Law Commons^™

Copyright And The Perfect Curve, Julie E. Cohen

Vanderbilt Law Review

Everyone agrees that the purpose of the copyright system is to promote progress.' At the same time, though, skepticism about the law's ability to define the substance of progress runs deep within copyright case law and theory. Legal decisionmakers and scholars have quite properly doubted their own ability to evaluate artistic or literary merit, and have worried that efforts to do so would result in an inappropriately elitist and conservative standard. In addition, there is room for substantial debate about whether the metaphor of forward motion leaves out other important measures of what "progress" is or might be. This agnosticism …

Taking The Protection-Access Tradeoff Seriously, Harvey S. Perlman

Vanderbilt Law Review

Law and economics scholarship has contributed much to our understanding of both the nature of intellectual property rights generally and the features of individual intellectual property regimes. Indeed it is hard to imagine a field other than antitrust law that is so explicitly governed by economic thinking. In authorizing the copyright and patent systems, Article I, Section 8 of the United States Constitution expressly incorporates a social welfare imperative as the basis for its grant of power.' Certainly economists and economically oriented legal academics have given the field the attention it is due.

I am far from being a sophisticated …

Market Hierarchy And Copyright In Our System Of Free Expression, Neil W. Netanel

Vanderbilt Law Review

If trends of the past two decades persist, a vast inequality of wealth may well become a fundamental, defining characteristic of political and social life in many Western democracies, particularly the United States.' Among its potentially pernicious effects, massive wealth disparity threatens the integrity of the democratic process. Liberal democracy aspires to political equality, which demands that opportunities to acquire and assert political power be widespread and broadly distributed. Political equality does not require economic equality. But political equality may be undermined by severe disparities of wealth. Absent preventive regulation, private wealth buys political power. It enables those with greater …

Lessons From Studying The International Economics Of Intellectual Property Rights, Keith E. Maskus

Vanderbilt Law Review

When the Uruguay Round negotiations began in 1986, the subject of intellectual property rights ("IPRs") was completely unfamiliar to international trade economists. Presumably the area was ignored because global trade policy concerns had not moved into questions of domestic business regulation. Even today, readers will search in vain for serious treatments of the trade implications of exclusive rights to intellectual property ("IP") in international economics textbooks.

Despite this general inattention, a small but growing literature has emerged in which trade economists have framed specific questions and applied theory and statistical analysis to them. This literature has advanced the understanding of …

Strategic Disclosure In The Patent System, Douglas Lichtman, Scott Baker, Kate Kraus

Vanderbilt Law Review

Patent applications are evaluated in light of the prior art. What this means is that patent examiners evaluate a claimed invention by comparing it with what in a rough sense corresponds to the set of ideas and inventions already known to the public. This is done for three reasons. First, the comparison helps to ensure that patents issue only in cases where an inventor has made a non-trivial contribution to the public's store of knowledge. Second, it protects a possible reliance interest on the part of the public since, once an invention is widely known, members of the public might …

Games Economists Play, Rochelle C. Dreyfuss

Vanderbilt Law Review

When Professor Reichman called me about this symposium, I was intrigued. With the successive introduction of the photocopy machine, the videotape, computerization, digitization, the Internet, as well as a host of biotechnological discoveries, the problems facing the creative industries have changed dramatically. This accumulation of developments has altered the economic foundations on which intellectual property law is based and has pushed those of us in the field into a period of reconceptualization in which economic analysis is particularly fruitful. Thus, I was quite taken with the idea of bringing intellectual property and economics scholars together to promulgate a research agenda …

Of Green Tulips And Legal Kudzu: Repacking Rights In Subpatentable Innovation, J. H. Reichman

Vanderbilt Law Review

How to enable entrepreneurs to appropriate the fruits of their investments in cumulative and sequential innovation' without impeding follow-on innovation and without creating barriers to en- try has become one of the great unsolved puzzles that the law and economics of intellectual property rights needs to address as the new millennium gets underway. This Article draws briefly from my earlier works to identify some of the key historical difficulties en- countered in protecting small grain-sized innovations that do not rise to the level of "novel and nonobvious inventions" or "original and creative works of authorship." It then re-examines these difficulties …

Analyze This: A Law And Economics Agenda For The Patent System, Rebecca S. Eisenberg

Vanderbilt Law Review

Patent law as a field of academic study has benefited enormously from the attention of economists. Indeed, law professors are relative newcomers to the academic patent field, trickling in behind the economists in small but growing numbers as patent law evolves from an arcane, practitioner-taught specialty to a less marginal role in law school curriculums.' Yet considering the prominence of economists in academic discourse about the patent system, they have had relatively little impact on patent law and policy. One reason for this disparity between the role of economists in the academy and in policy arenas may be the indeterminacy …

