The text below represents commentary, not legal advice.
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Critical Copyright, and more.
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Paul Edward Geller, attorney.
Keynote talk at the
meeting of the International Association for the Advancement of Teaching and
Research in Intellectual Property (ATRIP) in Montreal in July of 2005. Published in the European Intellectual
Property Review, vol. 28 (2006), p. 139, and in Intellectual Property: Bridging Aesthetics and Economics
(Thémis, 2006), proceedings of the ATRIP meeting, edited by Ysolde Gendreau.
Copyright © Paul Edward Geller 2006.
Also published in translations in GRUR Int. (2006),
p. 273 (German), Propriétés
intellectuelles, no. 18 (2006), p. 4 (French), and Intellectual Property
Studies, no. 18 (2007), p. 17 (CASS IP Center) (Chinese). For their
comments, I thank James Boyle, Robert Donovan, Bernard Edelman, Ejan Mackaay,
Emil Markov, Jerome Reichman, Mark Rose, Pamela Samuelson, Joshua Sarnoff,
Michael H. Shapiro, William Snow, and Hanns Ullrich.
Dissolving
Intellectual Property
Paul Edward Geller
Our theme at this ATRIP meeting is: intellectual property
bridging aesthetics and economics. Copyright law evokes aesthetics; patent law,
technologies. These laws are supposed
to enhance our aesthetic and technological wealth.[1] They aim at
this goal by attempting to influence the economics of cultural goods.
I shall try to take a long view of this attempt. First, I shall ask: How did the classic laws of copyright and
patents crystallize? Second, I shall
argue that the structures of these laws have been dissolving over time. Third, I shall indicate a few of the many
lines of inquiry that are opening up.
As we all know, property calls for boundaries. These indicate who owns what and where their
rights begin and end. A property law may
be said to crystallize as it helps us to draw these boundaries clearly and
coherently. How have the classic laws of
copyright and patents come to do this job?
Think back in history.
After the fall of the Roman Empire, culture, especially technology,
flowed from Asia into Europe.[2] A critical
mass was reached in the Renaissance, and printing acted as a catalyst. In early modern Europe, publishers and
pirates became hubs for spreading culture, as did scholarly associations and
mobile artisans.[3] At the same
time, the Church, the guilds, the State, new enterprises, and individual
creators squabbled over new cultural goods.[4]
Here we face the problem of public goods. It is difficult to exclude others from
enjoying such goods. And, though used by
one person, they tend to remain available to others.[5] For example,
once I publish a poem, others can enjoy the poem again and again. Progress in the media, notably in
information-processing, can facilitate sharing cultural goods.[6] These then
approach ideal public goods more closely.
We just saw print make texts more accessible. Open science makes technologies more
available.[7]
Professor Mackaay explains one rationale for property rights:
they assure markets in public goods.
They are to provide incentives for creation and dissemination, but
without restricting competition.[8] In the
eighteenth century, the overall structure of the classic civil law started to
crystallize. That law vested private
individuals with property rights that could be freely alienated in the public
marketplace.[9] Any property law has to draw
boundaries determining who holds rights and the matters subject to these
rights. It also has to structure
boundaries relating right-holders and subject-matters to the rest of the world.[10]
The classic laws of copyright and patents
also crystallized in the eighteenth century.
How did they draw boundaries determining the holders and subject-matters
of rights? Individual authors originating texts and images were vested with
copyrights; inventors, with patents upon issuance.[11] Classically,
copyright protected texts that could be printed or performed and images that
could be engraved. A patent protected
only a new technology that a patent applicant disclosed, ultimately on the
public record.[12]
Turn to boundaries relative to the rest of the world. Of course, right-holders could control
embodiments, like writings or machines, through first sale. Further, the holder of copyright in a text or
image could stop others from copying and communicating the text or image to the
public, but not from translating or transforming it.[13] The holder of
a patent could stop any subsequent inventor of the same technology from making
and marketing that technology.
Advance to the nineteenth and twentieth centuries. Steam started to move manufacturing and
transport more quickly; applied science, to drive research laboratories; the
media, to reach the masses.
