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Boston University School of Law

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Draft Of A Labor Theory Of Property - 1990, Wendy J. Gordon Aug 1990

Draft Of A Labor Theory Of Property - 1990, Wendy J. Gordon

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The Supreme Court in several recent cases has flirted with the notion that labor gives one an entitlement to ownership: a legal right to bar others from the fruits of that labor or to extract payment from them if they use the fruits without permission. Sometimes articulated in terms of "natural rights," and sometimes in terms of "fairness," this notion is at apparent odds with contract law's insistence that the only "fruits of labor" one is obligated to pay for are those one has agreed in advance to buy.

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Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship, Wendy J. Gordon Jul 1990

Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship, Wendy J. Gordon

Faculty Scholarship

For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from scholarly and case law developments in other areas. There were exceptions, of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zechariah Chafee, Jr. and Judge Learned Hand brought a wealth of learning and broad perspective to copyright. But by and large copyright looked only to itself for guidance.

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Notes On Economics Of Suppression - 1990, Wendy J. Gordon May 1990

Notes On Economics Of Suppression - 1990, Wendy J. Gordon

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The Treatise suggests that the two major strains in copyright are the economic or instrumental perspective, and the authors' rights perspective. This dual perspective parallels the configuration in property and tort law as a whole, where quandaries such as the suppression problem are sometimes analyzed in terms of whether the individual holding an entitlement is a "steward" entrusted with the resource solely for sake of the social good that is likely to result from his or her productive use of it, or a "sovereign" to be left unregulated in managing the resource.

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Proposed Organization And Detailed Table Of Contents - 1990, Wendy J. Gordon May 1990

Proposed Organization And Detailed Table Of Contents - 1990, Wendy J. Gordon

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For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from scholarly and case law developments in other areas. There were exceptions of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zcharia Chaffee Jr. and Judge Learned Hand brought a wealth of learning and a broad perspective to copyright.

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Draft Of New Versus Old Authors - 1990, Wendy J. Gordon May 1990

Draft Of New Versus Old Authors - 1990, Wendy J. Gordon

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Virtually all the issues canvassed above embody the tension that exists in seeking to honor the interests of two generations of creators. For example, the essay has discussed the need for new adaptive artists to have a copyright in their own productions and the dangers that the "subconscious copying rule" poses to new creators, particularly in an age of ubiquitous media.

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Notes On Lear V. Adkins And Kewanee: "Public Domain" And "Dissemination", Wendy J. Gordon Jan 1990

Notes On Lear V. Adkins And Kewanee: "Public Domain" And "Dissemination", Wendy J. Gordon

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What is the S ct s notion of public domain? Does dissemination play the same role I thinK it should? Here s a looK at patent pol icy. Basically, I think the following shows that the Supreme Court envisages that there s a separate policy which says that things once made public should stay public. Now d tie that to reliance & changes of position. The court doesn t think it through very well; they may have power in mind, or vesting, or just precedent. It s unclear. But it s useful for my purposes that the Court opinion suggests …

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Notes Of Reference To The Common Law, Wendy J. Gordon Jan 1990

Notes Of Reference To The Common Law, Wendy J. Gordon

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Also, when one looks at the common law, one finds throughout an attempt to protect persons who change position in reliance on other's actions from being harmed by such persons' withdrawal; similarly, the common law gives a great deal of protection from harm even when the parties have had no prior dealings.

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Draft Of Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship - 1990, Wendy J. Gordon Jan 1990

Draft Of Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship - 1990, Wendy J. Gordon

Scholarship Chronologically

For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from developments in scholarship and case law in other areas. There were exceptions, of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zechariah Chaffee, Jr. and Judge Learned Hand brought learning and broad perspective to copyright. But by and large copyright looked only to itself for guidance.

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Note On Serendipitous Legal Protections: Preemption Continued - 1989, Wendy J. Gordon Jun 1989

Note On Serendipitous Legal Protections: Preemption Continued - 1989, Wendy J. Gordon

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The First Circuit in Decosta II recognized something r-ar-ely focused on, but of great importance-- namely, the following question: assuming there are applicable federal ·al policies of non-protection, do those policies for-bid only direct state attempts to restrain copying, or- do they also for-bid any state law which has as one of its effects a restraint on copying?

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More On Indirect Protections: Piggyback Damage Claims - 1989, Wendy J. Gordon Jan 1989

More On Indirect Protections: Piggyback Damage Claims - 1989, Wendy J. Gordon

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One issue is whether indirect i/p protection should be allowed to, or encouraged to, piggyback on other forms of protection, 1 ike privacy & contract law. (This is the KEWANEE issue. It's a matter of general pol icy, and of preemption.). Another issue is whether, within federal i/p law, a cause of action based on limited statutory infringement should be handled any differently because other damage damage which wouldn't be actionable alone under the relevant federal statute - is present. (This is raised by the NATION issue. It's a matter of legislative intent & general policy,) Although both issues involve …

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An Inquiry Into The Merits Of Copyright: The Challenges Of Consistency, Consent And Encouragement Theory, Wendy J. Gordon Jan 1989

An Inquiry Into The Merits Of Copyright: The Challenges Of Consistency, Consent And Encouragement Theory, Wendy J. Gordon

Faculty Scholarship

Hostility to copyright has a long and honorable history. In the nineteenth century, for example, Lord Macaulay argued that while copyright might be necessary to ensure a "supply of good books," the monopoly that it imposed was at best a necessary evil.

