Legal Theory Blog

Merges on IP & Technological Platforms

Robert P. Merges (University of California, Berkeley - School of Law) has posted IP Rights and Technological Platforms on SSRN.  Here is the abstract:

This paper is about intellectual property rights (IPRs) and platform technologies. After a brief introduction explaining some basics of networks, standards and platforms, I turn to three policy issues. The first is the role of IP in what might be termed platform policies, the decisions by courts and regulators concerning whether and how to promote multi-party access to important digital platforms such as media player hardware, cell phones, PCs, and the like. I argue that for the most part there is no need for IP law to directly promote interoperability, since market competition among competing platform technology owners will usually protect consumers quite well. Voluntary interoperability at various levels is the norm, an arrangement facilitated by the fact that property rights can and often are waived for strategic reasons. The apparent potential of IP law, and individual IP rights, to restrict access and harm consumers must therefore be seen in the context of competitive battles in which IP owners very selectively enforce their rights. Where coerced access through IP rules does prove necessary, it should be promoted sparingly and strictly ex post, only after rights have issued and their deployment and enforcement are shown to create anticompetitive effects. Second, I discuss optimal policy with respect to platform-content combinations, e.g., the question of whether to regulate or prohibit exclusive content licensing for a single platform, for example, the Apple iTunes/iPod system. Again I argue that competition, together with the divergent interests of content and platform owners, will usually protect consumers without the need for excessive regulation of platform-content deals. Finally, I consider ways to better accommodate traditional IP doctrines and policies to the need for flexibility and openness in platform battles, in particular, the need for a robust set of rules that permit an IP owner to credibly commit to open access to IPRs with a binding full or partial dedication of IP rights to members of the public or specific sub-groups. The idea is to more fully institutionalize the right of an IP owner to implement an owned but open platform strategy. I characterize this new sort of binding commitment to openness as the right to include - by analogy with the traditional notion of property as involving at its core a right to exclude.

Dinwoodie on International Intellectual Property

Graeme B. Dinwoodie (Chicago-Kent College of Law) has posted The International Intellectual Property System: Treaties, Norms, National Courts, and Private Ordering (THE INTERNATIONAL INTELLECTUAL PROPERTY SYSTEM: TREATIES, NORMS, NATIONAL COURTS, AND PRICATE ORDERING, in Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPS Plus Era, D. Gervais ed., Oxford University Press 2007) on SSRN.  Here is the abstract:

Although part of the political impetus for international intellectual property law making has long come from the economic gains that particular countries could secure in the global market, the recent situation of intellectual property within the institutional apparatus of the trade regime has been an important factor in the transformation of the classical system of international intellectual property law. This chapter analyses various aspects of this transformation. It suggests that viewing intellectual property through the prism of trade alone offers an incomplete explanation of the changes that have occurred in international intellectual property law making. For example, a full account of the contemporary system must reflect the role of both litigation in national courts and private ordering by commercial actors in establishing international intellectual property norms. This chapter stresses that these new contributors to the international system must be subject to no lesser scrutiny than traditional public international instruments such as treaties. The chapter also discusses the increasingly quick resort to international institutions in the field of intellectual property law. To ameliorate the costs associated with the speedy development of international rules, and perhaps to ensure that some international solution is adopted, policy makers have begun more overtly to support the adoption of soft law norms rather than hard law treaty obligations. In response, those skeptical of these trends in international intellectual property law making have sought to slow down the process or bring it to a complete halt. In order to achieve a political climate where public international law imposes fewer constraints on national law makers (particularly law makers in developing countries), skeptics have adopted a number of strategies, including the multiplication of international institutions in which intellectual property is considered, and the concomitant development of a range of rival norms that have massively complicated the political economy of public international intellectual property law. Using examples drawn primarily from copyright and trademark law, I illustrate the pressure to accelerate internationalization, the varying strength of adopted norms, and the changes to the political climate in which public international law making is occurring. To some extent, these changes reflect increased political and popular attention to trade and development. However, regardless of the catalyst, these systemic changes remain crucially important to trade and development because of the entanglement of intellectual property with trade and development policy.

