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Full-Text Articles in Law
Excuse And Justification In The Law Of Fair Use: Transaction Costs Have Always Been Only Part Of The Story, Wendy J. Gordon
Excuse And Justification In The Law Of Fair Use: Transaction Costs Have Always Been Only Part Of The Story, Wendy J. Gordon
Faculty Scholarship
In American copyright law, the doctrine of "fair use" has long been problematic. Every plausible litmus test that might simplify the "fair use" inquiry has proven inadequate, and copyright commentators have long sought an algorithm or heuristic to lend predictability and conceptual coherence to the doctrine. Twenty years ago, I published in this Journal an article entitled Fair Use as Market Failure, which suggested that the key to understanding the protean terms of "fair use" could best be found in the notion of market failure. That 1982 article has been often misapplied, by both courts and commentators. I am …
A Brief History Of Author-Publisher Relations And The Outlook For The 21st Century, Maureen A. O'Rourke
A Brief History Of Author-Publisher Relations And The Outlook For The 21st Century, Maureen A. O'Rourke
Faculty Scholarship
The Fiftieth Anniversary Edition of the Journal of the Copyright Society of the U.S.A. provides a particularly appropriate forum in which to discuss the current state of the copyright system. By some accounts, U.S. copyright law has been fabulously successful, encouraging the growth of industries whose copyrighted products both enrich American culture and contribute significant value to the economy.
Copyright As Tort Law's Mirror Image: 'Harms', 'Benefits', And The Uses And Limits Of Analogy, Wendy J. Gordon
Copyright As Tort Law's Mirror Image: 'Harms', 'Benefits', And The Uses And Limits Of Analogy, Wendy J. Gordon
Faculty Scholarship
This pair of papers involves a reprinting of "Of Harms and Benefits: Torts, Restitution, and Intellectual Property," 21 J. LEGAL STUDIES 449 (1992), along with an introduction to that article for students, entitled "Copyright as Tort's Mirror Image". Both involve comparisons between statutory intellectual property law and common law doctrines.
"Copyright as Tort's Mirror" uses personal injury law to introduce students to copyright, making a link between the doctrines through the notion of "externalities". Just as tort law discourages wastefully harmful behavior by making perpetrators bear some of the costs inflicted, copyright law encourages beneficial behavior by enabling authors to …
Intellectual Property Law, Wendy J. Gordon
Intellectual Property Law, Wendy J. Gordon
Faculty Scholarship
This chapter for the OXFORD HANDBOOK ON LEGAL STUDIES provides an overview of the theoretical literature in Intellectual Property, and suggests directions for further study. The emphasis is on economic analysis, but effort is made to embrace other perspectives as well.
Controlling Opportunistic And Anti-Competitive Intellectual Property Litigation, Michael J. Meurer
Controlling Opportunistic And Anti-Competitive Intellectual Property Litigation, Michael J. Meurer
Faculty Scholarship
It is useful to think of intellectual property (IP) law both as a system of property rights that promotes the production of valuable information and as a system of government regulation that unintentionally promotes socially harmful rent-seeking. This Article analyzes methods of controlling rent-seeking costs associated with opportunistic and anti-competitive IP lawsuits. My thinking is guided to some extent by the analysis of procedural measures for controlling frivolous litigation, and analysis of antitrust reforms designed to control strategic abuse of antitrust law. These analogies lead me to focus on pre-trial and post-trial control measures that reduce the credibility of weak …