Dinwoodie and Cooper Dreyfuss, ‘Brexit and IP: The Great Unraveling?’

… We ask a different question: we explore how well the rhetoric of Brexit comports with the reality and the institutional economics of nation-state lawmaking in an era of global trade and digital communication technologies. We use intellectual property (IP) law as a concrete example. We think it a good context in which to consider the impact of the UK’s exit from the EU. Copyrights are deeply intertwined with culture and education, patents have significant implications for health and safety, and trademark law sets the rules of the road for the marketplace in products and services. What is more, the public, judges, and legislators have come to realize just how much IP law – technical though it may appear – can interfere with access to things that are critical to their lives …

Graeme B Dinwoodie and Rochelle Cooper Dreyfuss, Brexit and IP: The Great Unraveling?, Cardozo Law Review Volume 39 Number 3 (February 2018).

Paul Hoversten, ‘Punishment but Not a Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law’

It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects ‘vindication of the public justice’ rather than ‘reparation to one aggrieved’. Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no court applies the penal laws of another sovereign. This Note argues that punitive damages are penal in the choice-of-law sense, and state courts violate the penal exception when they impose punitive damages under or alongside foreign substantive law. It proposes several possible means to resolve this dissonance and ultimately concludes that courts should altogether eliminate the prospect of punitive damages when they impose liability under foreign substantive law.

Paul A Hoversten, Punishment but Not a Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Michigan Law Review Volume 116 Issue 5 (2018).

Wittlin, Ouellette and Mandel, ‘What Causes Polarization on IP Policy?’

Polarization on contentious policy issues is a problem of national concern for both hot-button cultural issues such as climate change and gun control and for issues of interest to more specialized constituencies. Cultural debates have become so contentious that in many cases people are unable to agree even on the underlying facts needed to resolve these issues. Here, we tackle this problem in the context of intellectual property law. Despite an explosion in the quantity and quality of empirical evidence about the intellectual property system, IP policy debates have become increasingly polarized. This disagreement about existing evidence concerning the effects of the IP system hinders democratic deliberation and stymies progress …

Wittlin, Maggie and Ouellette, Lisa Larrimore and Mandel, Gregory N., What Causes Polarization on IP Policy? (March 13, 2018). UC Davis Law Review, forthcoming.

Liam O’Melinn, ‘The Ghost of Millar v Taylor: The Mythical Common Law Origins of Copyright and the Copyright Servitude’

The Ghost of Common Law Copyright walks abroad once more, relishing the prospect of ‘the next great copyright act’ and tempting us to inquire anew whether the origins of copyright are to be found in the common law. Despite being answered time and again in the negative, this question preys upon modern sensibilities predisposed to the view that artists who painted on the walls of ancient caves had a primordial right to prevent ‘pirates’ from copying their works. The belief that the common law has always provided creators with a right against unauthorized reproduction is quietly but increasingly influential, and it has helped to propel copyright law toward limitless expansion. According to the common-law view, most famously expressed in Millar v Taylor in England in 1769, this right antedates any positive enactments made on its behalf, and the earliest copyright statutes simply secured or augmented rights already in existence. Millar was overruled in Donaldson v Becket in 1774, but its spirit has lingered on, haunting the legal landscape of copyright. This theory has served as the basis of an increasing tendency toward the retrospective creation of property in nearly any ‘subject matter’ – as this copyright theory describes cultural exchange – that is perceived to be of potential value. The common law view has made its influence felt in a distension of culture, a distortion of the law, and a tendency to create a boundless form of property. This property without bounds, in turn, is justified by the recursive insertion of an author or creator whose original right provides the ostensible basis of current title …

O’Melinn, Liam, The Ghost of Millar v Taylor: The Mythical Common Law Origins of Copyright and the Copyright Servitude (March 11, 2018).

Rob Batty, ‘Loss of Property Ownership and Registered Trade Mark Law’

It is difficult for the ownership of a tangible item of personal property to be involuntarily lost. Ongoing ownership is not tied to use of an item. It is generally thought, though, that ownership can be voluntarily abandoned. Abandonment then frees up an item to become owned by another. Although a registered trade mark is a species of personal property, the law regarding the loss of ownership and ‘re-ownership’ of a registered trade mark, diverges from this general personal property model. This article explains this divergence, and how registered trade mark law’s different approach to re-ownership is caused by the recognition of other independent protection mechanisms for trade marks. The article then critically evaluates the law’s current operation concerning loss of ownership in light of the position under personal property law and the underlying justifications for trade mark protection.