The Pharmaceutical Industry And World Intellectual Property Standards, F. M. Scherer

Vanderbilt Law Review

When I was a high school student during the late 1940s, the first so-called "wonder drugs"-initially penicillin and then the broad-spectrum antibiotics such as tetracycline-were entering the U.S. market. From their profitable experience developing the broad- spectrum antibiotics, the leading pharmaceutical companies of America and Europe acquired a strong research orientation that led to a cascade of new therapeutic entities, including additional anti-infectives, vaccines, diuretics, and then other agents to reduce heart attack risks, tranquilizers, antidepressants, birth control pills, anti-fungal agents, immuno suppressants, corticosteroids, AIDS inhibitors, powerful pain relief agents, and many other agents effective against specific diseases. Thanks to …

Copyright And Democracy: A Cautionary Note, Christopher S. Yoo

Vanderbilt Law Review

Democratic theories of copyright have become quite the rage in recent years. A growing number of commentators have offered their views on the relationship between copyright law and the process of self-governance.' No scholar has been more committed to developing this perspective than Neil Netanel. In an important series of articles, Netanel has pursued a powerful and innovative project that attempts to reexamine copyright through the lens of democratic theory. His core concern is that the concentration of private wealth and power in communications and mass media is creating unprecedented disparities in the ability to be heard. The "speech hierarchy" …

Comment On "Lessons From Studying The International Economics Of Intellectual Property Rights", Paul Goldstein

Vanderbilt Law Review

Copyright is the "dog that didn't bark" in Keith Maskus's paper, "Lessons from Studying the International Economics of Intellectual Property Rights." Like virtually every other economic study of intellectual property and trade, the Maskus paper confines its examples and analysis to the industrial side of intellectual property-mainly patents and know-how-and leaves the authorial side-copyright-untouched. As a small step toward repairing this imbalance, and toward opening a corner of policy inquiry that has so far been largely unexamined, I would like here to make a few observations on copyright and trade in developing economies.

The regular omission of copyright from economic …

Cruel, Mean, Or Lavish? Economic Analysis, Price Discrimination And Digital Intellectual Property, James Boyle

Vanderbilt Law Review

It is not because of the few thousand francs which would have to be spent to put a roof over the third-class carriages or to upholster the third-class seats that some company or other has open carriages with wooden benches .... What the company is trying to do is to prevent the passengers who can pay the second-class fare from travelling third class; it hits the poor, not because it wants to hurt them, but to frighten the rich .... And it is again for the same reason that the companies, having proved almost cruel to third-class passengers and mean …

Patent Policy Innovations: A Clinical Examination, Josh Lerner

Vanderbilt Law Review

On the domestic front, the dispute has centered on the question of whether the United States should honor commitments made in bi- lateral agreements with Japan to remove idiosyncratic features of its patent system. In particular, legislation to require the publication of pending patent applications and to grant awards to the party that is first to file for an award (as are the practices in most nations) have been fiercely debated in the past few congressional sessions. In the developing nations, the requirements for minimal levels of patent protection in the Uruguay Round of the General Agreement on Tariff and …

Intellectual Property Rights And The New Institutional Economics, Robert P. Merges

Vanderbilt Law Review

When someone speaks of "the law and economics of intellectual property rights" (IPRs), an image along the lines of the following diagram is apt to come to mind: Wilson Sonsini Goodrich & Rosati Professor of Intellectual Property Law, U.C. Berkeley (Boalt Hall) School of Law. For helpful comments, the author wishes to thank members of the Vanderbilt Law School Conference, "Taking Stock: The Law and Economics of Intellectual Property Rights," April, 2000. The usual disclaimer applies.

This is the basic illustration of monopoly price and output, familiar from introductory microeconomic texts. It is often used to explain the effects of …

Shaping Competition On The Internet: Who Owns Product And Pricing Information?, Maureen A. O'Rourke

Vanderbilt Law Review

Historically, markets have almost always fallen short of satisfying the conditions for and providing consumers with the benefits of perfect competition. Certain characteristics of electronic markets, however, enhance the possibility that e-commerce will be conducted in an environment that comes closer to attaining the perfectly competitive ideal than that of most conventional markets. Essentially, technology analogous to that which users already employ to search the Internet can also enable this retailing revolution by allowing consumers easily to obtain comparative product and pricing information. However, for a number of reasons, on-line merchants (e-tailers), are asserting a variety of legal claims that, …

The Ftc As Internet Privacy Norm Entrepreneur, Steven Hetcher

Vanderbilt Law Review

This symposium explores the economic approach to intellectual property law. This Article concerns a particular type of intellectual good-personal data. Personal data is an increasingly important topic because of its connection to the issue of Internet privacy, which has recently taken center stage in the public policy arena.

