Law Commons^™

Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell

Faculty Scholarship

We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” …

Additional Comments On Preliminary Draft 9, Jane C. Ginsburg

Faculty Scholarship

I am adding to the comments submitted by Profs. Balganesh, Menell and myself a list of points in PD9 that I believe require correction or clarification. These comments do not include Chapters 8, 10 or 11.

Comments On Council Draft 7 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

CD7 adopts several of the suggestions in my comments on PD8; I appreciate those modifications. CD7 does not, however, respond to a number of other criticisms and suggestions regarding PD8. For the benefit of the Council, I reprise the suggestions that I consider to be most significant to ensuring the accuracy of the draft (page and line references have been changed to reflect CD7)

Patently Risky: Framing, Innovation And Entrepreneurial Preferences, Elizabeth Hoffman, David L. Schwartz, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

An emerging common wisdom holds that courts have made it “too hard” to obtain patent protection in critical industries. The origin of this criticism dates back at least as far as the United States Supreme Court’s 2012 landmark opinion in Mayo Collaborative Services v. Prometheus Laboratories, Inc. which (the argument goes) triggered a chain reaction of judicial opinions rendering patent rights progressively more difficult to secure. Two years later, the Supreme Court decided Alice Corp. v. CLS Bank, another opinion widely viewed as restricting patent rights. And, barely three years after Mayo, the Federal Circuit cited it in …

Cross-Subsidies: Government's Hidden Pocketbook, John Brooks, Brian Galle, Brendan S. Maher

Faculty Scholarship

Governments can use regulation to pay for public goods out of the pockets of consumers, rather than taxpayers. For example, the Affordable Care Act underwrites care for women and the infirm through higher insurance premium payments by healthy men. Building on a classic article from Richard Posner, we show that these “cross-subsidies” between consumers are a common feature of modern law, ranging from telecommunications to intellectual property to employee benefits.

Critics of the ACA, and even some of its supporters, argue that taxes would be a better choice. Taxes are said to be more transparent, and to fit better with …

All Your Works Are Belong To Us: New Frontiers For The Derivative Work Right In Video Games, J. Remy Green

Faculty Scholarship

In copyright law, the author of an original work has the exclusive right to prepare further works derivative of that original. Video game developers’ works are protected by the Copyright Act. As video games take advantage of more advanced technology, however, players are doing more creative, interesting, and original things when they play games. Certain things players do create independent economic value and are the kinds of acts of original authorship our copyright system is designed to encourage. However, since the author of the video game is entitled to the full panoply of rights under the laws of the American …

Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to …

Revising Racial Patents In An Era Of Precision Medicine, Jonathan Kahn

Faculty Scholarship

In 2006, I published an article examining the rising use of racial categories in biomedical patents in the aftermath of the successful completion of the Human Genome Project and the production of the first draft of a complete human genome. Ten years on, it now seems time to revisit the issue and consider it in light of the current era of “Precision Medicine” so prominently promoted by President Obama in his 2015 State of the Union address where he announced a $215 million proposal for the Precision Medicine Initiative as “a bold new research effort to revolutionize how we improve …

Heuristic Interventions In The Study Of Intellectual Property, Jessica Silbey

Faculty Scholarship

In this Essay, I review and elaborate on Dan's Burk's On the Sociology of Patenting with three "heuristic interventions" for the study of intellectual property law. These interventions derive from sociology and anthropology, and to some extent also from critical literary theory. Unoriginal in the social sciences, these heuristic interventions remain largely original to the study of law within law schools and traditional legal scholarship (as opposed to the study of law from within the social sciences and humanities). Burk joins a small but growing group of legal scholars, reaching beyond legal doctrinal analysis and the economic analysis of law …

Extended Collective Licenses In International Treaty Perspective: Issues And Statutory Implementation, Jane C. Ginsburg

Faculty Scholarship

National legislation establishing extended collective licenses (ECLs) “authoriz[es] a collective organization to license all works within a category, such as literary works, for particular, limited uses, regardless of whether copyright owners belong to the organization or not. The collective then negotiates agreements with user groups, and the terms of those agreements are binding upon all copyright owners by operation of law.” Albeit authorized under national laws, collective coverage of non-members’ works may pose issues of compatibility with international norms. For example, if non-members must opt-out in order to preserve the individual management of their rights, is the opt-out a “formality” …

