Law and Tech Research feed - Menell http://law.berkeley.edu 11:12:55 -0400 09:00:00 -0400 Promoting Patent Claim Clarity http://www.law.berkeley.edu/14563.htm http://www.law.berkeley.edu/14563.htm Wed, 07 Nov 2012 09:00:00 -0400 Notice Failure and Notice Externalities
Effective notice is a far greater challenge when the resources in question are intangible. Such resources can be difficult to navigate because of the amorphous nature of intangible boundaries, the difficulty of determining whether an intangible resource is already “owned” (unlike tangible assets, the non-rivalrous nature of intangibles means that multiple developers can possess them simultaneously without affecting others’ use of the resource), and the complex rights associated with intangibles (e.g., patent’s doctrine of equivalents; copyright’s fair use doctrine).

The emergence of intangible resources such as intellectual property illuminates a previously unrecognized market failure: what we call a “notice externality.” The incentives of those claiming intellectual property diverge from the social interest. Notice information is a public good. Private parties tend to under-provide public goods because they do not appropriate the full value of their investments. Moreover, inventors and creators can sometimes benefit from obfuscating the scope of rights and keeping others in the dark about their intellectual property. This article explores the principal causes of notice failure in the development of intangible resources and offers a multi-faceted framework for diagnosing the causes of notice failure and preventing, internalizing, and ameliorating adverse effects. ]]> http://www.law.berkeley.edu/13081.htm http://www.law.berkeley.edu/13081.htm Sat, 18 Feb 2012 09:00:00 -0400 Design for Symbiosis: Promoting More Harmonious Paths for Technological Innovators and Expressive Creators in the Internet Age http://www.law.berkeley.edu/12765.htm http://www.law.berkeley.edu/12765.htm Tue, 31 Jan 2012 09:00:00 -0400 Jumping the Grooveshark: A Case Study in DMCA Safe Harbor Abuse http://www.law.berkeley.edu/12763.htm http://www.law.berkeley.edu/12763.htm Wed, 21 Dec 2011 09:00:00 -0400 Infringement Conflation
This essay critically analyzes Professor Tehranian’s selective account of the “infringement nation.” While jammed with historical tidbits, intriguing anecdotes, and illustrations of over-enforcement by copyright owners, Infringement Nation barely mentions the effects of unauthorized distribution of copyrighted works on composers, recording artists, film producers, screenwriters, novelists, or journalists. What little Infringement Nation has to say about Internet piracy centers on the risk of crushing liability that copyright law imposes on file-sharers. This distorted infringement “census” leads to misdirected policy recommendations.

After exposing the limitations of Infringement Nation’s lens, this essay fills in important missing regions from the census – the professional content industries that have been struggling to deal with rampant unauthorized distribution of their works. With this fuller picture of the infringement landscape in mind, the essay closes by exploring the challenge of channeling consumers back into the content marketplace. ]]> http://www.law.berkeley.edu/12074.htm http://www.law.berkeley.edu/12074.htm Thu, 27 Oct 2011 09:00:00 -0400 An Analysis of the Scope of Copyright Protection for Application Programs http://www.law.berkeley.edu/12077.htm http://www.law.berkeley.edu/12077.htm Sun, 16 Oct 2011 09:00:00 -0400 Tailoring Legal Protection for Computer Software http://www.law.berkeley.edu/12075.htm http://www.law.berkeley.edu/12075.htm Sun, 16 Oct 2011 09:00:00 -0400 The Challenges of Reforming Intellectual Property Protection for Computer Software http://www.law.berkeley.edu/12076.htm http://www.law.berkeley.edu/12076.htm Sun, 16 Oct 2011 09:00:00 -0400 An Epitaph for Traditional Copyright Protection of Network Features of Computer Software http://www.law.berkeley.edu/12078.htm http://www.law.berkeley.edu/12078.htm Sun, 16 Oct 2011 09:00:00 -0400 The Mixed Heritage of Federal Intellectual Property Law and Ramifications for Statutory Interpretation http://www.law.berkeley.edu/11599.htm http://www.law.berkeley.edu/11599.htm Wed, 27 Jul 2011 09:00:00 -0400 Patent Claim Construction: A Modern Synthesis and Structured Framework http://www.law.berkeley.edu/10328.htm http://www.law.berkeley.edu/10328.htm Sun, 09 Jan 2011 09:00:00 -0400 Forty Years of Wondering in the Wilderness and No Closer to the Promised Land: Bilski’s Superficial Textualism and the Missed Opportunity to Ground Patent Law Interpretation and Return Patent Law to its Technology Mooring http://www.law.berkeley.edu/10346.htm http://www.law.berkeley.edu/10346.htm Sun, 26 Dec 2010 09:00:00 -0400 In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.