Barrnon on Copyright & the Lifeword

Anne Barron (London School of Economics & Political Science (LSE) - Department of Law ) has posted Copyright Infringement, 'Free-Riding' and the Lifeworld on SSRN.  Here is the abstract:

The dominant explanatory/justificatory framework informing scholarly commentary on copyright law, policy and theory today - certainly in the US - is law and economics. From this perspective, copyright law exists to underpin markets in certain categories of 'information good' (copyright works). These markets in turn function to ensure that the private costs and benefits of information production and consumption line up (more or less) with the social costs and benefits of these activities, ie that 'free-riding' on the efforts of information producers is (more or less) curtailed. A widely held view is that this tradition of what might be called 'copyright-law-and-economics' is now deeply divided - between adherents to what Glynn Lunney has called 'copyright's incentives-access paradigm' on the one hand, and proponents of what Mark Lemley has called the 'full value' or 'absolute protection' paradigm on the other. Absolute protection theorists tend towards the view that all uses of copyright works should be capable of being controlled (and so priced) by the right-owner; incentives-access theorists distinguish between uses the control of which would affect the information producer's incentives ex ante, and those that would not, and recommend that copyright protection should extend to the former category only. This paper examines the features that are said to distinguish the two paradigms from each other, focusing especially on the approach each recommends to copyright's scope (ie the issue of what uses of copyright works properly constitute copyright infringements). Particular attention is paid to the efforts of critical economists of intellectual property law such as Lemley and Brett Frischmann to retrieve and advance versions of the incentives-access paradigm with a view to counteracting the disadvantages for society they believe are associated with the absolute protection paradigm. Ultimately, however, I conclude that too much has been made of the distinction, and that the debate over which paradigm should have priority in determining the contours of copyright policy distracts attention from a more fundamental issue - the hegemony of economic analysis generally in organising the conceptual and normative universe of legal scholars working in this area. Thus while sympathetic to the impulse underlying the efforts of Lemley and Frischmann - a concern to resist the seemingly relentless expansion of copyright towards the horizon of absolute right-holder control of all uses of copyright material - I argue that their lingering adherence to the presuppositions of economic analysis has stymied their well-meaning efforts to account for the social value of 'information' in terms distinct from the merely economic measure of price. My overall aim here is to suggest that, because of its presuppositions, economic analysis - in whatever paradigm it may be packaged - offers at best a blinkered perspective on both copyright law and the field of social life that copyright law affects. I conclude by proposing Jurgen Habermas's social theory as an alternative framework in relation to which critics of copyright expansionism might fruitfully orient themselves in the future.

Yu on IP Coalitions for Development

Peter K. Yu (Drake University Law School) has posted Building Intellectual Property Coalitions for Development (IMPLEMENTING WIPO'S DEVELOPMENT AGENDA, Jeremy de Beer, ed., IDRC, 2008, Centre for International Governance Innovation Working Paper No. 3) on SSRN.  Here is the abstract:

The adoption of the WIPO Development Agenda in October 2007 has provided less developed countries with a rare and unprecedented opportunity to reshape the international intellectual property system in a way that would better advance their interests. However, if these countries are to succeed, they need to take advantage of the current momentum, coordinate better with other countries and nongovernmental organizations, and more actively share with others their experience, knowledge, and best practices.

Commissioned by the EDGE (Emerging Dynamic Global Economies) Network of the University of Ottawa, this paper begins by explaining how building intellectual property coalitions for development (IPC4D) can help less developed countries strengthen their collective bargaining position, influence negotiation outcomes, and promote effective and democratic decision making in the international intellectual property regime. The paper then discusses four coordination strategies that can be used to develop these coalitions. It concludes with a discussion of the various challenges confronting the creation and maintenance of these coalitions.

Dolak on the Inequitble Conduct Defense in Patent Law

Lisa A. Dolak (Syracuse University - College of Law) has posted Inequitable Conduct: A Flawed Doctrine Worth Saving on SSRN.  Here is the abstract:

A growing chorus of voices is calling for reform or even elimination of the doctrine of inequitable conduct. Critics argue that innocent or even irrelevant prosecution mistakes can be met with the ultimate penalty: unenforceability of the entire patent.

There is no question the doctrine is in need of repair. Patent owners are subject to different materiality standards in the U.S. Patent and Trademark Office and the courts. Inequitable conduct charges can be based on information completely immaterial to patentability. Findings of deceptive intent are increasingly based on inference and not evidence. And the one-size-fits-all remedy of total unenforceability deprives the courts of the ability to tailor the "punishment" to the offense.

But abrogation of the defense would be a mistake, particularly as concerns about patent quality echo in the USPTO, the Congress, the courts, and the media.

This paper argues that retaining the defense is essential for maintaining the integrity of, and continuing public confidence in, the U.S. patent system. It sets forth specific recommendations for much-needed modifications designed to better serve the doctrine's essential purposes, and to ameliorate the key problems with its current application. Although these changes can be implemented by the courts, legislative action would be more appropriate, because the recommended modifications affect virtually every aspect of the doctrine, and it is unlikely that a given case or series of cases will present appropriate facts for judicial resolution in the near future.