Boiled down to its core, the Internet privacy debate is a debate about who should control personal data-Internet users (data subjects) or websites. The scope of website data collection practices is expanding dramatically, due in large part to technological advances such as cookies, Web-crawlers, and Web-cams. If Internet users are unable to …

Who's Patenting What? An Empirical Exploration Of Patent Prosecution, John R. Allison, Mark A. Lemley

Vanderbilt Law Review

Patents are big business. Individuals and companies are obtaining far more patents today than ever before. Some simple calculations make it clear that companies are spending over $5 billion a year obtaining patents in the U.S.- to say nothing of the costs of obtaining patents elsewhere, and of licensing and enforcing the patents. There are a number of reasons why patenting is on the rise; primary among them are a booming economy and a shift away from manufacturing and capital-intensive industries towards companies with primarily intellectual assets. But whatever the reason, it is evident that many companies consider patents important. …

Elementary And Persistent Errors In The Economic Analysis Of Intellectual Property, Edmund W. Kitch

Vanderbilt Law Review

The literature on the economic analysis of intellectual property rights evidences a broad scholarly consensus on a number of central and important issues. First, intellectual property rights en- able economic actors to capture some of the benefits of the investment they make in establishing a good reputation, creating expressive works, and inventing new and improved technology. Absent intellectual property rights, copiers are free to take for themselves a significant part of the economic benefit generated by these types of investment and to undermine the incentive to make these in- vestments in the first place. Second, the investment activities induced by …

An Unhurried View Of Private Ordering In Information Transactions, Yochai Benkler

Vanderbilt Law Review

We stand at an unprecedented moment in the history of exclusive private rights in information ("EPRIs").' Technology has made it possible, it seems, to eliminate to a large extent one aspect of what makes information a public good-its nonexcludability. A series of laws-most explicitly the Digital Millennium Copyright Act ("DMCA") and the Uniform Computers Information Transactions Act ("UCITA")-are building on new technologies for controlling individual uses of information goods to facilitate a perfect enclosure of the information environment.

The purpose of this Essay is to explain why economic justifications interposed in favor of this aspect of the enclosure movement are, …

Lessons From Studying The International Economics Of Intellectual Property Rights

Vanderbilt Law Review

When the Uruguay Round negotiations began in 1986, the subject of intellectual property rights ("IPRs") was completely unfamiliar to international trade economists. Presumably the area was ignored because global trade policy concerns had not moved into questions of domestic business regulation. Even today, readers will search in vain for serious treatments of the trade implications of exclusive rights to intellectual property ("IP") in international economics textbooks.

Despite this general inattention, a small but growing literature has emerged in which trade economists have framed specific questions and applied theory and statistical analysis to them. This literature has advanced the understanding of …

Timing And Delegation: A Reply, Jonathan R. Siegel

Vanderbilt Law Review

For two authors who come to such different conclusions, Professor Manning and I agree on a good deal. We agree that courts, in considering whether to consult legislative history in the course of statutory construction, must take heed of the special constitutional rule against congressional self-aggrandizement.' Thus, we agree that the Constitution forbids courts to give authoritative weight to post-enactment legislative history, because the effect of such a judicial practice is to permit Congress to delegate a very important power, the power to elaborate the meaning of statutes, to its committees or Members. We also agree, however, that Congress may, …

Feds 200, Indians ): The Burden Of Proof In The Federal / Indian Fiduciary Relationship, Eugenia A. Phipps

Vanderbilt Law Review

"Great nations, like great men, should keep their word."' Justice Black, in his dissent in Federal Power Commission v. Tuscarora Indian Nation, encapsulated the failures of two centuries of the United States' relationship with its native Indians. Since establishing the first tentative treaties of the Revolutionary era, the United States has made many broad promises to the Indians. These promises, detailed first in treaties and later in statutes, drew the government and the Indians into a fiduciary relationship. Although this relationship would have consequences for federal/Indian interactions, raising the level of care with which the government would treat its native …

The Use Of Legislative History In A System Of Separated Powers, Putting Legislative History To A Vote: A Response To Professor Siegel, Timing And Delegation: A Reply, Jonathan R. Siegel

Vanderbilt Law Review

The debate over the legitimacy of judicial use of legislative history has significant legal and political ramifications that have long sparked controversy. As additional commentators join this long-running engagement, the focus of the debate necessarily changes.