]]> http://www.law.berkeley.edu/9913.htm http://www.law.berkeley.edu/9913.htm Tue, 14 Dec 2010 09:00:00 -0400 Sound Recordings, Works for Hire, and the Termination-of-Transfers Time Bomb http://www.law.berkeley.edu/10083.htm http://www.law.berkeley.edu/10083.htm Mon, 02 Aug 2010 09:00:00 -0400 Governance of Intellectual Resources and Disintegration of Intellectual Property in the Digital Age http://www.law.berkeley.edu/10084.htm http://www.law.berkeley.edu/10084.htm Sun, 30 May 2010 09:00:00 -0400 Section 337 Patent Investigation Management Guide http://www.law.berkeley.edu/10085.htm http://www.law.berkeley.edu/10085.htm Mon, 10 May 2010 09:00:00 -0400 Knowledge Accessibility and Preservation Policy for the Digital Age The importance of these issues, and the fact that Congress did not foresee the possibilities for a universally accessible, comprehensive archive when it last considered the role of libraries, call for Congress to consider the larger public policy ramifications of digital archiving and search technology. The goals of collecting, preserving, and cataloging human knowledge predate copyright laws. As copyright law developed, it embraced these concerns. Drawing upon this history, this article examines the democratic, cultural, and economic dimensions of developing a comprehensive, searchable database of books and other library materials. It then analyzes the spectrum of institutional alternatives for promoting the goals of preserving and providing access to knowledge while safeguarding copyright law's incentives to create. The article recommends that Congress effectuate these goals through a carefully crafted package of safe harbors, measured liability exposure for technology vulnerable to piracy, and public involvement in the development and management of a searchable digital repository of copyrighted works. For the longer term, the Article recommends that Congress update the deposit requirement to provide for digital deposit of written works and plan for the development of a public comprehensive searchable archive. In the event that legislation is not forthcoming before the Google Book Search Project is litigated, the article shows that copyright law's long-standing access and preservation goals provide an important context for courts applying copyright law's fair use doctrine to digital archiving activities.

]]> http://www.law.berkeley.edu/10334.htm http://www.law.berkeley.edu/10334.htm Wed, 27 Jan 2010 09:00:00 -0400 Pooh-Poohing Copyright Law’s 'Inalienable' Termination Rights http://www.law.berkeley.edu/10086.htm http://www.law.berkeley.edu/10086.htm Tue, 29 Dec 2009 09:00:00 -0400 Envisioning Copyright Law's Digital Future http://www.law.berkeley.edu/10329.htm http://www.law.berkeley.edu/10329.htm Tue, 06 Oct 2009 09:00:00 -0400 Unwinding Sony This article scrutinizes this critical logical premise. Part I exhaustively reviews the litigation and correspondence of the justices to understand why the Court paid so little attention to the legislative materials and so much to the patent law. It finds that gaps in the information provided to the Court, in conjunction with the justices' lack of familiarity with copyright law generally and the Copyright Act of 1976 in particular, led the Court astray. Part II tests the "historic kinship" premise, finding that it cannot withstand scrutiny. Had the Court traced the origins of copyright and patent back to their source, it would have seen that they both derive from a common wellspring: tort principles. Concerns about patent misuse and improper leveraging of monopoly power led the courts, and later Congress, to carve out an express safe harbor in patent law for those selling "staple articles of commerce" - products suitable for substantial non-infringing uses. Part III demonstrates that the 1976 Copyright Act envisioned that courts would continue to use the traditional tort wellspring, informed by the distinctive challenges of copyright enforcement. This would have brought the reasonable alternative design framework of products liability law into play. The article shows that this approach would almost certainly have resulted in the same outcome that the Sony Court reached, but of critical importance, it would have provided a more sound and dynamic jurisprudential framework for calibrating liability as new technologies develop. Part IV examines Sony's legacy, showing that subsequent legislative activity, court decisions, and the marketplace reflect a practical reality that lies closer to the reasonable alternative design standard than a broad "staple article of commerce" safe harbor. In reality, Sony's "staple article of commerce" doctrine has proven largely symbolic and unworkable, as Congress, the courts, and businesses in the marketplace have sought to promote product innovation without unduly jeopardizing copyright protection. The failure to recognize that reality, however, breeds doctrinal confusion, distorts case law evolution, and stultifies the larger policy debate over copyright protection in the digital age.

