Intellectual Property Law Commons^™

Publishing Privacy: Intellectual Property, Self-Expression, And The Victorian Novel, Jessica Bulman-Pozen

Faculty Scholarship

The relationship between privacy and intellectual property has resurfaced with a twist at the turn of the twenty-first century. If Victorian authors regarded intellectual property as private, contemporary proposals instead urge us to regard private information as property. In response to technological developments that have facilitated unprecedented invasions of individuals’ privacy, some scholars have advocated legally classifying private information as a form of property. These scholars insist that the best way to respond to privacy violations, particularly corporate commodification of personal data, is to invest people with property rights that would furnish control over their personal information. Insofar as intellectual …

The New Technology Transfer Block Exemption: Will The New Block Exemption Balance The Goals Of Innovation And Competition?, Maurits Dolmans, Anu Bradford

Faculty Scholarship

Licensors and licensees have long enjoyed the benefit of block exemption regulations for technology licensing. Block exemption regulations were adopted in the mid-80s for patent licensing and know-how licenses. These were combined and replaced in 1996 by a unified Technology Transfer Block Exemption Regulation (TTBE). This block exemption is currently under review.

DG Competition is writing a draft for a new T'BE. It is expected to be ready for review by the member states in September, and to be published for comments in October. The Commission hopes to have the new block exemption adopted and published in the first quarter …

Achieving Balance In International Copyright Law, Jane C. Ginsburg

Faculty Scholarship

In 1996, the World Intellectual Property Organization (WIPO) adopted two related treaties, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty (the WIPO Treaties). Though now often referred to as the "WIPO Internet Treaties," the agreements emerged after five years of preparation, only the last two of which focused on a "digital agenda." These treaties, following on the 1994 World Trade Organization TRIPs Accord, have substantially expanded, and somewhat harmonized, the role of international copyright and neighboring rights norms in the international exchange of works of authorship and related productions. When enactment of the WIPO Treaties with their …

When Code Isn't Law, Tim Wu

Faculty Scholarship

When the Supreme Court upheld extended copyright terms in Eldred v. Ascroft, many Internet activists called for renewed political action in the form of appeals to Congress or even a campaign to amend the Constitution. But others suggested a very different course: They argued that it would be wiser to forgo institutions controlled by the powers of the past, and to return instead to the keyboard to write the next generation of "lawbusting" code. In the words of one observer, "tech people are probably better off spending their energy writing code than being part of the political process" because …

The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill

Faculty Scholarship

United States v. Mead Corp. is the U.S. Supreme Court's most important pronouncement to date about the scope of the Chevron doctrine. According to Justice Scalia's dissenting opinion, Mead is "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action." Justice Scalia also thought that the consequences of "the Mead doctrine," as he called it, "will be enormous, and almost uniformly bad."

Justice Scalia's indictment of Mead was driven by his attachment to rules and dislike of standards. He saw Mead as shifting the practice of deference away from the …

Incomplete Compensation For Takings, Thomas W. Merrill

Faculty Scholarship

If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is "tantamount to" an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is …

Misstatements Of Fact In Adam Vangrack's Student Note: A Letter To The Editors Of The Washington University Law Quarterly, Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

The Quarterly's Fall 2001 issue published a Note reviewing our report, A Broken System: Error Rates in Capital Cases, 1973-1995. That Note has three inaccuracies that are so clear and frequently repeated, and are the result of such clear cite-checking lapses, that remedial steps are required. These matters do not involve differences of opinion, judgment, or interpretation between us and the Note's author. Matters of that sort are appropriately addressed in a response. All instead are misstatements of fact that result from the Quarterly's failure to fulfill its basic obligation to check the accuracy of verifiable factual statements it …

Vangrack's Explanations: Treating The Truth As A Mere Matter Of "Form", Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

We welcome criticism by responsible scholars and readers, and the chance to address it in journals that enforce appropriate standards of accuracy and integrity. We have done just that in exchanges in Judicature and the Indiana Law Journal.