Increasingly, industrialization called for progress in
information-processing.[14]
At the same time, the overall structure of the civil law lost its
classic clarity and coherence. It
adapted to pressures brought by industry, labour, consumers, and other interest
groups.[15] As part of the civil law,
copyright and patent laws have undergone such pressures as well. In addition, these laws have faced special
stresses arising out of progress in information-processing.[16] Are the laws
of copyright and patents still doing their job of drawing boundaries? Let’s ask this question at three levels:
right-holders, subject-matters, and the rest of the world.
First, who has come to hold rights? Classically, authors and inventors worked
alone or in small groups. Since the
nineteenth century, creators and innovators have collaborated in ever-larger
teams. Of course, individuals can
communicate with each other through open markets. But, as Ronald Coase suggests, where markets
fail to organize labour efficiently, firms take over.[17]
With the industrial revolution, firms had to invest more intensively. They needed property in assets such as
copyrights and patents that could serve as capital. And they coordinated teams, for example, to
make film epics and to manage large-scale research. The courts had begun to hedge on the classic
principle of vesting rights in individual authors and inventors.[18] The firms
easily had rights allocated to themselves, either as corporate creators or by
contract.
This shift in right-holders has recently taken a new twist. The Internet allows individuals to collaborate
worldwide. Without firms as principals,
individuals create music, videogames, and software online. We have yet to draw precise boundaries among
networked claimants.[19]
Move on to the second level:
What is to be protected?
Classically, writings and machines provided examples for our notions of
works and inventions. In the nineteenth
century, industrial-property offices increasingly purported to sort out diverse
products of mind.[20] But neither
our familiar examples nor our bureaucrats have helped to take account of
increasingly larger and varied information flows.
In theory, we distinguish subject-matters from rights. In practice, the notions of works and
inventions have become open-ended as rights have expanded. For example, classically, copyright protected
a French novel only in its French text.
From the nineteenth to the twentieth century, the translation right was
recognized. Copyright in our novel then
applied to all the texts translating the novel into languages worldwide.[21] By analogy,
rights were elaborated in derivative works: for example, copyright in our novel
extended to a work of the cinema adapted from the novel. At much the same time, courts started to find
infringement in the making and marketing of inventions functionally equivalent
to those patented. They stretched patent
rights over ever-larger sets of technologies.[22]
Boundaries between types of subject-matters have been
blurred. In the nineteenth century,
industry discovered design. Professor
Reichman has shown how new rights of intellectual property started to emerge.[23] From the
nineteenth through the twentieth century, legislators fashioned rights in
designs, utility models, semiconductor topographies, plant varieties: the list
goes on and on. Let us adapt an insight
from critical philosophy: Ideas without facts are empty, and data without
algorithms are blind.[24] Copyright and
patent laws no longer suffice to draw boundaries among mixes along the spectrum
from ideas to facts, much less at the margins.
For example, we vacillate about what rights to assure, and what to
protect, in databases and computer programs.[25]
We touched first on right-holders; second, on
subject-matters. This brings us to the
third level: How to draw boundaries
relating holders and subject-matters of rights to the rest of the world? We spoke of crystallization to evoke overall
structures in the classic laws of copyright and patents. Now we resort to earthy metaphors: rights
form thickets, and rules become muddy.
What is a rights thicket?
A rights thicket forms as property claims overlap. Creative endeavours can then go forward only
with an increasing number of licenses.[26] We just
indicated how right-holders are regrouping, subject-matters inflating, and
rights proliferating. Consider software
elaborated by networked creators and innovators. Each of these claimants could sue to enjoin
derivative works or equivalent inventions and hold up new software.[27] Rights thus no
longer facilitate marketing, but rather block competition.
What are muddy rules?
Muddy rules are articulated in vague notions or in uncertain conditions.[28] Of course, all
law contains indeterminate rules: that is why we need courts. But as rules become unworkable, the
jurisprudence of a field spirals out of control. Since the nineteenth century, courts have
been trying to delimit subject-matters and rights of intellectual
property. They distinguished between
ideas and copyright expressions and required non-obvious steps in patentable
inventions.[29] At the same
time, they generated the most esoteric doctrines in our field.
Globalization compounds all these trends. We are caught in rights thickets, and slip on
muddy rules, in hundreds of jurisdictions at a time. I have argued elsewhere that choosing one or
a few among hundreds of applicable laws risks arbitrary results in cyberspace.[30] There are also
industrial-property offices scattered across the world, only complicating the
difficulties of securing rights across borders.
