Intellectual Property Law Commons^™

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

Scholarship Chronologically

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.

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

Scholarship Chronologically

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

Scholarship Chronologically

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.

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

Scholarship Chronologically

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

Scholarship Chronologically

No abstract provided.

Draft Of A Labor Theory Of Property - 1990, Wendy J. Gordon

Scholarship Chronologically

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

Scholarship Chronologically

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

Scholarship Chronologically

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

Scholarship Chronologically

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

Scholarship Chronologically

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.

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

Scholarship Chronologically

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.

Letter From Louis Michael Seidman, Louis M. Seidman

Scholarship Chronologically

Dear Wendy:

Thanks for sending me your piece on intellectual property and the restitutionary impulse. As always with your work, I found it fascinating. I'm happy to give you my comments, but I doubt that they will be very useful to you. This is an area I know nothing about, so many of my problems reflect my lack of understanding, rather than any defects in your arguments. With that caveat, and for what it is worth, here are some reactions (many of which, as you will see, are quite trivial):

Notes On Economics Of Suppression - 1990, Wendy J. Gordon

Scholarship Chronologically

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.

Proposed Organization And Detailed Table Of Contents - 1990, Wendy J. Gordon

Scholarship Chronologically

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.

Draft Of New Versus Old Authors - 1990, Wendy J. Gordon

Scholarship Chronologically

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.

Notes Of Reference To The Common Law, Wendy J. Gordon

Scholarship Chronologically

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.

Draft Of Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship - 1990, Wendy J. Gordon

Scholarship Chronologically

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.

Notes On Lear V. Adkins And Kewanee: "Public Domain" And "Dissemination", Wendy J. Gordon

Scholarship Chronologically

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 …

Note On Serendipitous Legal Protections: Preemption Continued - 1989, Wendy J. Gordon

Scholarship Chronologically

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?

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

Scholarship Chronologically

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.

More On Indirect Protections: Piggyback Damage Claims - 1989, Wendy J. Gordon

Scholarship Chronologically

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 …

Note On The Desert Theory Paper - 1986, Wendy J. Gordon

Scholarship Chronologically

The desert theory paper may be recast under the title: “The Misappropriation Explosion: Desert Theory in Intellectual Property Law” or “Desert Theory Misapplied.”

Letter To Bruce Ackerman, Wendy J. Gordon

Scholarship Chronologically

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 …

Letter To Professor Bruce Ackerman, Wendy J. Gordon

Scholarship Chronologically

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.

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

Scholarship Chronologically

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

Note On General Conclusion - 1986, Wendy J. Gordon

Scholarship Chronologically

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 …

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

Scholarship Chronologically

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 …

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

Scholarship Chronologically

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.

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

Scholarship Chronologically

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.