Intellectual Property Law Commons^™

The Meaningful Concept Of "Harm" - 1993, Wendy J. Gordon

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No abstract provided.

Handwritten Notes On Blackmail - 1993, Wendy J. Gordon

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No abstract provided.

Handwritten Notes On Blackmail - 1993, Wendy J. Gordon

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No abstract provided.

Notes To Commenters Of "Truth And Consequences" - 1993, Wendy J. Gordon

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No abstract provided.

A Property Right In Self-Expression: Equality And Individualism In The Natural Law Of Intellectual Property, Wendy J. Gordon

Faculty Scholarship

This Article argues that a properly conceived natural-rights theory of intellectual property would provide significant protection for free speech interests. This is more than just an academic exercise. Judges have failed to use the First Amendment to provide extensive protection for free expression in intellectual property cases, in part because they mistakenly find a warrant for strong "authors' rights" in a philosophy of natural law. Natural rights theory, however, is necessarily concerned with the rights of the public as well as with those whose labors create intellectual products. When the limitations in natural law's premises are taken seriously, natural rights …

Preface: Symposium On Intellectual Property Law Theory, Wendy J. Gordon

Faculty Scholarship

For primary contributors to this symposium we have sought out people whose thoughts on intellectual property are not well known to readers of the standard law reviews. We are very gratified by the results. Of our three philosopher contributors, none has published much explicitly discussing intellectual property before, though the work of each of them is highly relevant to the topic; our economist, who publishes most often in philosophic, economic and communications journals, here brings his various perspectives to bear; our practitioner contributor proves that the most esoteric of academic topics - postmodern literary theory - has relevance to everyday …

Aals Speech, Wendy J. Gordon

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Marshall has also said I can speak as long as I want, so scream when you've had enough.

Letter From Professor Timothy J. Brennan, Timothy J. Brennan

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Dear Wendy,

Thanks for sending me the recent pair of articles. I just had a chance to read them today while I'm getting my furnace and AC replaced. I enjoyed them very much, both for the chance to think about copyright issues and to read yet again your creative and insightful approach to them.

The most intriguing thing about the Dayton piece was the asymmetric mar- ket failure idea. (I'll come back to the prisoners' dilemma in connection with the LCP paper!) Your point that justifying copyright requires the belief that intellectual property markets won't work without copyright and that …

Blackmail And Moralisms: Victimhood And Aristotelian Pride - 1992, Wendy J. Gordon

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Of those persons who favor laws against blackmail, many take that position because of the moral nastiness of the blackmailing act ("pay me or I'll tell ...") These commentators are sometimes blind to where the self-interest of the so-called victim lies, for the victim often prefers paying for silence to having his secrets revealed. Much of the sophisticated literature on blackmail focuses on this gap in vision. Blackmail is called paradoxical because (among other things) it is a crime that a victim would often rather suffer than have discovered and prosecuted.

Blackmail And Transactional Structure - 1992, Wendy J. Gordon

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The Coase Theorem operates in a world where mistaken allocations can be cured by trade. But blackmail involves two areas where mistaken allocations are likely to be permanent: free speech and reputation.

Preliminary Notes On Blackmail Piece For University Of Pennsylvania - 1992, Wendy J. Gordon

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There are several potential insights whose interrelationship I'd like to explore. First, some allocation of rights are not likely to be transferable. Two of the major interests involved in blackmail--namely, reputation and free speech--are of this type. This may in itself help to explain some of the paradox of blackmail.

Letter To Ms. Sheddy Murphy On Paper For Cd-Rom Symposium, Wendy J. Gordon

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As you know, I am revising the piece primarily by combining it with my oral remarks. Thus I am sending you the original version of the article as you sent it to me, with corrections inked in, and I am also sending several separate typed pages (adapted from the oral remarks), with indications where they fit into the piece. The new pages have several footnotes, but in most cases the footnotes refer to sources cited in the earlier version. I can also send you photocopies of any material cited, if you wish. I hope this is not too burdensome. The …

Reality As Artifact: From Feist To Fair Use, Wendy J. Gordon

Faculty Scholarship

Lawyers more than most people should be aware that what language calls "facts" are not necessarily equivalent to things that exist in the world. After all, when in ordinary conversation someone says "it's a fact that X happened," the speaker usually means, "I believe the thing I describe has happened in the world." But when a litigator presents something as a "fact," she often means only that a good faith argument can be made on behalf of its existence. Two sets of factfinders can look at the same event and come to diametrically opposed conclusions-each of which is binding, but …

Asymmetric Market Failure And Prisoner's Dilemma In Intellectual Property, Wendy J. Gordon

Faculty Scholarship

When competitors engage in unrestrained copying of each others' intangible products, the structure can resemble a prisoner's dilemma in which free choice leads to unnecessarily low individual payoffs and low social welfare. There are many ways to avoid these low payoffs, such as contract enforcement, direct regulation of copying behavior through IP, and direct government subsidies. All of these modes alter the payoff pattern away from prisoner's dilemma.

When should lawmakers place copyright law or other IP law among the prime options to consider?

