Category Archives: Intellectual Property

Dan Burk, ‘Punitive Patent Liability: A Comparative Examination’

Abstract Monetary damage awards and permanent injunctions have long been viewed as complementary remedies: damages typically serve as compensation for past realized harm, and injunctions serve as a restriction against future unrealized harm. But some commentary in the patent literature also argues that the potential for injunctive relief is essential to provide deterrence against opportunistic […]

Shyamkrishna Balganesh, ‘Copyright as Market Prospect’

Abstract For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts – principally trespass and negligence – in order to understand copyright’s structure of entitlement and liability. This focus on property – and harm-based torts – has altogether ignored an area of tort law with significant import for our […]

Christopher Sprigman, ‘Copyright and Creative Incentives: What We Know (And Don’t)’

Abstract The dominant justification for copyright in the United States is consequentialist. Without copyright, it is claimed, copyists will compete away the profits from new artistic and literary creativity, thereby suppressing incentives to create new artistic and literary works in the first place. This is a sensible theory. But is it true? On that question, […]

Michael Risch, ‘(Un)reasonable Royalties’

Introduction: … Part I explores the slow development of the reasonable royalties remedy. This detailed analysis provides new insights into the history that is missing in contemporary analysis. It shows that the goal of reasonable royalties was to be compensatory, applying when plaintiffs could not show other types of damages. It concludes that the calculation […]

David Brodsky, ‘General Damages and an Account of Profits – An Irish Innovation?’

Abstract This article considers the ‘orthodox’ rule requiring an election between damages or an account of profits in light of a recent Irish court decision that would appear to open the door for the granting of both remedies. Following a brief review of the background and historical development of the ‘orthodox’ view, the specific judicial […]

Gregory Mandel, ‘Institutional Fracture in Intellectual Property Law’

Abstract This Article presents an original dataset of (1) every intellectual property decision made by the Supreme Court; and (2) every intellectual property statute passed by Congress from 2002 to 2016. Analysis of the data reveals that the Court and Congress have been significantly at odds over intellectual property law during the early twenty-first century. […]

‘Crowdsourced Bibliography on IP and Distributive Justice’

“Professor Estelle Derclaye recently sparked a terrific email thread among IP professors about articles tackling IP from a distributive justice perspective. Here is a lightly edited list of the suggested works, roughly in chronological order, with links (open access, where possible) and, for somewhat arbitrarily selected works, short quotations or descriptions. If you have additions […]

Annemarie Bridy, ‘Fearless Girl Meets Charging Bull: Copyright and the Regulation of Intertextuality’

Abstract This article approaches the Fearless Girl/Charging Bull controversy as a case study in how copyright law regulates conditions of interaction between existing artistic works and new ones, in order to protect the value and integrity of the former without diminishing production of the latter. To assess the merits of sculptor Arturo DiModica’s legal claims […]

Jane C Ginsburg, ‘Intelligent Machines: Who (or What) Creates a Work of Authorship?’, Trinity College Dublin, 25 January 2018, 6-8pm

In copyright law, an author is a human being who exercises subjective judgment in composing the work and who controls its execution. But challenges arise when the putative author partners with a machine or with natural forces to create a work of authorship. Do mechanical or natural interventions in the production of a work result […]

Ashcroft and Barker, ‘Is Copyright Law Fit for Purpose in the Internet Era? An Economic and Legal Perspective’

Abstract This paper asks the question: ‘Is copyright law fit for purpose in the Internet era?’ to inform the debate on the development of a sustainable, online ecosystem from an economic and legal perspective. This paper concludes that the application of exceptions to copyright that benefit intermediary business models – combined with the limitation on […]