Intellectual Property Law Commons^™

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

Working Paper Series

Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. Historically, this uniformity may have been justified in light of the relative homogeneity of market conditions applicable to protected subject matter, such as books or mechanical inventions. Technological progress since the founding has led to considerable growth in the range of inventions and expressive works to which patent and copyright law apply, respectively. 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 Positive Externalities Approach To Copyright Law: Theory And Application, Jeffrey L. Harrison

UF Law Faculty Publications

The basic goal of copyright law is, at a general level, fairly well understood, yet the law itself seems untethered to any consistent analytical approach designed to achieve that goal. This Article has two goals. The first is to explain in some detail what copyright law might look like if it reflected economic reasoning. The second is to put to the test the question of whether copyright law is as far out of sync with economic guidelines as White-Smith Music and Eldred suggest.

In order to understand the economic approach and the inconsistency of copyright law, as well as the …

The Pull Of Patents, Brett M. Frischmann

ExpressO

The conventional view of the role of patents in the university research context (and more generally) is that patent-enabled exclusivity improves the supply-side functioning of markets for university research results (and inventions more generally) as well as those markets further downstream for derivative commercial end-products. The reward, prospect, and commercialization theories of patent law take patent-enabled exclusivity as the relevant means for fixing a supply-side problem—the undersupply of private investment in the production of patentable subject matter or in the development and commercialization of patentable subject matter that would occur in the absence of patent-enabled exclusivity. Put another way, patents …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

An Analysis Of The Duties And Obligations Of The International Legal Community To The Eradication Of Poverty And Growth Of Sustainable Development In Light Of The Jus Cogens Nature Of The Declaration Of The Right To Development, Freda R. Murray-Bruce

ExpressO

This paper examines the copious problem of world poverty affecting half of the world’s population in the South and assesses the international legal obligations of the international legal community, viz., developed states, transnational corporations and the international financial institutions of the IMF, World Bank and WTO to the eradication of poverty and the growth of sustainable development, in view of the inviolability and peremptory nature of the Charter of the UN, and the international human rights provisions arising therefrom. To this extent, we examine the 1986 General Assembly Declaration on the Right to Development, along with the other International Bill …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

ExpressO

No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale

Faculty Scholarship

The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal.

In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …

An Economic Theory Of Infrastructure And Commons Management, Brett M. Frischmann

ExpressO

In this article, Professor Frischmann combines a number of current debates across many disciplinary lines, all of which examine from different perspectives whether certain resources should be managed through a regime of private property or through a regime of open access. Frischmann develops and applies a theory that demonstrates there are strong economic arguments for managing and sustaining openly accessible infrastructure. The approach he takes differs from conventional analyses in that he focuses extensively on demand-side considerations and fully explores how infrastructure resources generate value for consumers and society. As a result, the theory brings into focus the social value …

An Economic Analysis Of The Private And Social Costs Of The Provision Of Cybersecurity And Other Public Security Goods, Bruce H. Kobayashi

George Mason University School of Law Working Papers Series

This paper examines the incentives of private actors to invest in cybersecurity. Prior analyses have examined investments in security goods, such as locks or safes that have the characteristics of private goods. The analysis in this paper extends this analysis to examine expenditures on security goods, such as information, that have the characteristics of public goods. In contrast to the private goods case, where individual uncoordinated security expenditures can lead to an overproduction of security, the public goods case can result in the underproduction of security expenditures, and incentives to free ride. Thus, the formation of collective organizations may be …

Why "Bad" Patents Survive In The Market And How Should We Change?--The Private And Social Costs Of Patents, Jay P. Kesan

ExpressO

In this paper, we formally demonstrate that incorrectly issued patents can survive in the market without judicial review, even when the invention is neither novel nor non-obvious. We support this contention by presenting a game theoretic model that studies the interaction between the patentee and an alleged infringer/challenger. Using this model, we demonstrate the impact of the transaction costs in the patent system at the administrative stage in the Patent Office and at the enforcement stage in the courts, and highlight the inability in our current system to mount effective challenges to improperly granted patents in the current system. We …

Copyright Law And Digital Millennium Copyright Act, Neda Ballard Panula

Honors Capstones

Capstone submitted as a graduation requirement for the BSU Honors Program.

