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Intellectual Property Law Commons™

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Boston University School of Law

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Articles 331 - 360 of 362

Full-Text Articles in Intellectual Property Law

Notes On Property Themes/Scholarly Methodology - 1985, Wendy J. Gordon Jan 1985

Notes On Property Themes/Scholarly Methodology - 1985, Wendy J. Gordon

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When a legal rule is set forth, it usually describes real-world events and says, there’s a consequence, such as a right of action (or a criminal act, or a right to compensation) which follows if these real-world events are present. As all lawyers know, of course, such statements of rules don’t mean exactly what they say. Real-world events that aren’t described in the rule may come to be treated as if they are within the rule, because the courts feel that the not-mentioned items satisfy all the same purposes as the listed items do, when the overall purposes of the …

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

Notes On Nomenclature - 1985, Wendy J. Gordon

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The ordinary linkage between "property" and "thing" can be seen in the most common name given to the set of intellectual products. They are called "intellectual property."

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Notes On Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon Jan 1985

Notes On Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon

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At first blush, the creation of i/p seems to meet this test of Locke’s proviso, namely, that strangers cannot complain of the ownership if after the appropriation, “there was as good left, as that already possessed, and more than he knew what to do with, or his industry could reach to.” There would seem to be a nearly infinite store of possible melodies, poems, novels, ideas; granting ownership over one variant which has been reduced to expression by a creator wouldn’t seem to interfere with the stranger’s ability to create his own.

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Notes On Conversations With Jim White - 1985, Wendy J. Gordon Jan 1985

Notes On Conversations With Jim White - 1985, Wendy J. Gordon

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Jim White suggested looking at the institutional issues separately from the issue of ideal outcomes.

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Outline Of Desert Theory - 1985, Wendy J. Gordon Jan 1985

Outline Of Desert Theory - 1985, Wendy J. Gordon

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Locke suggests that a covetous stranger has no justification to complain of another’s taking possession and ownership of land if, after the owner’s appropriation, “there was as good left, as that already possessed, and more than he [the potential complainer] knew what to do with, or his industry could reach to.”

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Outline Of Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon Jan 1985

Outline Of Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon

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In seeking to understand what lies behind the court's apparent eagerness to grant property in intellectual products, a helpful starting place would seem to be the labour theory of property found in Locke's SECOND TREATIES OF GOVERNMENT. Speaking most generally, the theory suggests that a person who successfully uses his to her efforts to make useful those things which no one else has used or claimed may be rewarded with ownership of the things. The common law has long used a simpler variant of such a principle, awarding ownership to those who take possession of unclaimed physical resources. Creators of …

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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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Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon Jan 1985

Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon

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One has no right to complain about another’s appropriation of a plot of land. But we live interdependent lives today. If X were given a property right to pollute, Y might have quite a lot to complain about. If what we are looking for is conditions under which strangers have no right to complain about property being granted, then it would seem appropriate to broaden the proviso a bit and say, the stranger has no right to complain so long as he’s not harmed by the grant of property.

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Workshop Notes On New Property Rights - 1985, Wendy J. Gordon Jan 1985

Workshop Notes On New Property Rights - 1985, Wendy J. Gordon

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There’s a growth-by-accretion of new property rights, largely pushed by an unjust enrichment principles. Such a principle is itself without definable 1imits in an interrelated society. My task: looking at this trend from different vantage pts, other than that of pure desert, is the trend a good one. My view is that by and large it is not, but what we’ll discuss today falls far short of any such broad conclusion.

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Becker And The Exploitation/Competition Requirement - 1985, Wendy J. Gordon Jan 1985

Becker And The Exploitation/Competition Requirement - 1985, Wendy J. Gordon

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One common justification of intellectual property rights seems to rest with an appreciation of the creator's labors. Since he has exerted effort, and created something of value, he seems to deserve something for his pains. A claim of ownership over the thing created is sometimes considered a fitting reward.

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Notes On Demarcation And Other Issues - 1985, Wendy J. Gordon Jan 1985

Notes On Demarcation And Other Issues - 1985, Wendy J. Gordon

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Not only is there a problem with demarking the resource (e.g., the problem of larger and larger generality that Hand tries to deal with) but there's also a problem with demarking the TYPE OF USE. In DOW JONES, for example, the defendant was merely making reference to (not copying)the average; ditto the NFL case.

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Common Law Analogies - 1985, Wendy J. Gordon Jan 1985

Common Law Analogies - 1985, Wendy J. Gordon

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By the usual principles of claim-staking, casually viewed, the person who describes a new form of i/p seems to possess it. This may be one explanation for the property lure.

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

Notes On Restitution - 1985, Wendy J. Gordon

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The principle which allows payment for nondamaging uses of property is, I submit, this one: protecting the system of property from eroding. Looking at the leading case in the area, we see precisely that: the user of the property is required to pay for his use, lest he be placed in a better position than a non-trespasser. Any other rule might encourage erosion of property systems.