Centuries ago, technological development was slow and local enough that
delay in patenting abroad was tolerable.
Now, industry is faced with the choice:
Either pay the costs and endure the delays of applying to offices
worldwide. Or, with defensive
publication, waive patents and block competitors from patenting.[31]
When I started thinking about this talk, I tried its title out on a colleague, and he
responded: “Well, Paul, dissolution rhymes with evolution.”[32]
How, as researchers, shall we move forward from this critical
juncture? How to move from the
dissolution to the evolution, or metamorphosis, of intellectual property? To begin, distinguish between easy and hard
cases.
Suppose that you create a comic strip. Illicitly, I republish your comic strip,
without creatively transforming or adding to it. Before stopping me, a court need not
disentangle your contributions from mine: I have contributed nothing. Damages are obvious: your market has been
usurped by my use.
Now turn to a hard case.
Suppose that I develop software for a web-based videogame. Suppose, too, that end-users introduce, into
my game, characters improvised from your comic strip. And some players improve on my software to
make it faster and more complex. What
relief may we expect from the courts?[33]
Courts may grant property or liability remedies.[34] A court easily
orders trespassers off land, that is, off real property. But to tailor this injunction, the court
needs to know the boundaries of the property at issue. In our case, the court may ask: How to disentangle the players’ contributions
to aesthetic and technological wealth from ours? Have they improvised on more than age-old
mythic heroes or routine software modules that we had merely adapted? Should their contributions be enjoined? Should they merely pay us money?[35]
This approach changes our perspective on subject-matters. It seems too late to string bridging
categories between works and inventions.
Classically, property did not arise in abstract ideas or raw facts. Nor is it self-evident that we should protect
every mix in the spectrum of subject-matters.[36] We may ask:
What remedies are appropriate against creative takings of specific mixes? Start with texts: If you may not stop me from
critically quoting one of your articles, why should you be able to stop me from
creatively transforming the article?[37] May you have
me enjoined from using footnote references taken from all your articles posted
on a website, effectively a database? Go
on to technologies: such inquires may be pursued for designs, computer
programs, genetic sequences, and so forth.
When should courts stop innovators from exploiting advances in these
fields?[38]
In such cases, courts may refrain from enforcing property with
injunctions, but they still have the task of assessing monetary liability. A case becomes especially hard if, creatively
or innovatively recasting a claimant’s product of mind, a user addresses wholly
new markets. The claimant, not having
incurred any damages on its established market, may seek to share in the user’s
profits on new markets. In doing so, the
claimant might well overreach to recoup benefits that it did not itself
generate.[39] It begs the question to look to
the civil law or equity for measures of the price to pay. The question puts boundary issues at the
heart of our field to the test of economics.
Monetary awards inevitably transfer wealth and power among market
players. Courts, in assessing awards,
influence investments in creation and innovation. Should they make the claimant whole or
simulate the marketplace?[40]
Legal changes take place in institutional contexts. Of course, we researchers in intellectual
property share a professional bias in favour of solving all problems with the
law. However, subjectively, creative
communities can only tolerate so much of our lawyering without feeling threats
to their spontaneity. Objectively, the
world has only limited resources for giving an ever-larger humanity, with
ever-more complex concerns, its day in court.[41]
Intellectual property illustrates these subjective limits. We speak of the “private” recasting of
“public-domain” materials, but boundaries here are in flux.[42] The poet’s
garret, the inventor’s workshop, even the corporate studio or laboratory, were
largely private spaces. To shelter such
spaces for creative endeavours, fair and research uses have been exempted from
liability.[43] But these
limitations tend to be so subtle or complicated that creators often do not pay
much attention to them. Further,
creative endeavours are increasingly moving into quasi-public networks in
cyberspace.[44] Creators are
resorting to sharing and other self-help arrangements.[45] For example,
open-source licensors waive claims in resulting software.[46] This model has
been adapted to other fields, such as biotechnology.[47]
We touch here on the objective limits of institutions. Consider a pair of examples, one concerning
copyright and the other, patents. With
regard to copyright, the marketplace is increasingly outflanked by new
networks.[48] On the Internet, claims are
asserted at levels ranging from service providers down to end-users.[49] At some
levels, for example, in encryption efforts, there are risks of constricting
feedback, on which creation thrives. At
other levels, for example, in cases of file-sharing, there are risks of
endangering privacy interests.[50] With regard to
patents, industrial-property offices are failing to process filings. The Internet can serve the notice functions
of such filings, and it can network legal procedures worldwide.[51] If the courts
grant fewer injunctions, parties may prefer dispute-settlement across
borders. Such procedures are being tried
in the field of trademarks and domain names.[52] We may well
ask how to institute others.[53]
It is time to conclude.