"For the sake of the good we must submit to the evil; but the evil ought
not to last a day longer than is necessary for the purpose of securing the good."

A number of studies critical of intellectual property followed in our century. The most well known is probably the economically oriented 1970 study by Stephen Breyer …

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Note On The Desert Theory Paper - 1986, Wendy J. Gordon Nov 1986

Note On The Desert Theory Paper - 1986, Wendy J. Gordon

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The desert theory paper may be recast under the title: “The Misappropriation Explosion: Desert Theory in Intellectual Property Law” or “Desert Theory Misapplied.”

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Letter To Bruce Ackerman, Wendy J. Gordon Sep 1986

Letter To Bruce Ackerman, Wendy J. Gordon

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I shall be heading back to Rutgers for classes shortly, and I'm sending you a draft of the "Copyright and Copy-privilege" piece in the hope of receiving some additional comments before I enter into the final "polishing" stages later this month. As you know from my last note, the suggestions you made have proved extremely useful -- the title is the least of it. Among other things, your suggestions for reorganization led, indirectly, to a way of unifying the piece on copyright and contract with another piece I've been working on, regarding copyright and tort. I'm very pleased with the …

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Letter To Professor Bruce Ackerman, Wendy J. Gordon Aug 1986

Letter To Professor Bruce Ackerman, Wendy J. Gordon

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As I said in my last note, your suggestions for the "Copyright and Copy-privilege" paper have proven extremely valuable. (The title is the least of it.) The reorganization you suggested has allowed the paper to blossom, and I'm extremely pleased with the results.

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Note On The Four Faces Of The "Sharing Benefits" Issue - 1985, Wendy J. Gordon Dec 1985

Note On The Four Faces Of The "Sharing Benefits" Issue - 1985, Wendy J. Gordon

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Any overall theory must first be capable of describing what it seeks to theorize about. This article will now do that. In giving a taxonomy, the article may be making its greatest contribution. Lockean theory will hardly be the last word in i/p unification theory. But I will have at least set the terms for debate so we can finally speak clearly to each other, articulate the issues, see their implications.

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Draft Of Desert Theory - 1985, Wendy J. Gordon Aug 1985

Draft Of Desert Theory - 1985, Wendy J. Gordon

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The first condition of Lockean theory is that property applies only to labor which appropriates something out of the common. Similarly, possession theory in American law applies only to appropriations of things which are unclaimed. While an intellectual product might seem to be drawn out of the ether, it can in fact be a difficult question whether its producers have drawn on more than commonly-owned resources.

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Note On The Three Faces Of The "Sharing Benefits" Issue - 1985, Wendy J. Gordon Jan 1985

Note On The Three Faces Of The "Sharing Benefits" Issue - 1985, Wendy J. Gordon

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The legal treatment of the sharing-benefits issue runs along the following Hohfeldian continuum.

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Draft Of Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors - 1982, Wendy J. Gordon Dec 1982

Draft Of Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors - 1982, Wendy J. Gordon

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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.

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Abstract Of Gift Failure Versus Market Failure - 1982, Wendy J. Gordon Jan 1982

Abstract Of Gift Failure Versus Market Failure - 1982, Wendy J. Gordon

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Gifts and gift exchanges can serve a combination of economic, personal, social, and humanitarian ends. This article explores how intellectual products are unusually capable of serving these ends through gift relations, and suggests ways in which the law can assist in this process.

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Notes Re Betamax - 1982, Wendy J. Gordon Jan 1982

Notes Re Betamax - 1982, Wendy J. Gordon

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There's a lot of misunderstanding of by BX article. Some simplifying things: There are three types of "market failure" in copyright. The first inheres in the nonexhaustibil ity of the good; barring a right to post-dissemination control against copying, goods may be underproduced because potential users will refuse to pay for access, figuring they can get access to a friend's copy later for free or at lower cost than the creator would charoe. Thus. relying only o~ the physical control which lets i creato~ charge for the "first look", will (except where the look wont' make copying possible- the trade …

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Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors, Wendy J. Gordon Jan 1982

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.

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Notes On Preemption And Misc - 1981, Wendy J. Gordon Jun 1981

Notes On Preemption And Misc - 1981, Wendy J. Gordon

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As one of my students indirectly commented (the Herzog midterm?), section 301 PURPORTS to be exclusive. "Nothing in this title shall annul state rights etc." One student, Chris Binnig, indirectly suggested a way out of the exclusivity problem, other than the common sense of Abrams, namely that 301 talks about the general scope of copyright- something which may require some policy inquiry.

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Notes On Misc Re Contract - 1981, Wendy J. Gordon Jan 1981

Notes On Misc Re Contract - 1981, Wendy J. Gordon

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Once there is a patent, voluntarily-accepted user restrictions may not be enforceable. Or, at least, an attempt on the patentee's part to condition access of certain types on obtaining such restrictions, may be impossible. See 30 BNA PTCJ 104 (5/30/85)(Restrictions voided on availability of deposited yeast strains.) Filed under Yeast case.

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Lecture Draft On Sensory Recall Device - 1980, Wendy J. Gordon Jan 1980

Lecture Draft On Sensory Recall Device - 1980, Wendy J. Gordon

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Perception is a bodily function. The brain “sees” according to the orders which the optic nerve relays from its position at the back of the eye. Similarly, it is the brain which also "hears." As we know from our dreaming and our remembering, neither eye nor ear is indispensable to having the sensations of seeing and hearing.

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