Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 3 of 3
Full-Text Articles in Law
The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan
The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan
Faculty Scholarship
When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to …
Bullying And Opportunism In Trademark And Right-Of-Publicity Law, Stacey Dogan
Bullying And Opportunism In Trademark And Right-Of-Publicity Law, Stacey Dogan
Faculty Scholarship
Lawyers, scholars, and even Congress have lately expressed concern about so-called “trademark bullies” — trademark holders that assert tenuous legal claims against vulnerable defendants, who often capitulate rather than incurring the expense and uncertainty of litigation. At the same time, we’ve witnessed right-of-publicity claims for acts that never would have raised an eyebrow a few decades ago. Complaints about bullying and overreaching are largely anecdotal rather than empirical, so it’s hard to gauge the extent of the behavior and to measure its costs. But the fact that it has attracted so much attention suggests a perception, at least, that some …
Fairer Uses, Jessica Silbey
Fairer Uses, Jessica Silbey
Faculty Scholarship
A response to Professor Joseph Liu’s paper on Fair Use, Notice Failure, and the Limits of Copyright as Property, this essay challenges Professor Liu to go even farther in his analysis and protection of the everyday audience of copyright works. In describing and analyzing what I term “fairer uses” on the basis of qualitative data from interviews of artists and authors who make and rely on copyrighted works for their own creativity and professional well-being, I support Professor Liu’s advocacy for maintaining “fuzzy boundaries” of fair use. Based on evidence from grounded practice of professional creators, their expansive application …