]]> http://www.law.berkeley.edu/10340.htm http://www.law.berkeley.edu/10340.htm Tue, 06 Oct 2009 09:00:00 -0400 Bankruptcy Treatment of Intellectual Property Assets: An Economic Analysis http://www.law.berkeley.edu/10330.htm http://www.law.berkeley.edu/10330.htm Tue, 06 Oct 2009 09:00:00 -0400 Legal Realism in Action: Indirect Copyright Liability's Continuing Tort Framework and Sony's De Facto Demise http://www.law.berkeley.edu/10339.htm http://www.law.berkeley.edu/10339.htm Tue, 06 Oct 2009 09:00:00 -0400 Nonpatentability of Business Methods: Legal and Economic Analysis We also address warnings that upholding the business method exclusion would hamper innovation. Economic research indicates that restoring the business method exclusion could well promote progress, innovation, and competition. Although we doubt that these considerations bear significantly if at all on the interpretive questions before the Court, they should certainly not be weighed on the side of extending patent protection to business methods.

The courts and the Patent Office successfully navigated the line between technological and non-technological fields for over two centuries. Patent systems throughout the world continue to do so. Reestablishing technological advance as the touchstone for patent protection in the United States will help to restore confidence in, the efficacy of, and the logic of this vital institution.

]]> http://www.law.berkeley.edu/10342.htm http://www.law.berkeley.edu/10342.htm Fri, 02 Oct 2009 09:00:00 -0400 Indirect Copyright Liability and Technological Innovation http://www.law.berkeley.edu/10341.htm http://www.law.berkeley.edu/10341.htm Tue, 09 Jun 2009 09:00:00 -0400 Patent Case Management Judicial Guide Because of the decentralized, general jurisdiction structure of federal courts in the United States, much of the experience relating to managing patent cases is silo-ed in particular judicial chambers. As one jurist aptly noted, best practices for patent case management have been transmitted largely through word of mouth. Given the crowded, diverse dockets of federal courts, the accessibility and reliability of such knowledge is far from ideal. Judges in some districts have partially codified recommended practices in the form of Patent Local Rules, standing orders, and patent jury instructions, but these documents do not address the full range of distinctive challenges posed by patent litigation. Furthermore, such judicial wisdom continues to evolve.

Recognizing these patterns, the authors undertook in 2006 to survey the range of approaches and perspectives on patent case management, foster discussion and analysis of patent case management techniques, and develop an authoritative guide for judges, law clerks, practitioners, and patent and civil procedure professors and scholars. Given the dynamism of the patent system and patent litigation, the authors plan to revise the Guide on a biennial basis.

