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The Study Of Intellectual Property At The William S. Boyd School Of Law, Mary Lafrance

Scholarly Works

This article discusses the intellectual property program at William S. Boyd School of Law.

The Secret Life Of Legal Doctrine: The Divergent Evolution Of Secondary Liability In Trademark And Copyright Law, Mark Bartholomew, John Tehranian

Journal Articles

The recent explosion in intellectual property litigation has witnessed increasing recourse to secondary liability theories. The courts have responded favorably to plaintiffs by enunciating substantial reinterpretations of extant principles, thereby precipitating a veritable secondary liability revolution. Numerous commentators have bemoaned this trend, contending that judicial recasting of liability rules expands intellectual property rights beyond their intended scope, thereby resulting in an overprotective regime that stifles innovation. Yet one of the most striking aspects of the secondary liability revolution has been all but ignored in the literature: While the courts have broadened the scope of secondary liability principles with respect to …

January 1, 2003: The Birth Of The Unpublished Public Domain And Its International Implications, Elizabeth Townsend-Gard

Faculty Articles

On January 1, 2003, a small, quiet historic transformation took place throughout the United States: unpublished works in mass came into the public domain for the first time. Section 302 of the 1976 Copyright Act created a unified system of duration, whereby unpublished and published works carry a term of life of the author plus seventy years. In order to aid with a transition from a state common law perpetual system to a "limited Times" federal statutory system, the 1976 Copyright Act built two mechanisms for change in the form of Section 303(a). First, Section 303(a) guarantees that no work …

Intellectual Property And The Development Divide, Margaret Chon

Faculty Articles

This article attempts to map the challenges raised by recent encounters between intellectual property and development. It proposes a normative principle of global intellectual property - one that is responsive to development paradigms that have moved far beyond simple utilitarian measures of social welfare. Recent insights from the field of development economics suggest strongly that intellectual property should include a substantive equality principle, measuring its welfare-generating outcomes not only by economic growth but also by distributional effects. A new principle of substantive equality is a necessary corollary to the formal equality principles of national treatment and minimum standards that are …

Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson

Faculty Scholarship

On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors' rights and the advent of new technologies, particularly in relation to peer-to-peer networks.

In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular …

Open Access In Law Teaching: A New Approach To Legal Education, Matthew T. Bodie

All Faculty Scholarship

The "open access" movement seeks to change our approach to the distribution of scholarship in the fields of science, medicine, the social sciences, and law. This Essay argues for the application of these principles to legal education itself. Open access would mean greater flexibility, interaction, and innovation in the creation of course materials. It would lead to new teaching methods and new forms of feedback between student and professor. Open access centers on particular legal subject areas could facilitate national and international collaboration. Ultimately, the open access law school would ameliorate the growing standardization and commodification of legal education by …

Why We Are Confused About The Trademark Dilution Law, Christine Farley

Articles in Law Reviews & Other Academic Journals

In the decade following passage of a federal right of anti-dilution, the biggest question in trademark law was how to prove dilution. This is a clear sign of something. Can no smart attorney, judge, or social scientist figure out what dilution is in order to prove it? Dilution has proven to be a "dauntingly elusive concept" for the courts. Even in the Supreme Court, nearly all of the questions from the Justices In oral argument in Moseley v. V. Secret Catalog were seeking to simply understand what dilution is.Unless they simply know it when they see it, other courts either …

Patents And Business Models For Software Firms, John R. Allison, Abe Dunn, Ronald J. Mann

Faculty Scholarship

We analyze the relation between patents and the different business models available to firms in the software industry. The paper builds on Cusumano's work defining the differences among firms that sell products, those that provide services, and the hybrid firms that fall between those polar categories. Combining data from five years of Software Magazine's Software 500 with data about the patenting practices of those software firms, we analyze the relation between the share of revenues derived from product sales and the firm's patenting practices. Accounting for size, R&D intensity, and sector-specific effects, the paper finds a robust positive correlation between …

One For All: The Problem Of Uniformity Cost In Intellectual Property Law, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms.

This Article argues that reducing uniformity cost is the central problem for intellectual …

Copyright, Commodification, And Culture: Locating The Public Domain, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The relationship between increased commodification and the public domain in copyright law is the subject of considerable controversy, both political and theoretical. The paper argues that beliefs about what legal definition the public domain requires depend crucially on implicit preconceptions about what a public domain is. When considered in broader historical context, the term public domain has a specific set of denotative and connotative meanings that constitute the artistic, intellectual, and informational public domain as a geographically separate place, portions of which are presumptively eligible for privatization. This idea meshes well with the current push toward commodification in copyright. The …

Commercializing Open Source Software: Do Property Rights Still Matter?, Ronald J. Mann

Faculty Scholarship

For several years now, open source software products have been gaining prominence and market share. Yet the products themselves are not as provocative as the way in which they are developed and distributed. Two related features of the open source model are distinctive: the use of collaborative development structures that extend beyond the boundaries of a single firm, and the lack of reliance on intellectual property ("IP") rights as a means of appropriating the value of the underlying technologies. Firm-level control of intellectual property is replaced by a complex set of relations, both informal and sometimes contractual, among strategic partners …

The Copyright Paradox, Tim Wu

Faculty Scholarship

Copyright law has become an important part of American industrial policy. Its rules are felt by every industry that touches information, and today that means quite a bit. Like other types of industrial policy, copyright in operation purposely advantages some sectors and disadvantages others. Consequently, today's copyright courts face hard problems of competition management, akin to those faced by the antitrust courts and the Federal Communications Commission.

How should courts manage competition using copyright? Over the last decade, writers have begun to try to understand the "other side" of copyright, variously called its innovation policy, communications policy, or regulatory side.Here …

Intellectual Property, Innovation, And Decentralized Decisions, Tim Wu

Faculty Scholarship

In 1945, Fredrick Hayek described the problem of economic development as "a problem of the utilization of knowledge not given to anyone in its totality." Hayek's insight has unexpected relevance for what has emerged as the central question in modern intellectual property and related fields: When might the assignment of property rights have anti-competitive consequences? The traditional, yet central, economic answer to this question emphasizes a tradeoff between incentives created by property grants and resulting higher prices and deadweight losses. Under this model intellectual property grants are desirable to the extent that they encourage new product development at a reasonable …

'Une Chose Publique'? The Author's Domain And The Public Domain In Early British, French And Us Copyright Law, Jane C. Ginsburg

Faculty Scholarship

Much contemporary copyright rhetoric casts copyright as a derogation from a primordial public domain. Placing the public domain in the initial position buttresses attempts to contain a perceived over-expansion of copyright. I do not take issue with the normative role these endeavors assign to the public domain. The public domain is today and should remain copyright's constraining counterpart. But normative arguments that also claim the support of history may be fundamentally anachronistic. The ensuing examination of the respective domains of author and public at copyright's inception, in 18th-19th century Britain, France and America, reveals more ambiguity than today's critiques generally …