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Note On Trademarks - 1985, Wendy J. Gordon Jan 1985

Note On Trademarks - 1985, Wendy J. Gordon

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There's currently a debate about whether tmks owners shd be entitled to control strangers' usage of their tmks where the offending usage causes no confusion as to source. Usually the debate is conducted on usual lines on the eco side, whether the increase in incentives (for both production and devt) justifies the decrease in quantity & competitive sources. On the authors' rights side, whether the originators shd have any particular rights in tmks cuz of origination.

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Notes On New Organization - 1985, Wendy J. Gordon Jan 1985

Notes On New Organization - 1985, Wendy J. Gordon

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No abstract provided.

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Note On Singer's The Legal Rights Debate In Analytical Jurisprudence From Betham To Hohfeld - 1984, Wendy J. Gordon Dec 1984

Note On Singer's The Legal Rights Debate In Analytical Jurisprudence From Betham To Hohfeld - 1984, Wendy J. Gordon

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The economic realm is the area in which these sorts of privileges are most obviously to be found; it is in the economic realm that the evidence of "damnum absque injuria" began to accumulate, leading Homes, Salmond and others to recognize that the legal system did sometimes allow persons to inflict harm on others.

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Note On Goetz's Law And Economics: Cases And Materials - 1984, Wendy J. Gordon Dec 1984

Note On Goetz's Law And Economics: Cases And Materials - 1984, Wendy J. Gordon

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No abstract provided.

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Note On The House Of Cards: Revisiting Calabresi's Cathedral - 1984, Wendy J. Gordon Sep 1984

Note On The House Of Cards: Revisiting Calabresi's Cathedral - 1984, Wendy J. Gordon

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No one has taught us as much about law and economics as Calabresi, and nowhere so much as in the "Property Rights" article he wrote with Douglas Melamed twenty years ago. While the insights of that piece still retain their clarifying power, it's time for a reassessment. In giving us a newly empowered vocabulary and a mode of analysis, Calabresi and Melamed gave us a somewhat flawed picture of the world.

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Note On Caselaw Showing The “Property” Issue - 1984, Wendy J. Gordon Jan 1984

Note On Caselaw Showing The “Property” Issue - 1984, Wendy J. Gordon

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The "misappropriation as property" issue has surfaced in Lanham Act

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Draft Of Conceptual/Linguistic Analysis - 1984, Wendy J. Gordon Jan 1984

Draft Of Conceptual/Linguistic Analysis - 1984, Wendy J. Gordon

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Conceptually, what I'm interested in here is the extent to which the labels “tort” and “property” have utility. So I am interested in discovering also what these categories mean, how they can be used, and the danger in their misuse.

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Outline Of Issues Key: Revised Version - 1984, Wendy J. Gordon Jan 1984

Outline Of Issues Key: Revised Version - 1984, Wendy J. Gordon

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No abstract provided.

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Note On Individualized V Particularized Entitlement Inquiries - 1984, Wendy J. Gordon Jan 1984

Note On Individualized V Particularized Entitlement Inquiries - 1984, Wendy J. Gordon

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My analysis now looks something like this: Some entitlements should be "prima facie" protectible from invasion. That means that there are some entitlements which the owner should be able to protect even if he or she is unable to prove (a) that protection is in the net social interest or (b) that the invader's action is deserving of punishment. I would call these entitlements "property".

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Note On The Problem Of Flexible Standards - 1983, Wendy J. Gordon Dec 1983

Note On The Problem Of Flexible Standards - 1983, Wendy J. Gordon

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My basic contention is that courts have been giving plaintiffs tort and property rights in intangible without any greater justification than that those persons had “created” the intangible.

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An Economic Analysis Of Royalty Terms In Patent Licenses, Michael J. Meurer Jul 1983

An Economic Analysis Of Royalty Terms In Patent Licenses, Michael J. Meurer

Faculty Scholarship

Efficient exploitation of a patent often requires patentees to license users of their inventions. The courts, on the other hand, have proscribed many forms of license agreements and discouraged patent licensing in general, thereby diminishing the efficacy of the patent system as a stimulus to R & D. This negative attitude is attributable to fears that licensing will be used to protect invalid patents and secure illegitimate extensions of monopoly power. Part I of this Note reviews judicial treatment of certain royalty terms in patent licenses, describing the restraints the courts have imposed on the freedom of patentees to license …

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Draft Of The Misappropriation Explosion: Thoughts On The Development Of Property Rights - 1983, Wendy J. Gordon Jan 1983

Draft Of The Misappropriation Explosion: Thoughts On The Development Of Property Rights - 1983, Wendy J. Gordon

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The piece on which I am currently working explores courts' growing willingness to create tort and property rights in the intellectual property area, and their insensitivity to any danger of paralysis which a large degree of exclusivity may impose on an interdependent society. The following will summarize the directions the article is taking at this preliminary stage of research and thinking.

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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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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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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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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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