Seventeen Famous Economists Weigh In On Copyright: The Role Of Theory, Empirics, And Network Effects, Stan Liebowitz, Stephen Margolis

ExpressO

The case of Eldred v. Ashcroft, which sought to have the Copyright Term Extension Act (CTEA, aka Sonny Bono Copyright Act) declared unconstitutional, was recently decided by the Supreme Court. A remarkable group of seventeen economists including five Noble laureates, representing a wide spectrum of opinion in economics, submitted an amicus curie brief in support of Eldred. The economists condemned CTEA on the grounds that the revenues earned during the extension are so heavily discounted that they have almost no value, while the extended protection of aged works creates immediate monopoly deadweight losses and increases the costs of creating new …

Virtual Markets For Virtual Goods: The Mirror Image Of Digital Copyright?, Peter D. Eckersley

ExpressO

The Internet and Copyright Law are particularly ill-suited to each other. One is designed to give as much information as possible to everyone who wants it; the other allows authors, artists and publishers to earn money by restricting the distribution of works made out of information. The beneficiaries of copyright law are lobbying for the re-design of computers and the Internet to instate "content control" and "digital rights management" (DRM). These technologies are intended to make copyright workable again by re-imposing limits on access to information goods, but they carry high direct and indirect social costs.

One alternative, which has …

The Market For Private Dispute Resolution Services--An Empirical Re-Assessment Of Icann-Udrp Performance, Jay P. Kesan, Andres A. Gallo

ExpressO

The impressive growth of the Internet in the 1990s and the boom of the e-economy generated a competition for domain names in the most coveted of the top level domain names, i.e., the .com space. The other original generic top-level domain names (gTLDs) open to commercial use, .org, and .net, were also in demand from businesses. Other types of top-level domain names, especially the country code TLDs (ccTLDs), were of little commercial value, and their registrations were not as important as the gTLDs.

In 1997, partly because of the expansion of the Internet to the international sphere, the U.S. government …

Can A Bankrupt Company Assign Its Patent License To The Highest Bidder, Even When The License Itself Forbids Assignment? Why Everex Systems, Inc. V. Cadtrak Corp. Gives An Unconvincing Answer, Matthew D. Siegel

ExpressO

A patent licensee that declares bankruptcy will often want to assign its rights under the license to another party in exchange for much-needed cash. The Bankruptcy Code generally allows debtors to assign executory contracts, including patent licenses, in this way. Indeed, the Code permits debtors to assign a contract even if the contract itself contains a “no-assign” clause, i.e., a clause expressly forbidding assignment. But there is an exception: The Code will defer to certain kinds of otherwise applicable non-bankruptcy law that would normally prevent the contract from being assigned. In particular, the Code will not allow assignment by a …

Media Policy Out Of The Box: Content Abundance, Attention Scarcity, And The Failures Of Digital Markets, Ellen P. Goodman

ExpressO

No abstract provided.

Modern Bootlegging And The Prohibition On Fair Prices: Last Call For The Repeal Of Pharmaceutical Price Gouging, Luke W. Cleland

ExpressO

This article discusses the recent passage of the Medicare Prescription Drug, Modernization and Improvement Act of 2003, and the executive and judicial decisions affecting the ability of the general public to access foreign pharmaceutical markets. The article examines the recent actions taken by the U.S. government, explore various state movements within the United States aimed at reducing pharmaceutical drug prices, outline the process of pharmaceutical drug prices in foreign countries, and advocate for a workable integration of all available mechanisms to feasibly reduce prescription drug prices for the benefit of both U.S. consumers and U.S. drug companies. As avenues to …

The Jekyll And Hyde Story Of International Trade: The Supreme Court In Phrma V. Walsh And The Trips Agreement, Srividhya Ragavan

University of Richmond Law Review

No abstract provided.

Bucking The Trend: The Unsupportability Of Index Providers' Imposition Of Licensing Fees For Unlisted Trading Of Exchange Traded Funds, Peter N. Hall

Vanderbilt Law Review

Exchange traded funds (ETFs) are popular investment products that have recently generated substantial investment press, several new regulations, huge earnings for the securities markets, and potential legal conflicts that will likely lead to major litigation. ETFs are derivative securities that represent ownership in funds, unit investment trusts, or depositary receipts with portfolios of securities designed to track the performance and dividends of specific securities indices.' ETFs track indices by holding a representative sampling of securities in the index, thus approximating investment results of the index as a whole. They may or may not hold all the stocks in a particular …