Intellectual Property, Asian Philosophy And The Yin-Yang School, Peter K. Yu

Faculty Scholarship

As an introduction to a special issue on intellectual property philosophy, this article focuses on insights from Asian thought. Such a focus is needed not only to provide balance within this special issue, which includes articles focusing primarily on Western philosophy, but also to highlight the compatibility between Asian philosophy and the notion of intellectual property rights. More importantly, this article aims to demonstrate that Asian philosophy may suggest new ways to address the ongoing and highly complex intellectual property challenges confronting emerging economies and the digital environment.

This article begins by providing a brief discussion of the many different …

Resolving Conflicts Between Green Technology Transfer And Intellectual Property Law, Robert V. Percival, Alan Miller

Faculty Scholarship

This paper examines claims that intellectual property law, which is designed to create incentives for innovation, actually may inhibit the transfer to developing countries of green energy innovations. Although the paper cannot find significant examples of green energy technologies whose diffusion has been hindered by existing intellectual property protections, it explores strategies, such as compulsory licensing schemes, for responding to such problems if and when they arise in the future. The paper concludes that intellectual property law need not be an obstacle to a global transformation toward a green energy infrastructure that can promote economic development while advancing new levels …

Using Patents To Protect Traditional Knowledge, Jay Erstling

Faculty Scholarship

The role that intellectual property can play in the protection of traditional knowledge (TK) has been on the international agenda for more than ten years, with little to show for it. For example, the World Intellectual Property Organization (WIPO) has provided a forum for international policy debate on the subject since 1998, and the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has held meetings on draft provisions for the protection of TK against misappropriation and misuse since 2001. Similarly, since 1999 the World Trade Organization (WTO) has been examining the most effective means …

Death From The Public Domain?, Kevin Outterson

Faculty Scholarship

In his recent article in the Texas Law Review, Ben Roin advances the claim that pharmaceutical innovation and the public’s health are harmed by the doctrines of non-obviousness and novelty. He does not mince words, labeling the nonobvious requirement as “perversity” with a “pernicious” effect on drug development. In his view, these standards pose an insurmountable barrier for drug companies seeking to commercialize inventions already in the public domain. He claims that valuable, life-saving drug ideas languish in the public domain because the companies face high barriers to entry from the FDA, but potential free riders are encouraged through the …

A Technological Theory Of The Arms Race, Lee B. Kovarsky

Faculty Scholarship

Although the 'technological arms race' has recently emerged as a vogue-ish piece of legal terminology, scholarship has quite conspicuously failed to explore the phenomenon systematically. What are 'technological' arms races? Why do they happen? Does the recent spike in scholarly attention actually reflect their novelty? Are they always inefficient? How do they differ from military ones? What role can legal institutions play in slowing them down? In this Article I seek to answer these questions. I argue that copyright enforcement and self-help represent substitutable tactics for regulating access to expressive assets, and that the efficacy of each tactic depends on …

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 …

On Commodifying Intangibles, Wendy J. Gordon, Sam Postbrief

Faculty Scholarship

It was made clear long ago that property and value are different things. Value exists. It is a fact. It can arise from law, and much of law aims at creating more value in the world. But value can also arise in spite of law (consider, for example, the fortunes that bootleggers made during the Roaring Twenties), or in law's interstices. When a particular value arises despite a lack of explicit legal protection, its possessors often ask courts or legislatures to give them a legal entitlement to preserve and further exploit that value. Typically the holders demand (1) a liberty …

Language Of The Law: The Special Role And Trademarks, Trade Names, And Other Trade Emblems., John T. Cross

Faculty Scholarship

In 1979, the United States Supreme Court decided Friedman v. Rogers, a case involving a First Amendment challenge to a Texas statute that prohibited optometrists from practicing under an assumed trade name. Although an important case, Friedman certainly is not one of the major milestones of First Amendment jurisprudence. Prior Supreme Court decisions established that although commercial speech is protected by the First Amendment, government may regulate speech to prevent deception or confusion. Because a majority in Friedman found a possibility of deception, the Court held that Texas could constitutionally prohibit the use of a trade name. Friedman becomes much …