Heald on Patent Remedies

Paul J. Heald (University of Georgia Law School) has posted Optimal Remedies for Patent Infringement: A Transactional Model on SSRN.  Here is the abstract:

In a world of zero transaction costs, one should observe optimal invention and innovation. As long as a system of enforceable contracts were in place, firms with inventive capacity and firms requiring inventions would negotiate for the optimal production of new creations. With adequate information, an observer could accurately predict which transactions would occur between firms and which transactions would not, thereby permitting description of the conditions for optimal inventiveness. Patent remedies in a world with transactions costs can be calibrated so that real firms behave as ideal firms, providing incentives for real world transactions to mimic those in a world without transactions costs. The goal of remedies for patent infringement should therefore be to provide incentives for efficient transactions to occur, while minimizing the cost of transacting. This approach sets the framework for a comprehensive revision of current patent remedies and resolves current debates over the relevance of an infringer's knowledge, independent invention, and the proper scope of injunctive relief.

Green on Copyrighting Factual Compilations

Michael Steven Green (College of William and Mary - Marshall-Wythe School of Law) has posted Two Fallacies about Copyrighting Factual Compilations (INTELLECTUAL PROPERTY PROTECTION OF FACT-BASED WORKS: COPYRIGHT AND ITS ALTERNATIVES, Robert Brauneis ed., Edward Elgar Press, Forthcoming ) on  SSRN.  Here is the abstract:

In this essay, I identify two fallacies concerning the copyrightability of factual compilations. The first is that facts cannot be copyrighted because they are not independently created. I argue that once facts are properly understood as content, rather than reality, the independent creation requirement does not stand in the way of their copyrightability.

The second is the fallacy of division. This occurs when one wrongly takes what is true of a whole to be true of some or all of its constituents. An example is the assumption that if we are conscious, some or all of our cells must be conscious as well. The fallacy of division expresses itself in copyright law in the assumption that if a factual compilation is copyrightable, there must be some constituents of the compilation that are copyrightable as well. Since the individual facts out of which the compilation is composed cannot be these copyrightable constituents, courts assume that they are instead the compilation's selection and arrangement of facts. 

I argue that such an approach to factual compilations is incoherent. Under the pressure of analysis, selections and arrangements themselves dissolve into uncopyrightable components - the submethods out of which selections and arrangements as a whole are composed. One can consider selections and arrangements to be copyrightable only if one sets aside the fallacy of division and looks at selections and arrangements in the aggregate to determine their copyrightability, without attempting to find some component of them that is copyrightable. But once one has set aside the fallacy of division with respect to a compilation's selection and arrangement, there is no reason not to do the same with respect to its factual content. 

I call an approach that determines the copyrightability of a compilation by looking to the collective factual content communicated by the compilation, rather than the compilation's selection and arrangement, the collective fact approach. The collective fact approach is in keeping with the way that fictional works are treated under copyright law. Although the individual elements out of which a novel's plot, scenes, and characters are composed are unprotected, no one would say that the copyrightable part of a novel is its selection and arrangement of these elements. One determines copyrightability by looking to the collective content of the novel itself - its plot, scenes, and characters. A factual compilation, I argue, should be assessed on the basis of whether its collective factual content is copyrightable.

Cotropia & Lemley on Copying in Patent Law

Christopher Anthony Cotropia and Mark A. Lemley (University of Richmond School of Law and Stanford Law School) have posted Copying in Patent Law on SSRN.  Here is the abstract:

Patent law is virtually alone in intellectual property (IP) in punishing independent development. To infringe a copyright or trade secret, defendants must copy the protected IP from the plaintiff, directly or indirectly. But patent infringement requires only that the defendant's product falls within the scope of the patent claims. Not only doesn't the defendant need to intend to infringe, but the defendant may be entirely unaware of the patent or the patentee and still face liability. 

Nonetheless, copying does play a role in some subsidiary patent doctrines. For example, the question of whether patent damages should be set in order to deter infringement depends critically on whether infringers are in fact aware they are infringing, or at least that they are using the plaintiff's technology. Copying - or at least intent to infringe - is also an element of claims for indirect infringement. The definition of "willful infringement" also turns on the question of culpability, at least in the popular understanding of that term. More significantly, the rhetoric of patent law (and of IP law more generally) often seems to presuppose that defendants in patent cases are in fact engaged in copying. Similarly, the outcome of public policy debates over patent reform may well turn on the perception of patent infringers as either bad actors or as innocent businesspeople who accidentally ran afoul of a patent. 

Unfortunately, no one seems to know whether patent infringement defendants are in fact unscrupulous copyists or independent developers. In this paper, we seek to answer that question. Because copying is not an element of any patent cause of action, courts do not normally make explicit findings as to whether defendants have copied. Instead, we turn to a variety of proxies to try to identify the subset of cases in which copying is alleged or proven. We look both at the allegations made in a random sample of complaints and at the treatment of copying in recent reported decisions. We find that a surprisingly small percentage of patent cases involve even allegations of copying, much less proof of copying. Copying in patent law seems to be the exception, not the rule.

