Evidence Commons^™

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension (With P. Heald), Christopher J. Buccafusco

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The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality. While a low quality recording seems to lower a listener's valuation of …

Making Sense Of Intellectual Property Law, Christopher J. Buccafusco

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Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extent the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested …

Valuing Attribution And Publication In Intellectual Property (With C. Sprigman And Z. Burns), Christopher J. Buccafusco

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This is the third in a series of articles focusing on the experimental economics of intellectual property. In earlier work, we have experimentally studied the ways in which creators assign monetary value to the things that they create. That research has suggested that creators are subject to a systematic bias that leads them to overvalue their work. This bias, which we have called the 'creativity effect,' potentially results in inefficient markets in IP, because creators may be unwilling to license their works for rational amounts.

Our prior research, however, like American IP law itself, focused exclusively on the monetary value …

Well-Being Analysis Vs. Cost-Benefit Analysis (With J. Bronsteen & J. Masur) (Symposium), Christopher J. Buccafusco

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Cost-benefit analysis is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates systemic errors so large as to deprive the tool of value. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from the field of hedonic psychology …

Retribution And The Experience Of Punishment, Christopher J. Buccafusco, J. Bronsteen, J. Masur

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In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does …

Valuing Intellectual Property: An Experiment, Christopher J. Buccafusco, C. Sprigman

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In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions. …

Welfare As Happiness (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

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Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article …

Reasonable Grounds Evidence Involving Sexual Violence In Darfur (With J. Hagan & R. Brooks), Todd Haugh

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No abstract provided.

Happiness And Punishment (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

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This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by …

Hedonic Adaptation And The Settlement Of Civil Lawsuits (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

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This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater …

On The Legal Consequences Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco

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The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for …

Text, Context And The Problem With Rape, Katharine K. Baker

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No abstract provided.

Obscured Visions: Policy, Power, And Discretion In Transnational Discovery, David J. Gerber

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This Essay addresses issues involving the discovery of information located outside the United States. Specifically, it deals with some of the problems created by the lack of appropriate limits on United States discovery procedures. Professor Gerber first analyzes the extent of judicial discretion in the United States in matters concerning extraterritorial discovery. The analysis encompasses the underlying legal bases for the exercise of discretion as well as the political and institutional factors that influence the uses of discretion.

Next, the Essay focuses on the international consequences of the virtually unlimited discretion courts in the United States exercise in discovery matter. …

International Discovery After Aerospatiale: The Quest For An Analytical Framework, David J. Gerber

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No abstract provided.

Extraterritorial Discovery And The Conflict Of Procedural Systems: Germany And The United States, David J. Gerber

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No abstract provided.

Evidence: Making The Record, Margaret G. Stewart

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No abstract provided.