But the inaccuracies in Adam VanGrack's Note, and new problems with his present explanation, lead us to conclude that it is not useful to exchange views with him in the Washington University Law Quarterly. Beyond all is Mr. VanGrack's dismissal of matters serious enough to trigger an extraordinary instruction to explain himself in print, and to prompt him to rescind …

Draft Convention On Jurisdiction And Recognition Of Judgments In Intellectual Property Matters, Rochelle Cooper Dreyfuss, Jane C. Ginsburg

Faculty Scholarship

The proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters is currently drafted to cover most fields of private litigation, including intellectual property. However, as those following the Hague process are aware, the Convention has run into considerable difficulties. There is currently reason to be concerned that it may not be promulgated at all, or that if it is promulgated, that it will be reduced in scope and cover only select areas of litigation, likely not to include intellectual property. This proposal is meant to spur the intellectual property bar to consider whether it would be …

How Copyright Got A Bad Name For Itself, Jane C. Ginsburg

Faculty Scholarship

This Essay does not attempt a comprehensive review of recent U.S. copyright legislation and caselaw. Instead, it offers an analytical framework that will allow me to be both informative and opinionated. I propose first to expose some examples of the kind of copyright owner overreaching that has correctly given copyright a bad name. I then will argue that not all the bad publicity is deserved. Rather, much of the last years' legislation and caselaw, instead of overreaching, appropriately reaches out to address new problems prompted by new technologies, so as to strike a happier balance between copyright owner, intermediary, and …

From Having Copies To Experiencing Works: The Development Of An Access Right In U.S. Copyright Law, Jane C. Ginsburg

Faculty Scholarship

This essay addresses how current U.S. copyright law responds to new forms of distribution of copyrighted works, through the emerging right to control digital access to copyrighted works, as set out in § 1201 of the 1998 Digital Millennium Copyright Act. When the exploitation of works shifts from having copies to directly experiencing the content of the work, the author's ability to control access becomes crucial. Indeed, in the digital environment, without an access right, it is difficult to see how authors can maintain the exclusive Right to their Writings that the Constitution authorizes Congress to secure. Even if Congress …

Patent Signals, Clarisa Long

Faculty Scholarship

Courts and commentators often treat intellectual property as if the private value of the rights stemmed entirely from the control legal rules conferred over the protected subject matter. While the literature has devoted an enormous amount of time, paper, and ink to the discussion of whether legal rules grant the optimal amount of exclusivity, it has not considered whether it has been examining all the functions of patents This Article provides a new general framework for analyzing the function and effect of intellectual property rules. Rather than focusing on patents as a mechanism for privatizing information, this Article instead frames …

"The Exclusive Right To Their Writings": Copyright And Control In The Digital Age, Jane C. Ginsburg

Faculty Scholarship

In this article, I will explore the concept of control and the meaning of exclusive rights in the constitutional text, the pre-1976 Copyright Act regime, and the 1976 Act. I then consider the new technology cases from piano rolls through videotaperecorders, as well as Congress' responses to new technological means of exploitation. I make two submissions. First, I conclude that when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement, even though the legal and economic analysis that support those determinations often …

Information Technology And Non-Legal Sanctions In Financing Transactions, Ronald J. Mann

Faculty Scholarship

This Essay investigates the effect of advances in information technology on the private institutions that businesses use to resolve information asymmetries in financing transactions. The first part of the Essay discusses how information technology can permit direct verification of the information, obviating the problem entirely; the Essay discusses the example of the substitution of the debit card for the check, which provides an immediate payment that obviates the need for the merchant to consider whether payment will be forthcoming when the check is presented to the bank on which it is drawn.

The second part of the Essay discusses how …

The Dynamic Analytics Of Property Law, Michael A. Heller

Faculty Scholarship

The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership. This essay suggests two approaches – creating new ideal types and synthesizing existing ones – that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.

