Author(s): Chris Jay Hoofnagle Year: 2004 Abstract: The matter of public concern test is the threshold inquiry courts use to determine whether a public employee’s expression falls within the bounds of constitutionally protected speech. This test has been extended into the realm of academia, and it is now used to determine the First Amendment value […]
Matters of Public Concern and the Public University Professor
Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property
Author(s): Paul M. Schwartz Year: 2004 Abstract: Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who […]
Profit Neutrality in Licensing: The Boundary Between Antitrust Law and Patent Law
Author(s): Suzanne Scotchmer Year: 2008 Abstract: We address the patent/antitrust conflict in licensing and develop three guiding principles for deciding acceptable terms of license. Profit neutrality holds that patent rewards should not depend on the rightholder’s ability to work the patent himself. Derived reward holds that the patentholder’s profits should be earned, if at all, […]
Procuring Knowledge
Author(s): Suzanne Scotchmer Year: 2003 Abstract: There is growing public interest in alternatives to intellectual property including, but not limited to, prizes and government grants. We argue that there is no single best mechanism for supporting research. Rather, mechanisms can only be compared within specific creative environments. We collect various historical and contemporary examples of […]
The Core and Hedonic Core: Reply to Wooders (2001), with Counterexamples
Author(s): Suzanne Scotchmer Year: 2003 Abstract: In response to Wooders (2001), I review the contributions of Engl and Scotchmer (1996) regarding monotonicity and the hedonic core, show how our contributions diverge from those previously in the literature, and highlight the importance of our assumptions by giving counterexamples, particularly to related results of Wooders. Keywords: Hedonic […]
Damages and Injunctions in the Protection of Proprietary Research Tools
Author(s): Suzanne Scotchmer Year: 2000 Abstract: We investigate how liability rules and property rules protect intellectual property. Infringement might not be deterred under any of the enforcement regimes available. However, counterintuitively, a credible threat of infringement can actually benefit the patentholder. We compare the two doctrines of damages, lost profit (lost royalty) and unjust enrichment, […]
Open Source Software: The New Intellectual Property Paradigm
Author(s): Suzanne Scotchmer Year: 2006 Abstract: Open source methods for creating software rely on developers who voluntarily reveal code in the expectation that other developers will reciprocate. Open source incentives are distinct from earlier uses of intellectual property, leading to different types of inefficiencies and different biases in R&D investment. Open source style of software […]
Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act
Author(s): Jennifer Urban Year: 2006 Abstract: Digital Millennium Copyright Act, created a process that was intended to help copyright owners ensure rapid removal of allegedly infringing material from the Internet while guaranteeing compliant OSPs a safe harbor from liability for Internet users’ acts of copyright infringement. The U.S. copyright industry thus gained a new tool […]
Envisioning Copyright Law’s Digital Future
Author(s): Peter S. Menell Year: 2009 Abstract: Copyright initially developed in response to the printing press and gradually evolved to encompass other methods of mechanically storing and reproducing works of authorship, such as photography, motion pictures, and sound recordings. The advent of broadcasting – the ability to perform works at distant points – led to […]
Bankruptcy Treatment of Intellectual Property Assets: An Economic Analysis
Author(s): Peter S. Menell Year: 2009 Abstract: With the rise of intellectual property in the modern economy, bankruptcy treatment of intellectual property assets has taken on ever greater importance. The law in this area must balance different approaches to asset management. Viewing the world from an ex ante perspective, intellectual property laws seek to foster […]