Some of you may be asking yourselves: Why no mention of
legislation? In our field, legislation
keeps increasing in complexity and scope, often to no purpose. At the centre of this over-regulation, I
submit, lie old habits of thought.
The eighteenth century applied the notion of property to writings
and machines. The nineteenth and
twentieth centuries have elaborated this notion, albeit with increasing
disarray before our increasing wealth of information. Only in the easy cases of literal or close
copying do laws of intellectual property still seem to help us draw clear and
coherent boundaries.
Is our notion of intellectual property obsolete? I have touched on lines of research that move
from this theoretical question to more practical inquiries. For example, when to enjoin? How to assess monetary awards? When not to protect? How to globalize settling disputes? You have, I’m sure, other questions, perhaps
along these lines.
[1] See, e.g.,
U.S. Constitution, art. I, § 8, cl. 8 (“Progress of Science and useful
Arts”).
[2] See Joseph Needham, Science and
Civilization in China (Cambridge University Press, 1954), esp. vol. 1, ch.
7; Arnold Pacey, Technology in World Civilization: A Thousand-Year History (MIT
Press, 1990), esp. chs. 1-3.
[3] See, e.g.,
Robert Darnton, The Business of Enlightenment: A Publishing History of
the Encyclopedia, 1775-1800 (Harvard University Press, 1979) (recounting
how the Encyclopédie was published and pirated); Doron S. Ben-Atar, Trade
secrets: Intellectual Piracy and the Origins of American Industrial Power (Yale
University Press, 2004) (explaining how migrating workers acted as industrial
spies).
[4] See, e.g.,
Paul Edward Geller, “Copyright History and the Future: What's Culture Got to Do With
It?” (2000) 47 Journal of the
Copyright Society USA 209 at 215-28; Craig Allen Nard and Andrew P. Morriss,
“Constitutionalizing Patents: From Venice to Philadelphia”, Case Legal Studies
Research Paper No. 04-12 (April 2004)
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=585661> (analyzing
the struggles leading, respectively, to classic copyright and patent laws).
[5] See
generally Harold Demsetz, “Information and Efficiency: Another Viewpoint”
(1969) 12 Journal of Law & Economics 1 at 10-13 (indicating that assets
fall on a spectrum between private and public goods, but none are perfect
public goods).
[6] See
generally Harold A. Innis, Empire and Communications (David Godfry,
ed.) (Press Porcépic, 1986) (1950), esp. ch. 6 (illustrating how media become
information-processing tools and open up access, for example, as print did).
[7] See
generally Joel Mokyr, The Gifts of Athena: Historical Origins of
the Knowledge Economy (Princeton
University Press, 2002), esp. ch. 2 (explaining how increasingly open
scientific and technical knowledge fed industrial technologies).
[8] See Ejan Mackaay, “Economic Incentives in Markets for
Information and Innovation” (1990) 13 Harvard Journal of Law & Public
Policy 867. See also Michael Lehmann, “The Theory of Property Rights and
the Protection of Intellectual and Industrial Property” (1985) 16 International Review of Industrial
Property and Copyright Law 525 at 537 (characterizing rights of intellectual property as “restrictions
in competition in order to promote competition”).
[9] See Daniel
J. Boorstin, The Mysterious Science of the Law: An Essay on Blackstone’s
Commentaries (University of Chicago Press, 1941), ch. 9; André-Jean Arnaud,
Les Origines doctrinales du Code civil français (L.G.D.J., 1969), bk. 3.
[10] See Wesley
N. Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning (Part 2)” (1917) 26 Yale Law Journal 710, esp. at 733-34.