Treaty Governance, Intellectual Property And Biodiversity, John Linarelli

Scholarly Works

When resources become valuable, various social and institutional pressures come to bear to enclose them in a property rights regime. Given the substantial progress of biotechnology and the life sciences, genetic resources found in biological diversity are experiencing such pressures. The question of how much commodification or commercialization of genetic resources is appropriate is of global concern; it affects the distribution of wealth in and among societies and countries. This article explores the emerging treaty law on intellectual property and biodiversity. It inquires What is biodiversity? and Why is biodiversity preservation important? It then focuses on the United Nations Framework …

Random Walks, Non-Cooperation Games, And The Complex Mathematics Of Patent Pricing, F. Russell Denton, Paul J. Heald

Scholarly Works

Current patent valuation methods have been described charitably as “inappropriate,” “crude,” “inherently unreliable,” and a “guesstimate.” This article provides a more rational and systematic tool than any we have found in the existing literature or relevant case law. We believe our approach to patent valuation will be useful in improving investment decisions, in facilitating licensing negotiations, and in reducing error costs in litigation. An improved valuation metric also promises to make patents easier to take as collateral and to reduce the amount of “Blue Sky” in mergers and acquisitions involving high tech corporations. To the extent that valuation problems have …

The Internet, Innovation, And Intellectual Property Policy, Philip J. Weiser

Publications

The Internet continues to transform the information industries and challenge intellectual property law to develop a competition policy strategy to regulate networked products. In particular, inventors of "information platforms" that support the viewing of content-be they instant messaging systems, media players, or Web browsers-face a muddled set of legal doctrines that govern the scope of available intellectual property protection. This uncertainty reflects a fundamental debate about what conditions will best facilitate innovation in the information industries--a debate most often played out at the conceptual extremes between the "commons" and "proprietary control" approaches to the Internet and intellectual property policy.

This …

Paradigm Shifts And Access Controls: An Economic Analysis Of The Anticircumvention Provisions Of The Digital Millennium Copyright Act, Melissa A. Kern

University of Michigan Journal of Law Reform

This Note addresses the broadened scope of protection granted to copyright holders under the anticircumvention provisions of the Digital Millennium Copyright Act of 1998 (DMCA). This broadened scope extends to copyright holders the right to control access to their works, diminishing the consumer's 'fair use" of those works that previously served as a defense to alleged copyright infringements. While access controls are supported by economists who believe they are useful in correcting market inefficiencies and excluding free riders, this Note suggests that access controls cannot correct all market inefficiencies. Furthermore, such access controls deny access and use of copyrighted material …

Knowledge, Legitimacy, Efficiency And The Institutionalization Of Dispute Settlement Procedures At The World Trade Organization And The World Intellectual Property Organization, Michael P. Ryan

Northwestern Journal of International Law & Business

International legal research regarding international economic dispute settlement tends to be a-theoretical. A theoretically-grounded analytic framework is employed in this article which draws from scholarship from political science, sociology, and economics regarding institutions and international governmental organizations. The knowledge-legitimacy-efficiency analytic framework is applied in this article to studies of General Agreement on Tariffs and Trade (GA TT)/World Trade Organization (WTO) dispute settlement in order to relate this relevant scholarship to the economic field under primary study, Internet domain names. GA TT/WTO knowledge regarding international trade law has thickened through multi-lateral trade negotiations and dispute settlement decisions. The WTO's legitimacy is …

Trade-Related Aspects Of Intellectual Property Rights And Biotechnology: European Aspects, John Linarelli

Scholarly Works

There does not seem to be a widely held view among WTO members of the proper role and scope of TRIPS. One of the main reasons why TRIPS is controversial is because it allocates rights in innovation, some would say beyond the bounds of what a trade agreement should seek to do. The lines of the debate are often conceptualized in terms of 'developing' versus 'developed' country differences. One of the major areas of disagreement is how TRIPS deals with rights in biotechnology. Some developing countries are relatively rich in biodiversity and traditional knowledge but poor in capital and scientific …

Internet Television And Copyright Licensing: Balancing Cents And Sensibility, Michael A. Einhorn

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Miss Scarlett's License Done Gone!: Parody, Satire, And Markets, Michael A. Einhorn

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Replaying The Betamax Case For The New Digital Vcrs: Introducing Tivo To Fair Use, Matthew W. Bower

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Journal Articles

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their sub-additive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased …

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 …