Because copyright, patent, misappropriation and the like all work through private-property markets, one key is to …

Cd-Rom Symposium Transcript One - 1992, Wendy J. Gordon

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Enclosed are the corrected pages of the transcript. The article itself will follow shortly.

Cd-Rom Symposium Transcript Two - 1992, Wendy J. Gordon

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MR. METALITZ: I think the point there is that amputation of authorship is really kind of an artifact of the registration process. You wouldn't be that concerned.

On Owning Information: Intellectual Property And The Restitutionary Impulse, Wendy J. Gordon

Faculty Scholarship

Every day someone invests time, labor, or money in creating a valuable intangible. Someone collects information, creates an idea, designs a boat hull, writes a book, or comes up with a new way to market a product that someone else developed. Judicial treatment of these and other cognate occurrences has shifted dramatically in recent years.

Draft Of Reality As Artifact: From Feist To Fair Use - 1992, Wendy J. Gordon

Scholarship Chronologically

Lawyers more than most people should be aware that what language calls "facts" are not necessarily equivalent to things that exist in the world. After all, when in ordinary conversation someone says "It's a fact that this [ X ] happened," the speaker usually means, "I believe the thing I describe has happened in the world". But when a litigator says something is a "fact" she often means only that a good faith argument can be made on behalf of its existence. Two sets of fact finders can look at the same event and come to diametrically opposed conclusions-- each …

Handwritten Notes On Of Harms And Benefits: Torts, Restitution, And Intellectual Property - 1992, Wendy J. Gordon

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Copyright and patent take the form of ordinary property. As tangible property has physical edges, intellectual property statutes create boundaries by defining the subject matters within their zone of protection. As real property owners have rights to prevent strangers from entering their land. intellectual property statutes and case law grant owners rights to exclude strangers from using the protected work in specified ways. As tangible property can be bought and sold, bequeathed and inherited, so can copyrights and patents.

Defining The Prisoners' Dilemma, Wendy J. Gordon

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Formally, a prisoner's dilemma is defined as follows: There are two participants symmetrically situated. For each player, her payoff if she refuses to cooperate with the other player is higher than her payoff would be if she cooperated, and this is true whether the other chooses to cooperate, or chooses to defect. If both cooperate, her payoff will be higher than if both defect.

Of Harms And Benefits: Torts, Restitution, And Intellectual Property, Wendy J. Gordon

Faculty Scholarship

Copyright and patent take the form of ordinary property. As tangible property has physical edges, intellectual property statutes create boundaries by defining the subject matters within their zone of protection. As real property owners have rights to prevent strangers from entering their land, intellectual property statutes and case law grant owners rights to exclude strangers from using the protected work in specified ways. As tangible property can be bought and sold, bequeathed and inherited, so can copyrights and patents.

Toward A Third Approach: Modifying The Corrective Justice Model, Wendy J. Gordon

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The conception of the judicial role described in the second model is, of course, no more than a partial account of what some judges may do sometimes. A third way to approach "reap/sow" draws on a broader conception that whatever the role played by community norms, judges also aim to achieve a result that is consistent both with their own sense of justice and with precedent. As for precedent, perhaps the frequent references to "unjust enrichment" in intellectual property cases should be taken seriously. Perhaps the courts are analogizing to that area of law most directly concerned with imposing liability …

Toward A Jurisprudence Of Benefits - Aals Tape #54 - 1991, Wendy J. Gordon

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No abstract provided.

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.

Note On Deserving To Be Born - 1990, Wendy J. Gordon

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A full reap/sow principle, one that's unsupplemented by any entitlement for need and that extends to both harms and benefits completely, would say that one is not entitled to keep ANYTHING one fails to earn. Including sunlight. Including life itself.

Note On Deserving The Results Of Labor - 1990, Wendy J. Gordon

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Munzer's formulation seems to talk in the end about largely consensual arrangements, like working for wages.

Note On Types Of Corrective Justice - 1990, Wendy J. Gordon

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One kind of inquiry is to ask: what weight does the claim to reward have? Another is to ask: what are the built-in limits or expectations (places where the claim to reward has zero weight)?

Note On Causation And Limited Duration Of Intellectual Property; Also Patent Standards - 1990, Wendy J. Gordon

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Another causation problem is this: "But for" causation is only one type. It has its own problems. But there are other kinds of cause. In tort law these other kinds of cause are lumped together under the rubric "proximate cause", and the difficulties of "proximate cause" doctrine illustrate some of the difficulties.

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.

Notes On Misc Re Paper: Property Preemption - 1990, Wendy J. Gordon

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Sears/Compco said anything not protected by patent copyright etc is not subject to state anti-copying protection. Goldstein says Sears/Compco didn't mean that exactly- rather, states can't control copying where fed statutory policies would be in conflict with the state protection. Section 102b and generations of copyright cases say ideas, systems, etc., are not copyrightable. That wd seem to suggest that even under Goldstein, ideas, etc can't be protected against state law.[1] However, a 1 iteral reading of 301 might suggest Cong decided there should be no preE of such state law protection of ideas.