]]> http://www.law.berkeley.edu/10326.htm http://www.law.berkeley.edu/10326.htm Fri, 05 Jun 2009 09:00:00 -0400 Judicial Resistance to Copyright Law's Inalienable Right to Terminate Transfers http://www.law.berkeley.edu/10345.htm http://www.law.berkeley.edu/10345.htm Tue, 10 Mar 2009 09:00:00 -0400 Intellectual Property and the Law of Land http://www.law.berkeley.edu/10338.htm http://www.law.berkeley.edu/10338.htm Sun, 24 Feb 2008 09:00:00 -0400 Intellectual Property and the Property Rights Movement http://www.law.berkeley.edu/10332.htm http://www.law.berkeley.edu/10332.htm Thu, 12 Jul 2007 09:00:00 -0400 The Property Rights Movement's Embrace of Intellectual Property: True Love or Doomed Relationship? http://www.law.berkeley.edu/10333.htm http://www.law.berkeley.edu/10333.htm Mon, 26 Feb 2007 09:00:00 -0400 A Method for Reforming the Patent System http://www.law.berkeley.edu/10337.htm http://www.law.berkeley.edu/10337.htm Mon, 22 Jan 2007 09:00:00 -0400 Regulating 'Spyware': The Limitations of State 'Laboratories' and the Case for Federal Preemption of State Unfair Competition Laws http://www.law.berkeley.edu/10344.htm http://www.law.berkeley.edu/10344.htm Thu, 22 Sep 2005 09:00:00 -0400 Intellectual Property http://www.law.berkeley.edu/10327.htm http://www.law.berkeley.edu/10327.htm Fri, 15 Jul 2005 09:00:00 -0400 Indirect Copyright Liability: A Re-examination of Sony's Staple Article of Commerce Doctrine The article re-examines Sony's jurisprudential foundation. In that case, the Court transplanted an express categorical limitation on indirect liability from the Patent Act into the Copyright Act, notwithstanding that Congress had only recently reformed the Copyright Act without including any such limitation on liability among the many express exemptions, limitations, and immunities contained in the statute. Furthermore, Congress reaffirmed the continued applicability and evolution of infringement standards through case-by-case adjudication. The Sony decision failed to examine the important differences between patent and copyright protection. Whereas patent law seeks to promote technological innovation and evolved a staple article of commerce doctrine primarily out of concern for unduly expanding patent scope, copyright law seeks to promote cultural and social progress, manifesting a more cautious stance toward technological dissemination, particularly where a technology threatens widespread piracy of expressive works. Products that encourage patent infringement do not threaten harm beyond a single patent or cluster of patents, whereas the technology at issue in the Grokster case threatens systemic harm to the copyright system by promoting rampant unauthorized distribution of all manner of works of authorship. Therefore, the uncritical transplantation of Patent Act's immunity for dual-use technologies into the Copyright Act poses grave dangers that were beyond the Supreme Court's view when it decided the Sony case in 1984, before the digital revolution took hold. Furthermore, amendments to the Copyright Act since the Sony decision demonstrate that Congress does not believe that dual-use technology - i.e., technology that is capable of both infringing and substantial non-infringing uses - should be treated as inviolate under copyright law. Rather, Congress has shown that it sees a need to balance the efficacy of the copyright system for promoting creative expression against social interests in technological innovation and consumer autonomy.

]]> http://www.law.berkeley.edu/10336.htm http://www.law.berkeley.edu/10336.htm Fri, 11 Mar 2005 09:00:00 -0400 An Economic Assessment of Market-Based Approaches to Regulating the Municipal Solid Waste Stream http://www.law.berkeley.edu/10335.htm http://www.law.berkeley.edu/10335.htm Sat, 11 Sep 2004 09:00:00 -0400 Pre-existing Confusion in Copyright's Work-for-Hire Doctrine This article examines a potentially significant and heretofore unrecognized conundrum of the 1976 Copyright Act relating to the "contribution to a collective work" category. Congress defined "collective works" as comprised of "preexisting materials." Yet the work made for hire provision contemplates "contributions to collective works" being specially ordered or commissioned. How is it possible for a publisher or record label to specially order or commission contributions that already exist? The authors' journey into the complex evolution of the 1976 Copyright Act reveals that Congress did not intend that "contributions to collective works" preexist their commissioning, even though the inartful drafting of some of the Section 101 definitions suggest otherwise. For purposes of applying the work for hire doctrine, courts should either ignore the use of the term "preexisting" in the definition of "collective work," or interpret the term "contribution to collective work" to include "contribution to yet-to-be-assembled collective work" in the definition of "work made for hire." The article also elucidates the legislative history underlying the right to terminate transfers, a right which will have justiciable implications beginning in 2003.

]]> http://www.law.berkeley.edu/10331.htm http://www.law.berkeley.edu/10331.htm Tue, 17 Dec 2002 09:00:00 -0400 Economic Implications of State Sovereign Immunity from Infringement of Federal Intellectual Property Rights http://www.law.berkeley.edu/10343.htm http://www.law.berkeley.edu/10343.htm Tue, 16 Jan 2001 09:00:00 -0400 Economic Implications of Erisa http://www.law.berkeley.edu/12764.htm http://www.law.berkeley.edu/12764.htm Wed, 14 Jul 1982 09:00:00 -0400