently anticompetitive, while others view it as unexceptionally benign. In fact, bundling products or technologies is essential in high technology markets and most of it is socially beneficial, but possibilities of abuse nevertheless remain.

Identifying good substantive legal rules for facilitating innovation is often very difficult. Two generations ago antitrust law addressed problems of complexity by shifting the focus to harm. The courts reasoned that they could often avoid unmanageable substantive doctrine by considering whether the plaintiff had suffered the appropriate kind of injury. Plaintiffs who are injured by more rather than less competition should be denied a remedy. In the case of patent and copyright law, the appropriate question is whether an infringer’s conduct served to undermine the right holder’s incentive to innovate, with incentives measured from before the innovation occurred. Some IP infringements do no harm to the incentive to innovate; others actually make the right more rather than less valuable. In these situations relief should be denied.

Patent and copyright law are both in crisis today – major problems include overissuance, overly broad and ambiguously defined protections, and rules that permit both patentees and copyright holders to make broad claims on unforeseen innovations. The result has been that many patents are valueless, while others have very considerable value precisely because they enclose ideas or technologies that rightfully belong in the public domain. Patent law could be ...


Resale Price Maintenance: Consignment Agreements, Copyrighted Or Patented Products And The First Sale Doctrine, Herbert J. Hovenkamp Dec 2010

Resale Price Maintenance: Consignment Agreements, Copyrighted Or Patented Products And The First Sale Doctrine, Herbert J. Hovenkamp

Faculty Scholarship

The rule of reason adopted for resale price maintenance in the Supreme Court’s Leegin decision, which upset the century old Dr. Miles rule of per se illegality, requires some reconsideration of a number of issues about antitrust treatment of RPM. Under the old per se rule, bona fide “consignment” agreements were not covered by Section 1 of the Sherman Act at all because there was said to be no qualifying “agreement” between the supplier and the dealer. Rather the dealer was simply said to be acting as an agent of the seller. However, insofar as RPM produces competitive dangers ...


Ip And Antitrust: Reformation And Harm, Christina Bohannan, Herbert J. Hovenkamp Jan 2010

Ip And Antitrust: Reformation And Harm, Christina Bohannan, Herbert J. Hovenkamp

Faculty Scholarship

Antitrust and intellectual property law both seek to improve economic welfare by facilitating competition and investment in innovation. At various times both antitrust and IP law have wandered off this course and have become more driven by special interests. Today, antitrust and IP are on very different roads to reform. Antitrust reform began in the late 1970s with a series of Supreme Court decisions that linked the plaintiff’s harm and right to obtain a remedy to the competition - furthering goals of antitrust policy. Today, patent law has begun its own reform journey, but it is in a much earlier ...


Tiered Originality And The Dualism Of Copyright Incentives, Shyamkrishna Balganesh Nov 2009

Tiered Originality And The Dualism Of Copyright Incentives, Shyamkrishna Balganesh

Faculty Scholarship

Professor Balganesh responds to Gideon Parchomovsky & Alex Stein, Originality, 95 Va. L. Rev. 1505 (2009), arguing that their proposal can perhaps be accommodated under current copyright doctrine.


Foreseeability And Copyright Incentives, Shyamkrishna Balganesh Apr 2009

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors ...


Debunking Blackstonian Copyright, Shyamkrishna Balganesh Apr 2009

Debunking Blackstonian Copyright, Shyamkrishna Balganesh

Faculty Scholarship

This is a review of Neil Weinstock Netanel’s Copyright’s Paradox (2008).


Originality, Gideon Parchomovsky, Alex Stein Mar 2009

Originality, Gideon Parchomovsky, Alex Stein

Faculty Scholarship

In this Essay we introduce a model of copyright law that calibrates authors’ rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the “modicum of creativity” standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules ...


Innovation And The Domain Of Competition Policy, Herbert J. Hovenkamp Jan 2008

Innovation And The Domain Of Competition Policy, Herbert J. Hovenkamp

Faculty Scholarship

Antitrust policy and the IP laws are both concerned with practices that restrain competition unnecessarily by reducing the size of the public domain beyond that which the Constitution contemplates, or as Congress intended for them to be expanded. In fact, antitrust has a dual role as promoter of competition in IP intensive markets. It regulates both restraints on competition and restraints on innovation. The first line protector of the competitive process in innovation is the IP statutes themselves. The Constitutional Mandate to Congress to create intellectual property regimes in order to promote the Progress of Science and useful Arts is ...


Fair Use Harbors, Gideon Parchomovsky, Kevin A. Goldman Jan 2007

Fair Use Harbors, Gideon Parchomovsky, Kevin A. Goldman

Faculty Scholarship

The doctrine of fair use was originally intended to facilitate those socially optimal uses of copyrighted material that would otherwise constitute infringement. Yet the application of the law has become so unpredictable that would-be fair-users can rarely rely on the doctrine with any significant level of confidence. Moreover, the doctrine provides no defense for those seeking to make fair uses of material protected by anti-circumvention measures. As a result, artists working in media both new and old are unable to derive from copyrighted works the full value to which the public is entitled. In this Essay, we propose a solution ...


Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp Dec 2005

Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp

Faculty Scholarship

The history of IP/antitrust litigation is filled with exaggerated notions of the power conferred by IP rights and imagined threats to competition. The result is that antitrust litigation involving IP practices has seen problems where none existed. To be sure, finding the right balance between maintaining competition and creating incentives to innovate is no easy task. However, the judge in an IP/antitrust case almost never needs to do the balancing, most of which is done in the language of the IP provisions. The role of antitrust tribunals is the much more limited one of ensuring that any alleged ...