Can Copyright Become User-Friendly? Review: Jessica Litman, Digital Copyright (2001), Jane C. Ginsburg

Faculty Scholarship

In this review, I will first briefly address Professor Litman's evocation of the copyright law-making process. Her discussion of legislative history presents a valuable and compelling account, especially for those unfamiliar with copyright law. Nonetheless, it is not a principal focus of this review. For those who read the Columbia Journal of Law & the Arts (many of whom may well be copyright lawyers), the most provocative portions of the book, to which I will devote most attention, are likely to be the chapters in which Professor Litman (a) reviews and challenges various metaphors for copyright policy (Chapter 5, "Choosing …

Berne Without Borders: Geographic Indiscretion And Digital Communications, Jane C. Ginsburg

Faculty Scholarship

This lecture examines the role of borders in the Berne Convention at the time of the treaty's first passage in 1886, and today. The later 19th century was an era of increasing commerce and communication among countries whose domestic production and reproduction of works of authorship had vastly increased, thanks in part to new technologies, such as photography, lithography, and high-speed printing. But at that time, the frontiers between nations often frustrated authors' hopes for control over, or at least compensation for, the international exploitation of their works. Authors' rights ceased at their national boundaries; the world beyond foreboded not …

Have Moral Rights Come Of (Digital) Age In The United States?, Jane C. Ginsburg

Faculty Scholarship

More than any other contemporary American legal scholar, Professor Merryman has drawn attention to the moral rights claims of artists. Anything written in the field in the United States since 1976 owes inspiration to The Refrigerator of Bernard Buffet ("The Refrigerator") Professor Merryman's seminal article in the 1976 Hastings Law Journal. I feel this particularly acutely since I became interested in the issue as a law student, in 1978. It looked like a hopeful time, for Professor Merryman had shown the way, and the Second Circuit, in the then-recently decided Monty Python case, seemed to be paying heed. The …

Copyright And Control Over New Technologies Of Dissemination, Jane C. Ginsburg

Faculty Scholarship

The relationship of copyright to new technologies that exploit copyrighted works is often perceived to pit copyright against progress. Historically, when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement. However, when owners seek instead to participate in and be paid for the new modes of exploitation, the courts, and Congress, appear more favorable to copyright control over that new market. Today, the courts and Congress regard the unlicensed distribution of works over the Internet as impairing copyright owners' ability to avail …

Toward Supranational Copyright Law? The Wto Panel Decision And The "Three-Step Test" For Copyright Exceptions, Jane C. Ginsburg

Faculty Scholarship

A dispute resolution panel of the World Trade Organization in June 2000 held the United States in contravention of its obligation under art. 13 of the TRIPs accord to "confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." In the dispute resolution proceeding, initiated by the European Union at the behest of the Irish performing rights organization, the contested exception, enacted in the 1998 "Digital Millennium Copyright Act," exempted a broad range of retail and …

The Landscape Of Constitutional Property, Thomas W. Merrill

Faculty Scholarship

The Constitution contains two clauses that protect persons against governmental interference with their property. The Due Process Clause provides that "No person shall ... be deprived of life, liberty, or property, without due process of law." The Takings Clause adds, "nor shall private property be taken for public use, without just compensation." Both provisions appear to impose a threshold condition that a claimant have some "property" at stake before the protections associated with the Clause apply. Thus, under the Due Process Clause, it would seem that a claimant must have an interest in "property" (or in "life" or "liberty") before …

Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

A central difference between contract and property concerns the freedom to "customize" legally enforceable interests. The law of contract recognizes no inherent limitations on the nature or the duration of the interests that can be the subject of a legally binding contract. Certain types of promises – such as promises to commit a crime – are declared unenforceable as a matter of public policy. But outside these relatively narrow areas of proscription and requirements such as definiteness and (maybe) consideration, there is a potentially infinite range of promises that the law will honor. The parties to a contract are free …