In a previous article, John Manning argued that the use of legislative history violates the constitutional rule barring congressional self-delegation. Jonathan Siegel argues here that judicial reliance on legislative history does not implicate that rule, because a statute's legislative history already exists at the time of the statute's passage, and statutory incorporation of preexisting materials operates as an adoption of those materials, not as …

Putting Legislative History To A Vote: A Response To Professor Siegel, John F. Manning

Vanderbilt Law Review

In a previous article, I argued that, properly understood, textualism implements a special form of the nondelegation doctrine, one that prohibits legislative self-delegation.' If the judiciary accepts certain types of legislative history (committee reports and sponsors' statements) as "authoritative" evidence of legislative in- tent in cases of ambiguity, then the particular legislators who write that history (the committees and sponsors) effectively settle statutory meaning for Congress as a whole. Against the background of such a judicially fashioned interpretive practice, when Congress passes a vague or ambiguous statute, it thereby implicitly delegates its law-elaboration authority to legislative agents, who effectively fashion …

Enlarging The Administrative Polity: Administrative Law And The Changing Definition Of Pluralism, 1945-1970, Reuel E. Schiller

Vanderbilt Law Review

"The availability of judicial review," wrote Louis Jaffe in 1965, "is the necessary condition, psychologically, if not logically, of a system of administrative power which purports to be legitimate, or legally valid." In so writing, Jaffe suggested that the abstract beliefs that Americans have about the way government is supposed to work define the relationship between courts and the administrative state. It does not follow, logically, from the existence of administrative agencies that their actions must be policed by courts. In- stead, our beliefs about how public policy ought to be made and about which institutions are best at protecting …

No Harm, No Fraud: The Invalidity Of State Fraud Claims Brought Against Employment Testers, Robert T. Roos

Vanderbilt Law Review

In the summer of 1995, two female African-American students at Northwestern University began their summer jobs as part of the Legal Assistance Foundation of Chicago's ("LAFC") employment discrimination testing project.' The women, Kyra Kyles and Lolita Pierce, were hired as employment "testers" for the project, where they were to gather data about Chicago-area employers by taking part in the application process for numerous potential jobs. As part of the testing process, the project manager paired Kyles and Pierce with two white female LAFC employees, forming a pair of interviewing teams that each consisted of one African-American tester and one white …

The Use Of Legislative History In A System Of Separated Powers, Jonathan R. Siegel

Vanderbilt Law Review

Legislative history is the ultimate bugaboo of the textualists-those judges and scholars who assert that in statutory interpretation, "[w]e do not inquire what the legislature meant; we ask only what the statute means." The textualists have unleashed argument after argument against legislative history. Textualists assert that judicial use of legislative history seeks a collective legislative intent that does not exist and that would not be law if it did exist. They claim that congressional committees deliberately manipulate legislative history in order to influence statutory interpretation. They argue that legislative history is more ambiguous than the statutes it supposedly clarifies, that …

Timing And Delegation: A Reply, Jonathan R. Siegel

Vanderbilt Law Review

For two authors who come to such different conclusions, Professor Manning and I agree on a good deal. We agree that courts, in considering whether to consult legislative history in the course of statutory construction, must take heed of the special constitutional rule against congressional self-aggrandizement.' Thus, we agree that the Constitution forbids courts to give authoritative weight to post-enactment legislative history, because the effect of such a judicial practice is to permit Congress to delegate a very important power, the power to elaborate the meaning of statutes, to its committees or Members. We also agree, however, that Congress may, …

Protecting Health Information Privacy: The Case For Self-Regulation Of Electronically Held Medical Records, Catherine L. Glenn

Vanderbilt Law Review

Advances in technology have given new life to debates concerning privacy.' Specifically, issues surrounding increased access to personal medical records have recently garnered attention. On one side of the debate, healthcare providers and insurers support expanded access to medical records for treatment, research, and insurance claims purposes. At the same time, however, many patients legitimately expect their medical records to remain private. The advent of Internet access to patient records and electronic medical insurance claims submissions has heightened patients' concerns that computerized medical records will offer less protection and more potential for unauthorized disclosure than paper files in locked cabinets. …

Opting Out Of Regulation: A Public Choice Analysis Of Contractual Choice Of Law, Erin A. O'Hara

Vanderbilt Law Review

This Article uses public choice theory to analyze the function of choice-of-law clauses in contracts. Choice-of-law clauses are now quite common and are increasingly enforced, especially with the proliferation of international and Internet transactions. Because these clauses can be used by parties to avoid regulation, academics are now vigorously debating the extent to which this contractual opt out should be permitted. The Article presents a positive political theory of the interplay of legislative action and the enforcement of choice of law. It demonstrates that the important normative debate over choice of law is somewhat misguided because both sides fail to …