Batty, Rob, Loss of Property Ownership and Registered Trade Mark Law (January 9, 2018). Australian Intellectual Property Journal (forthcoming).

Marc Ginsberg, ‘Informed Consent: No Longer Just What the Doctor Ordered? Revisited’

As the law of informed consent has developed and courts have recently considered different informed consent issues unrelated to the typical required disclosure. In light of these decisions, I have concluded that it is time to revisit the unconventional and other selected topics of informed consent.

Ginsberg, Marc, Informed Consent: No Longer Just What the Doctor Ordered? Revisited (February 13, 2017).

Čadjenović, Miscenic, Dabović-Anastasovska, Dollani, Gavrilović, Mirić, Meškić and Zdraveva, ‘EU Consumer Contract Law’

The Report gives an in depth analysis of implementation of EU Directives on consumer protection into six countries of South East Europe. In the Part 1, the team presents an overview of the legislative techniques of each participating state which has been prepared by the respective national reporter. The Part 2 demonstrates the transposition of the individual directives in the six countries. Due to lack of space it has unfortunately not been possible to publish the corresponding national reports. Instead, this publication contains a comparative analysis on the four directives which is, however, based on the national reports and can be considered as their synthesis. This approach has the great advantage that the reader has at his disposal a comparative survey which clearly shows the similarities and differences in the way the four directives have been transposed in the participating states. It has also enabled the national reporters to work not only on their domestic law, but on five other legal orders as well.

Čadjenović, Zvezdan and Miscenic, Emilia and Dabović-Anastasovska, Jadranka and Dollani, Nada and Gavrilović, Nenad and Mirić, Marija Karanikić and Meškić, Zlatan and Zdraveva, Neda, EU Consumer Contract Law (March 1, 2010). Civil Law Forum for South East Europe-Collection of studies and analyses, Beograd, Zagreb, Jugoslovenski pregled, Denona doo, Vol 3, 2010, pp 407-741.

Victor Goldberg, ‘Consequential Damages and Exclusion Clauses’

Contracts often include language excluding compensation for consequential damages. However, the boundary between consequential and direct damages is a blurry one. Courts have used concepts like foreseeability, natural result of the breach, and collateral business in their attempts to define the boundary. Those categories, I argue, are not particularly helpful. I consider three classes of cases: wrongful termination, delay, and breach of warranty. This paper argues that lost profits, when referring to the change in value of the contract after a wrongful termination would be direct damages; the hard case involves terminated dealers who had been paid indirectly for retailing services by the difference between the wholesale and retail price. Claims arising from delay would almost always be characterized as consequential damages. If a seller warranted a machine would produce at a level of 100, but it only produced at 80, the seller would be liable for the difference – the consequential damage exclusion would not apply; however, some claims for breach of warranty would be for consequential damages.

Goldberg, Victor P, Consequential Damages and Exclusion Clauses (March 15, 2018). Columbia Law and Economics Working Paper No 582.

Call for Papers: 18th Annual Intellectual Property Scholars Conference (IPSC): Berkeley, 9-10 August 2018

The Berkeley Center for Law & Technology is pleased to host the 18th Annual Intellectual Property Scholars Conference (IPSC) on August 9-10, 2018. The IPSC brings together intellectual property scholars to present their works-in-progress in order to benefit from the critique of colleagues. The conference is co-sponsored by the Berkeley Center for Law and Technology, UC Berkeley School of Law; … (more)

‘Measuring Common Claims About Class Actions’

Joanna C Schwartz, The Cost of Suing Business, 65 DePaul Law Review 655 (2016). Joanna C Schwartz’s 2016 article, ‘The Cost of Suing Business’, comes out of the Clifford Symposium on Tort Law and Social Policy at DePaul University College of Law – an annual gathering now in its twenty-fourth year that, under Professor Stephan Landsman’s singular stewardship, has been the site of so much valuable inquiry. In the article, Schwartz questions a narrative that has succeeded in both Congress and the Court: that ‘class actions are the most significant scourge on business ever conjured up by man’ (P 655). In her words: … (more)

[Nora Freeman Engstrom, JOTWELL, 16 March]