Proprietary Rights And Why Initial Allocations Matter, Clarisa Long

Faculty Scholarship

Initial allocations of proprietary rights matter because who starts out holding the rights helps determine who ends up holding the rights. In patent law, proprietary rights are granted to those who are first to invent. But entities who win the race to patent an invention are not necessarily the final, or best, or most efficient users of the technology. If proprietary rights, particularly patents on basic research results, could be traded efficiently so that downstream innovators could obtain them from initial rights holders easily, then initial allocations of proprietary rights would not matter so much. Transferring proprietary rights is costly, …

International Copyright: From A "Bundle" Of National Copyright Laws To A Supranational Code?, Jane C. Ginsburg

Faculty Scholarship

In recent years, the number and content of substantive norms that international copyright treaties impose on member states have increased considerably. It is therefore appropriate to consider the extent to which those instruments have in effect created an international (or at least multinational) copyright code, as well as to inquire what role national copyright laws do and should have in an era not only of international copyright norms, but of international dissemination of copyrighted works. This Article first considers the displacement of national norms through the evolution of a de facto international copyright code, elaborated in multilateral instruments such as …

Copyright Use And Excuse On The Internet, Jane C. Ginsburg

Faculty Scholarship

1998 ended with voluminous copyright legislation, pompously titled the "Digital Millennium Copyright Act" [hereafter "DMCA"], and intended to equip the copyright law to meet the challenges of online digital exploitation of works of authorship. 1999 and 2000 have brought some of the ensuing confrontations between copyright owners and Internet entrepreneurs to the courts. The evolving caselaw affords an initial opportunity to assess whether the copyright law as abundantly amended can indeed respond to digital networks, or whether the rapid development of the Internet inevitably outstrips Congress' and the courts' attempts to keep pace.

In titling this Article "Copyright Use and …

Patents And Cumulative Innovation, Clarisa Long

Faculty Scholarship

Proprietary rights to the products of biomedical research have repeatedly been a source of controversy for over twenty years. Patents on biomedical innovations have allowed scientists, academics, and research institutions to raise research funds and have contributed to the growth of the biotechnology industry. But “one firm’s research tool may be another firm’s end product.” Patents have been a source of great concern for academic and basic researchers, who fear that proprietary rights to basic research results will hamper the progress of science, stifle the free flow of new knowledge and the dissemination of research results, and chill the research …

The Constitutionality Of Copyright Term Extension: How Long Is Too Long, Jane C. Ginsburg, Wendy J. Gordon, Arthur R. Miller, William F. Patry

Faculty Scholarship

I am Professor William Patry of the Benjamin N. Cardozo School of Law. I will be the moderator of this star-studded debate on the Sonny Bono Copyright Term Extension Act.

This panel will try to determine, on the great continuum of limited times that the Constitution prescribes for copyright in Article I, Section 8, Clause 8, the term of protection that Congress has actually fixed. In other words: How long is too long? Sonny's bill establishes a term of protection of life plus seventy years for individual authors for works created on or after January 1, 1978. The bill retroactively …

The Constitution And The Cathedral: Prohibiting, Purchasing, And Possibly Condemning Tobacco Advertising, Thomas W. Merrill

Faculty Scholarship

This Article has both theoretical and practical objectives, which are closely interrelated. The theoretical objective is to develop a framework for understanding the "transaction structure" of constitutional rights. By this, I refer to the different rules that determine when the government may purchase, condemn, or otherwise extinguish constitutional rights. The practical objective is to consider different options that may be available to the government, as part of a broader effort to reduce the incidence of smoking, to curtail tobacco advertising that would otherwise be protected under the First Amendment. It is my hope that the theoretical framework will illuminate the …

Secured Credit And Software Financing, Ronald J. Mann

Faculty Scholarship

Software is a relatively new type of business asset, but already has taken on a central role in all sectors of the economy; when any asset brings such a crucial value to businesses, the desire for lending based on that asset cannot be far behind. Unfortunately, the existing academic literature contains no sustained examination of software-related lending.

Because the software industry is in its infancy, the existing empirical evidence is inadequate to support any understanding of it. Accordingly, I undertook a series of twenty-nine informal interviews with industry participants, including lenders in both the Massachusetts Route 128 corridor and Silicon …

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Faculty Scholarship

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …