Author(s): Peter S. Menell Year: 2009 Abstract: The Supreme Court’s indirect copyright liability standard, derived in Sony Corporation of America v. Universal City Studios from patent law and reasserted in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., is widely seen as creating a safe harbor for distributors of dual use technologies. Yet, when one looks to […]
Legal Realism in Action: Indirect Copyright Liability’s Continuing Tort Framework and Sony’s De Facto Demise
Nonpatentability of Business Methods: Legal and Economic Analysis
Author(s): Peter S. Menell Year: 2009 Abstract: In this brief filed in Bilski vs. Kappos, pending before the U.S. Supreme Court, we argue that the “useful Arts” limitation of the the Intellectual Property Clause of the U.S.Constitution restricts the scope of Congress’s patent power to technological advances. Beyond this constitutional limitation, Congress has not extended […]
Regulating ‘Spyware’: The Limitations of State ‘Laboratories’ and the Case for Federal Preemption of State Unfair Competition Laws
Author(s): Peter S. Menell Year: 2005 Abstract: Drawing on Justice Brandeis’s oft-cited observation that states can serve as “laboratories” of policy experimentation, this Article develops a framework for assessing the allocation of governance authority for regulating Internet activities. In particular, it focuses on whether states should be free to experiment with regulatory approaches or whether […]
Who Owns the Charles River Bridge? Intellectual Property and Competition in the Software Industry
Author(s): Robert P. Merges Year: 2000 Abstract: Long, long ago, in an economy far away, decision makers responsible for maintaining the footings of commerce faced a troubling question: should entrenched property rights, manifested in a publicly chartered bridge franchise, be permitted to stand in the way of a new and better bridge, to compete directly […]
Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations
Author(s): Robert P. Merges Year: 1997 Abstract: As intellectual property rights have gained in prominence, businesspeople and scholars alike have complained of the increasing burden of obtaining intellectual property licenses and, failing this, litigating intellectual property disputes. Intellectual property experts, especially scholars, have responded to this burgeoning thicket of rights with a series of initiatives […]
Enriching Discourse on Public Domains
Author(s): Pamela Samuelson Year: 2006 Abstract: Is there one public domain, or are there many public domains? The scholarly literature predominantly assumes there is only one, for references abound to “the public domain” in the singular. Yet, even a cursory review of this literature reveals that scholars sometimes define this term differently. So if there […]
Principles for Resolving Conflicts Between Trade Secrets and the First Amendment
Author(s): Pamela Samuelson Year: 2006 Abstract: Preliminary and permanent injunctions are routinely granted in trade secret cases without offending the First Amendment, and this is as it should be. In ordinary trade secret cases, injunctions merely require parties to abide by express or implicit agreements they have made, respect the confidences under which they acquired […]
A Prize System as a Partial Solution to the Health Crisis in the Developing World
Author(s): Talha Syed Year: 2009 Abstract: Each year, roughly nine million people in the developing world die from infectious diseases. Millions more endure suffering caused by the same diseases. Many of those deaths and much of that pain could be avoided by modifying the combination of laws and government programs that provide incentives for the […]
Tailoring Legal Protection for Computer Software
Author(s): Peter S. Menell Year: 2011 Abstract: This article applies economic analysis to the design of legal protection for computer software. Keywords: computer software, network economics, copyright Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1944548
The Challenges of Reforming Intellectual Property Protection for Computer Software
Author(s): Peter S. Menell Year: 2011 Abstract: This article examines three critical, interrelated challenges for reforming legal protection for computer software: (1) analyzing the market failures that might justify government intervention to define (or alter) the legal entitlements granted for software innovations; (2) predicting the likely path of computer technology; and (3) anticipating and navigating […]