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Intellectual Property Law Commons™

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Boston University School of Law

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Articles 301 - 330 of 362

Full-Text Articles in Intellectual Property Law

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 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

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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 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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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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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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Notes On Conceptions Of Property: Scientific And Ordinary - 1989, Wendy J. Gordon Jan 1989

Notes On Conceptions Of Property: Scientific And Ordinary - 1989, Wendy J. Gordon

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There's a lot that won't neatly fit in my LocKe article that needs to be said. The following, re ordinary and scientific theories of property, go in the Conception of Prop Article, for which there still seems a need.

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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 Materials For Arfuller - 1986, Wendy J. Gordon Jun 1986

Note On Materials For Arfuller - 1986, Wendy J. Gordon

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1/18/86 draft of "Towards a Unified Theory"

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Note On General Conclusion - 1986, Wendy J. Gordon Jun 1986

Note On General Conclusion - 1986, Wendy J. Gordon

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The burden of the first part of this paper has been to suggest that tort law provides us no self-justifying notion of "wrongs" by which we can allocate rights and duties. The burden of the second part of this paper has been to suggest that contract law's notion of "consent" is similarly unable to provide justification for any particular system of rights. How would one go about constructing a theory by which to evaluate whether a given property system could be justified? A full answer to that question is surely outside the scope of this paper, but some basic points …

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Note On Re Article On Definition Of Tort/Property - 1986, Wendy J. Gordon May 1986

Note On Re Article On Definition Of Tort/Property - 1986, Wendy J. Gordon

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Some distinctions in the law are fairly clear. For example, we seem to think that bad actions deserve to be punished, actions which are not personally blameworthy should not be punished, and that injuries to innocent persons should be compensated. But there are many instances in which these two goals cannot be simultaneously served. There we partially separate them, placing each in its own primary area of law. For those instances in which a bad action occurs and no one is injured, the criminal law has a remedy (the law of attempts). For those instances in which an innocent party …

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

Note On The Four Faces Of The "Sharing Benefits" Issue With Handwritten - 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 world in intellectual property unification theory. But I will have at lest set the terms for debate so we can finally speak clearly to each other, articulate the issues, see their implications.

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Outline Of Green Bound - 1985, Wendy J. Gordon Nov 1985

Outline Of Green Bound - 1985, Wendy J. Gordon

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No abstract provided.

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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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Notes On "Natural Property Rights" In Products Of The Mind: Lock And Contemporary Controversies In Intellectual Property - 1985, Wendy J. Gordon Aug 1985

Notes On "Natural Property Rights" In Products Of The Mind: Lock And Contemporary Controversies In Intellectual Property - 1985, Wendy J. Gordon

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No abstract provided.

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Notes On Natural Rights Of Intellectual Property - 1985, Wendy J. Gordon Aug 1985

Notes On Natural Rights Of Intellectual Property - 1985, Wendy J. Gordon

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In many areas courts are giving new intellectual property rights for reasons they largely leave unarticulated. Noncopyrightable stock averages are being protected by state law. Merchandising emblems and symbols are being protected in non-trademark contexts by trademark law. The right of publicity has expanded to such an extent that judges and commentators al iKe bewail the imminent dangers to the First Amendment caused by the imprecision of the new right’s boundaries. Even in federal copyright law, which explicitly says that facts and ideas should be free of protection, and where inadvertent copying is supposed to be as actionable as intentional …

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Notes On Entitlement Systems - 1985, Wendy J. Gordon Jun 1985

Notes On Entitlement Systems - 1985, Wendy J. Gordon

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If one does harm without a privilege in our system, one pays. Our tort system suggests there is a general entitlement to the status quo, enforceable only against certain actors.

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Conversation With Lee Bollinger - 1985, Wendy J. Gordon May 1985

Conversation With Lee Bollinger - 1985, Wendy J. Gordon

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First, Lee Bollinger (and others) seem to feel that the misappropriation "urge" makes sense when seen against a background where most things one creates DO get property treatment. Lee therefore says it's my burden as a writer to explain why this area is different--both to succeed in making a case clear, AND to create barriers between this area and others. Essentially, he argues, people will be afraid that less-than-complete property here will erode property elsewhere.

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An Inquiry Into The Merits Of Copyright - Notes On Property Parallels, Dukeminier/Krier Book, Among Other Things - 1985, Wendy J. Gordon Jan 1985

An Inquiry Into The Merits Of Copyright - Notes On Property Parallels, Dukeminier/Krier Book, Among Other Things - 1985, Wendy J. Gordon

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These are notes re thoughts sparked by reading Dukeminier & Krier, PROPERTY (little Brown 1981) and their TEACHERS MANUAL FOR PROPERTY (Little Brown 1981). What I may be doing is beginning a unified i/p. One part of that doctrine may be parallel ordinary Property, like so: HYPOTHESIS - The role played in ordinary property law by "possession" [,1] may be played in i/p law by "use. This can be very important.

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Notes On Forms Of Discourse - 1985, Wendy J. Gordon Jan 1985

Notes On Forms Of Discourse - 1985, Wendy J. Gordon

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Is there anything which can explain the seeming schizophrenia between the courts favoring creators and users? Part of the explanation may lie in “forms of disclosure”: the cognate areas to which attention is directed. Once in the copyright area, you’re in an area where “policy rather than property” governs, and where limitations on rights are as crucial as the rights themselves.

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Outline Of New Organization - 1985, Wendy J. Gordon Jan 1985

Outline Of New Organization - 1985, Wendy J. Gordon

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No abstract provided.

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Notes On Value And Property - 1985, Wendy J. Gordon Jan 1985

Notes On Value And Property - 1985, Wendy J. Gordon

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My contention is that “value” should not be the basis for legal protection unless (a) there’s social as well as private value invoked and (b) the legal protection is necessary for the generation of, or protection of, the social value.

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Notes On Value - 1985, Wendy J. Gordon Jan 1985

Notes On Value - 1985, Wendy J. Gordon

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The relation between value and property is very much at the core of this paper. First, as a theoretical matter (Holmes; the Ordinary Observer; custom and interactive pattern.) Second, intellectual products have increased greatly in value, shown both by statistics [3] and also by that unfortunate but fairly reliable secondary indicator of a phenomenon’s social importance: the volume of litigation concerning it.

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Conversation With Whit Gray - 1985, Wendy J. Gordon Jan 1985

Conversation With Whit Gray - 1985, Wendy J. Gordon

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Whit Gray argued that even for things most of us would feel comfy saying AREN'T property, like the "idea" of shopping malls, we wouldn't feel so comfy with copying if the blueprints for the idea were copied prior to the time they became public. He argues also, that something more than "privacy" is at issue in our anger at visualizing such an intrusive prepublication copying.

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