Author(s): Jason Schultz Year: 2013 Abstract: This Amicus Brief was filed in the United States Court of Appeal for the Second Circuit in the case of Authors Guild v. Hathitrust on June 4, 2013. The case is on Appeal from the United States District Court for the Southern District of New York, No. 11 CV […]
Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Hathitrust
Solving the Orphan Works Problem for the United States
Author(s): Pamela Samuelson and Jennifer Urban Year: 2013 Abstract: Over the last decade, the problem of orphan works — i.e., copyrighted works whose owners cannot be located by a reasonably diligent search — has come sharply into focus as libraries, archives, and other large repositories of copyrighted works have sought to digitize and make available […]
Locke for the Masses: Property Rights and the Products of Collective Creativity
Author(s): Robert P. Merges Year: 2009 Abstract: In this brief Idea piece, I describe how the labor theory of property rights associated with John Locke might apply to projects such as Wikipedia, which aggregate many small contributions by dispersed contributors. These works of “collaborative creativity” represent very significant investments of time and resources, yet do […]
The Independent-Invention Defense in Intellectual Property
Author(s): Suzanne Scotchmer Year: 1999 Abstract: Patents differ from other forms of intellectual property in that independent invention is not a defense to infringement. We argue that the patent rule is inferior. First, the threat of entry by independent invention would induce patentholders to license the technology, lowering the market price. Provided independent invention is […]
The Political Economy of Intellectual Property Treaties
Author(s): Suzanne Scotchmer Year: 2004 Abstract: Intellectual property treaties create two types of obligations: for national treatment of foreign inventors and for certain harmonized protections. I investigate both the incentive to join such treaties and the incentive to harmonize. As compared to an equilibrium in which the countries’ policy makers make independent choices, harmonization will […]
The Property Rights Movement’s Embrace of Intellectual Property: True Love or Doomed Relationship?
Author(s): Peter S. Menell Year: 2007 Abstract: The recent Supreme Court battle over the legal standard for permanent injunctions in patents cases (eBay v. MercExchange) marked an important new front in the Property Rights Movement’s campaign to establish a strict and broad interpretation of property rights and their enforcement. This essay explores whether Professor Richard […]
Legal Realism in Action: Indirect Copyright Liability’s Continuing Tort Framework and Sony’s De Facto Demise
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 […]
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 […]