[11] Not without
ideological struggles! See Mark Rose, Authors and Owners:
the Invention of Copyright (Harvard University Press, 1993); Bernard
Edelman, Le sacre de l’auteur (Éditions du Seuil, 2004); Adam Mossoff,
“Rethinking the Development of Patents:
An Intellectual History, 1550-1800” (2001) 52 Hastings Law
Journal 1255.
[12] See, e.g., Christine
MacLeod, Inventing the Industrial Revolution: The English patent system,
1660-1800 (Cambridge University Press, 1988), esp. chs. 3-4 (recounting how
disclosure went from the exception to the rule of British patent law).
[13] See Augustin-Charles
Renouard, Traité des droits d'auteurs (chez Jules Renouard, 1838), vol.
2, p. 37; Augustine Birrell, Seven Lectures on the Law and History of
Copyright in Books (Rothman Reprints, 1971) (1899), ch. 6.
[14] See James
R. Beniger, The Control Revolution: Technological and Economic Origins of
the Information Society (Harvard University Press, 1986), esp. ch. 10.
[15] See
generally Jürgen Habermas, Between Facts and Norms: Contributions to a
Discourse Theory of Law and Democracy (William
Rehg, trans.) (MIT Press, 1996), ch. 9 (tracing changes in the classic
structure of the civil law).
[16] Compare Francis
Gurry, “The Growing Complexity of International Policy in Intellectual
Property” (2005) 11 Science and Engineering Ethics 13 (indicating new policy
pressures), with James Boyle, “A Politics of Intellectual Property:
Environmentalism for the Net” (1997) 47 Duke Law Journal 87 (explaining
pressures to keep intellectual property from encroaching on the public domain).
[17] See R.H.
Coase, “The Nature of the Firm” in The Firm, the Market and the Law
(University of Chicago Press, 1988), p. 33.
[18] See, e.g., Bossange
c. Monardier, Cass. (France), 8 Aug. 1793, noted by Edelman, op. cit. n.
11 above, at p. 374 (vesting copyright in the principal who ordered a
collective work, in this case the State taking rights in the Dictionnaire of
the Académie française).
[19] See
generally Yochai Benkler, “Coase's Penguin, or Linux and the Nature of the
Firm” (2002) 112 Yale Law Journal 369 (analyzing
networked collaboration and asking what allocations of interests would optimize
contributions).
[20] See, e.g., Brad
Sherman and Lionel Bently, The Making of Modern Intellectual Property Law:
The British Experience, 1760-1911 (Cambridge University Press, 1999), esp.
ch. 4 and pp. 180-93 (showing how, in British law, registration managed the
boundaries between designs, technologies, etc.).
[21] See, e.g., Lionel
Bently, “Copyright and Translations in
the English Speaking World” (1993) 12 Translatio: FIT Newsletter 491;
Martin Vogel, “Die Entfaltung des
Übersetzungsrecht im deutschen Urheberrecht des 19. Jahrhunderts” [1991]
GRUR 16 (tracing how translation rights arose, respectively, in British and
German laws).
[22] See, e.g., Joshua
D. Sarnoff, “The Historic and Modern Doctrine of Equivalents and Claiming the
Future, Part
I (1790-1870) [and] Part II (1870-1952)” (2005) 87 Journal of the Patent & Trademark
Office Society 371 and 441 (detailing the development of the doctrine of equivalents
in U.S. law).
[23] See Jerome H. Reichman, “Legal Hybrids
Between the Patent and Copyright Paradigms” (1994) 94 Columbia Law Review 2432 at 2448-2504.
[24] See
generally Immanuel Kant, Critique of Pure Reason (Werner S. Pluhar,
trans.) (Hackett Publishing Co., 1996), p. 107 (A 51 = B 75) (“Thoughts without
content are empty; intuitions without concepts are blind.”).
[25] See, e.g., British
Horseracing Board v. William Hill, E.C.J. Case C-203/02, [2005] European
Copyright and Design Reports 1 (retrenching on new rights in data).
