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Full-Text Articles in Intellectual Property Law
Existential Copyright And Professional Photography, Jessica Silbey, Eva Subotnik, Peter Dicola
Existential Copyright And Professional Photography, Jessica Silbey, Eva Subotnik, Peter Dicola
Faculty Scholarship
Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual …
Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey
Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey
Faculty Scholarship
This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. …
The Fair Use Doctrine: Markets, Market Failure And Rights Of Use, Wendy J. Gordon
The Fair Use Doctrine: Markets, Market Failure And Rights Of Use, Wendy J. Gordon
Faculty Scholarship
Markets are most acceptable when they serve efficiency and other goals. It is only under transaction-costless conditions of perfect knowledge, flawless and cost-free enforcement, full monetization, and instantaneous ability to organize and negotiate, that markets are guaranteed to generate efficient outcomes. And even then, markets could fall short as social tools, because goals other than allocative efficiency may fail to be met.
Patent Variation: Discerning Diversity Among Patent Functions, Jessica Silbey
Patent Variation: Discerning Diversity Among Patent Functions, Jessica Silbey
Faculty Scholarship
This Article describes and analyzes qualitative interview data collected over a five-year period. The goal of the interviews was to explore the roles of intellectual property (“IP”) in IP rich fields. Interviews were with diverse actors in a wide-range of industries: film, book publishing, visual arts, internet commerce, biology, engineering, chemistry, computer science. The data described and analyzed in this Article focuses on the specific question about the diverse functioning of patents in the subset of interviewees who are scientists and engineers, their lawyers and business partners. The Article proceeds in two parts. Part I describes the empirical dimension of …
On The Economics Of Copyright, Restitution And 'Fair Use': Systemic Versus Case-By-Case Responses To Market Failure, Wendy J. Gordon
On The Economics Of Copyright, Restitution And 'Fair Use': Systemic Versus Case-By-Case Responses To Market Failure, Wendy J. Gordon
Faculty Scholarship
The 'public goods' characteristics possess by intangible works of authorship and invention present the basic market failure problem usually relied on to justify intellectual property rights. What is ordinarily less emphasized is that such market failure is no more than half of the prerequisite for an economically desirable copyright or patent system: another requisite condition is that there be less costly market imperfections after intellectual property is instituted than there would have been in the absence of the intellectual property regime. Intellectual property rights are best justified in the presence of "asymmetric market conditions", that is where (1) in the …
Notes On "Natural Property Rights" In Products Of The Mind: Lock And Contemporary Controversies In Intellectual Property - 1985, Wendy J. Gordon
Notes On "Natural Property Rights" In Products Of The Mind: Lock And Contemporary Controversies In Intellectual Property - 1985, Wendy J. Gordon
Scholarship Chronologically
No abstract provided.
Notes On Natural Rights Of Intellectual Property - 1985, Wendy J. Gordon
Notes On Natural Rights Of Intellectual Property - 1985, Wendy J. Gordon
Scholarship Chronologically
In many areas courts are giving new intellectual property rights for reasons they largely leave unarticulated. Noncopyrightable stock averages are being protected by state law. Merchandising emblems and symbols are being protected in non-trademark contexts by trademark law. The right of publicity has expanded to such an extent that judges and commentators al iKe bewail the imminent dangers to the First Amendment caused by the imprecision of the new right’s boundaries. Even in federal copyright law, which explicitly says that facts and ideas should be free of protection, and where inadvertent copying is supposed to be as actionable as intentional …
Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors, Wendy J. Gordon
Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors, Wendy J. Gordon
Faculty Scholarship
In the recent and much publicized Universal City Studios, Inc. v. Sony Corp. of America (Betamax) case, the Court of Appeals for the Ninth Circuit held that persons who make videotapes of copyrighted television programs in the privacy of their homes should be considered to be copyright infringers. Basic to the court's reasoning was a misunderstanding of the "fair use" doctrine. Called "the most troublesome [doctrine] in the whole law of copyright," "fair use" renders noninfringing certain uses of copyrighted material that might technically violate the statute, but which do not violate the statute's basic purposes.