Category Archives: Intellectual Property

Shyamkrishna Balganesh, ‘The Immanent Rationality of Copyright Law’

What’s Wrong with Copying? By Abraham Drassinower. Cambridge and London: Harvard University Press. 2015. Pp. xi, 272. $39.95. Why does copyright treat certain kinds of copying as legally actionable? For nearly a century, American copyright thinking has referenced a core consequentialist dogma to answer this question: incentivizing the production of creative expression at minimal social […]

Jordan Lewis, ‘The Future of Disparagement: How Trademark Law Suppresses Freedom of Speech’

Abstract: Do you want your children to live in a world where everyone is placed in a category depending on their race, gender, or economic status? A recent case concerning the Asian-American rock band ‘The Slants’ and their unsuccessful attempt to gain trademark protection where their application was denied because the examining attorney determined that […]

Barton Beebe, ‘Bleistein, the Problem of Aesthetic Progress, and the Making of American Copyright Law’

Abstract: This Article presents a revisionist account of the 1903 Supreme Court case Bleistein v Donaldson Lithographic Co and the altogether decisive and damaging influence it has exerted on the making of modern American copyright law. Courts and commentators have long misunderstood Justice Holmes’s celebrated opinion for the majority in Bleistein in two fundamental ways. […]

Bowrey and Graham, ‘The Placelessness of Property, Intellectual Property and Cultural Heritage Law in the Australian Legal Landscape: Engaging Cultural Landscapes’

Abstract: Australia has an appalling history of dispossession of Aboriginal and Torres Strait Islander (ATSI) Peoples and recognition of this motivates research that seeks to advance Indigenous rights by amending Australian laws in ways that better connect property, people and culture to place and environment. The ambition is often to open up the Australian legal […]

Robert Merges, ‘Against Utilitarian Fundamentalism’

Introduction: I was tempted to pull punches in the title of this piece, but I thought better of it for three reasons. First, the essay I am responding to – ‘Faith-Based IP’ (‘FBIP’) — itself pulls no punches. Second, the title I chose captures what I want to say. Third, I am an inveterate punch […]

Adam Mossoff, ‘Trademark as a Property Right’

Abstract: Although trademark is a property right, the conventional wisdom among modern commentators and prominent judges is that it is only a regulatory entitlement that promotes consumer welfare. This essay fills a lacuna in modern trademark theory by identifying how and why nineteenth-century courts first defined trademark as a property right, and how this explains […]

‘Is It Time to Examine the Concept of Originality in Musical Works?’

Emma Steel, Original Sin: Reconciling Originality in Copyright with Music as an Evolutionary Art Form, 37 European Intellectual Property Review 66 (2015). Copyright often makes little sense, particularly when you explain it to people who are not familiar with its concepts. Jessica Litman expresses this problem well in her book Digital Copyright by stating that […]

Elizabeth Rosenblatt, ‘The Great Game and the Copyright Villain’

Abstract: This essay explores the reactions of Sherlock Holmes fans and enthusiasts to assertions of intellectual property ownership and infringement by putative rights holders in two eras of Sherlockian history. In both the 1946-47 and 2013-15 eras, Sherlock Holmes devotees villainized the entities claiming ownership of intellectual property in Holmes, distancing those entities from Sir […]

Bechtold and Engel, ‘The Valuation of Moral Rights: A Field Experiment’

Abstract: US intellectual property law is firmly rooted in utilitarian principles. Copyright law is viewed as a means to give proper monetary incentives to authors for their creative effort. Many European copyright systems pursue additional goals: Authors have the right to be named as author, to control alterations and to retract their work in case […]

John Golden, ‘Reasonable Certainty in Contract and Patent Damages’

Abstract: In the face of difficult-to-quantify private-law harms, courts commonly apply standards of reasonableness in assessing whether asserted damages have been proven with adequate certainty. In contract cases in particular, courts have a historical reputation for being demanding in applying a requirement of ‘reasonable certainty’ for compensatory damages. Contract law’s reasonable certainty standard provides useful […]