[26] See Michael
A. Heller and Rebecca Eisenberg, “Can Patents Deter Innovation? The Anticommons
in Biomedical Research” (1998) 280 Science 698; Carl Shapiro, “Navigating the
Patent Thicket: Cross Licenses, Patent Pools, and Standard-Setting” in Innovation Policy and the Economy (Adam
B. Jaffe, Josh Lerner, and Stern Scott, eds.) (MIT Press, N.B.E.R., 2001), vol.
1, p. 119.
[27] See, e.g., SCO
Group, Inc. v. Novell, Inc., 2004 U.S. Dist. LEXIS 12267 (D. Utah, 9 June
2004); Red Hat, Inc. v. SCO Group, 2004 U.S. Dist. LEXIS 7077 (D. Del.,
6 April 2004) (U.S.) (facing challenges
to uses of network-created software).
[28] See
generally Carol M. Rose, “Crystals and Mud
in Property Law” (1988) 40 Stanford Law Review 577 (distinguishing crystalline
from muddy rules). See, e.g., Dan
L. Burk, “Muddy Rules for Cyberspace” (1999) 21 Cardozo Law Review 121
(illustrating how to deal with muddy rules, while admitting transactions
costs).
[29] Compare Ivan Cherpillod, L'objet du droit d'auteur (CEDIDAC, 1985),
and Hans Ullrich, Standards of Patentability for European
Inventions: Should an Inventive Step Advance the Art? (I.I.C. Studies,
1977) (analyzing the emergence of limiting doctrines, respectively, in
copyright and patent laws). See also Stig Strömholm, Le
droit moral de l'auteur (P.A. Norstedt & Sönners Förlag, 1966 [vol. 1],
1973 [vol. 2]) (tracing the rise of moral rights in copyright, which further
complicated matters).
[30] See Paul
Edward Geller, “International Intellectual Property,
Conflicts of Laws, and Internet Remedies” [2000] European
Intellectual Property Review 125, updated mid-2004 in (2005) 10 Journal of
Intellectual Property Rights (NISCAIR) 133, and translated in 1999 Cahiers de Propriété Intellectuelle 227 (French),
2000 GRUR Int. 659 (German), and updated mid-2004 as well in (2005) 17 Intellectual
Property Studies (CASS IP Center) 1 (Chinese).
[31] See generally Oren Bar-Gill and Gideon Parchomovsky, “The Value of Giving Away
Secrets” (2003) 89 Virginia Law Review 1857 (also pointing out that defensive
publication fosters cumulative innovation as well as the chances of
licensing).
[32] Jared R.
Margolis, Solicitor Hong Kong, over dinner, 13 Feb. 2005.
[33] See, e.g., Marvel Enters. Inc. v. NCSoft Corp., 74 U.S.P.Q.2d
1303 (C.D. Cal. 2005), also at <http://www.eff.org/IP/Marvel_v_NCSoft/> (presenting such claims).
[34] See Guido
Calebresi and A. Douglas Melamed, “Property
Rules, Liability Rules, and Inalienability: One View of the Cathedral”
(1972) 85 Harvard Law Review 1089.
[35] See, e.g., Pamela
Samuelson, Randall Davis, Mitchell D. Kapor, and Jerome H. Reichman, “A
Manifesto Concerning the Legal Protection of Computer Programs” (1994) 94
Columbia Law Review 2308 (proposing a liability regime for software).
[36] See generally Jerome H. Reichman,
“Charting the Collapse of the Patent-Copyright Dichotomy: Premises for a
Restructured International Intellectual Property System” (1995) 13 Cardozo Arts
& Entertainment Law Journal 475 at 508-17 (questioning whether new rights
in the middle of the spectrum obstruct competition).
[37] See, e.g., Paul
Edward Geller, “Hiroshige vs. Van Gogh: Resolving the Dilemma of Copyright Scope in
Remedying Infringement” (1998) 46 Journal of the Copyright Society
USA 39 at 46-70, reprinted in Dear Images: Art,
Copyright and Culture (D. McClean and K. Schubert, eds.) (Ridinghouse ICA,
2002), p. 421 (analyzing criteria for remedies for aesthetic takings).
[38] See, e.g., Jerome
H. Reichman, “Of Green Tulips and Legal Kudzu: Repackaging Rights in
Subpatentable Innovation” (2000) 53 Vanderbilt Law Review 1743 at 1777-97
(exploring remedies for incrementally innovative takings of technologies).