Recommended.

Oliar & Sprigman on IP Norms & Standup

Dotan Oliar & Chris Sprigman (University of Virginia - School of Law) have posted The Emergence of Intellectual Property Norms in Stand-Up Comedy on SSRN. Here is the abstract:

In this paper, we analyze how stand-up comedians protect their jokes using a system of social norms. Intellectual property law has never protected comedians against theft. Initially, jokes were effectively in the public domain, and comedians invested little in creating new ones. In the last half century, however, comedians have developed a norms-based IP system. This system serves as a stand-in for formal law, and regulates authorship, ownership, transfer, and the imposition of sanctions on norms violators. Under the norms system, the level of investment in original material has increased substantially. We detail these norms, which often diverge from copyright law's defaults. Our description is based on interviews with comedians, snippets of which we include throughout the paper.

Our study has implications for intellectual property theory and policy. First, it suggests that the rules governing a particular creative practice affect not only how much material is created, but also the content of the work produced. Second, we suggest that the norms-based intellectual property system emerged over the past half century as technological change increased the benefit of having property rights in jokes and concomitantly reduced the costs of enforcing those rights. Third, we note that stand-up's norms system recognizes only a limited set of forms of ownership and transfer. We suggest that the system's crude rights structure is driven by the fact that effective enforcement requires that ownership be clear to the community.

We acknowledge that stand-up's norms system presents both benefits and costs, which we detail in the paper. However, norms-based intellectual property systems offer an alternative cost/benefit bundle which in some cases may be superior to that of formal law. One attractive feature of IP-related social norms is that they offer a way to regulate creative practices that do not sit well within IP law's one-size-fits-all mold. They do so, moreover, without imposing on society the costs of disuniformity in the formal law, including legal complexity and industry-driven lobbying. In stand-up's case, the social norms system economizes on enforcement costs and appears to maintain a healthy level of incentives to create alongside a greater diversity in the kinds of humor produced. A final assessment of stand-up's social norms system awaits further work. With what we currently know, we are cautiously optimistic.

And from the paper:

The major norm that governs the conduct of most stand-up comedians is a strict injunction against joke-stealing. Our interviewees agreed that appropriating jokes from another comedian is the major no-no in the business; many of our interviewees referred to joke-stealing as a “taboo”. This norm is so fundamental that a popular guide for new stand-ups, The Comedy Bible, puts the following as the first of its Ten Commandments to the novice: “Thou shalt not covet thy neighbor’s jokes, premises, or bits.”77 Other “how to” guides convey the same message.78 Our interviewees were adamant that instances of joke-stealing, and the confrontations that often follow them, are not very prevalent. From our interviews we got the sense that a comedian is unlikely to be a party to more than a very few confrontations in her entire career. When they occur, confrontations are, for the most part, brief, civil, and effective in putting an end to the dispute. Interviewees told us that recidivism is rare, and persistent joke-stealing is limited to a few bad actors who are identified as such in the community.

I loved this fascinating, well-written, and amusing paper--that also makes a very serious and important point.  Highly recommended.  Download it while its hot!

Madison, Frischmann, and Strandburg on Commons & the Cultural Environment

Michael J. Madison, Brett M. Frischmann and Katherine J. Strandburg (University of Pittsburgh - School of Law , Loyola University of Chicago - Law School and DePaul University - College of Law) have posted Constructing Commons in the Cultural Environment on SSRN. Here is the abstract:

This Essay considers the problem of understanding intellectual sharing/pooling arrangements and the construction of cultural commons arrangements. We argue that an adaptation of the approach pioneered by Elinor Ostrom and collaborators to commons arrangements in the natural environment may provide a template for the examination of constructed commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environment(s) within which they are embedded and with which they share interdependent relationships. Such an improved understanding is critical for obtaining a more complete perspective on intellectual property doctrine and its interactions with other legal and social mechanisms of governing creativity and innovation. We propose an initial framework for evaluating and comparing the contours of different pooling arrangements with an eye toward developing an understanding of the institutional and structural differences across arrangements and industries as well as the underlying contextual reasons for such differences. The proposed approach would draw upon case studies from a wide range of disciplines. Among other things, we argue that a theoretical approach to cultural constructed commons should consider rules pertaining to membership criteria, contribution and use of pooled resources, internal licensing conditions, management of external relationships, and institutional forms along with the degree of collaboration among members, sharing of human capital, degrees of integration among participants, and whether there is a specified purpose to the arrangement.

Highly recommended.