[39] See
generally, Mark A. Lemley, “Property, Intellectual Property, and Free
Riding” (2005) 83 Texas Law Review 1031 (questioning whether benefits received
as positive externalities should be compensated under the law of intellectual
property).
[40] Compare Reichman,
“Of Green Tulips and Legal Kudzu” loc. cit., n. 38 above (contemplating
awards to defray investment costs), with Roy J. Epstein and Alan J. Marcus, “Economic Analysis of the Reasonable Royalty: Simplification and
Extension of the Georgia-Pacific Factors” (2003) 85 Journal of the Patent
& Trademark Office Society 555 (contemplating awards of what users would pay for infringing uses to increase profits over
those attainable without the uses).
[41] See Neil
K. Komesar, Law’s Limits: The Rule of Law and the Supply and Demand of
Rights (Cambridge University Press, 2001), ch. 8.
[42] See
generally Pamela Samuelson, “Mapping the Digital Public Domain: Threats and
Opportunities” (2003) 66 Law & Contemporary Problems 147 (exploring such
boundaries as they are now changing, both de facto and de jure).
[43] See, e.g., Eugène
Pouillet, Traité théorique et pratique de la propriété littéraire et
artistique et du droit de représentation (Marchal et Billard, 3d ed.,
1908), p. 601 (“A copy made as a [private] study is exempt from remedies for
infringement.").
[44] See, e.g., Queneau c. Boue, Trib. Gr.
Inst. Paris réf. (France), 10 June 1997, J.C.P. 1997, II, 22974, note Olivier, translated
in [2000] European Copyright and Design Reports 343 (holding that the
communication of variations on poetry within a research intranet would not
infringe the right of public communication).
[45] See, e.g., Jerome
H. Reichman and Paul F. Uhlir, “A Contractually Reconstructed Research Commons
for Scientific Data in a Highly Protectionist Intellectual Property
Environment” (2003) 66 Law & Contemporary Problems 315 (analyzing the
interplay of consensual approaches and property claims in research).
[46] See, e.g., the
GNU GPL decision, Landesgericht Munich I (Germany), 19 May 2004, [2004] MultiMedia und Recht 693 (enjoining
use of software under an open-source license for failure to comply with license
conditions).
[47] See, e.g., Arti
K. Rai, “Open and Collaborative Research: A New Model for Biomedicine” in
Intellectual Property Rights in Frontier Industries: Software and Biotech
(Robert Hahn, ed.) (AEI-Brookings Press, 2005), p. 131.
[48] See, e.g., Dan
Hunter and F. Gregory Lastowka, “Amateur-to-Amateur” (2004) 46 William & Mary
Law Review 951 (analyzing how networked sharing and creative collaboration
among end-users call for rethinking copyright premises).
[49] See
generally Lawrence Solum and Minn Chung, “The Layers Principle: Internet Architecture and the Law” (2004)
79 Notre Dame Law Review 815 (arguing against Internet regulation that, from
one level, interferes with one or many other levels).
[50] See, e.g., BMG
Canada Inc. v. John Doe (2004) 32 C.P.R. (4th) 64 (Fed. Ct.)
(Canada) (finding infringement showings insufficient to identify private
end-users).
[51] See, e.g., Paul Edward Geller, “An
International Patent Utopia?” [2003] European Intellectual Property
Review 515, translated in 2004 Propriétés intellectuelles 503 (French), 2004 GRUR Int. 271 (German, and
(2004) 15 Intellectual Property Studies (CASS IP Center) 78 (Chinese)
(outlining networked notice and dispute-settlement procedures to supplant the
patent bureaucracy and much patent litigation).
[52] See
Laurence R. Helfer and Graeme B. Dinwoodie, “Designing Non-National Systems:
The Case of the Uniform Domain Name Dispute Resolution Policy” (2001) 43
William and Mary Law Review 141.
[53] See
generally Paul Edward Geller, “From Patchwork to Network: Strategies for
International Intellectual Property in Flux” (1998) 9 Duke Journal
of International & Comparative Law 69, (1998) 31 Vanderbilt Journal of
Transnational Law 553 (outlining how law-making may be globally
networked).