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Abstract:
This article presents a new method of analyzing patent reform proposals through the use of differential impact analysis. Congressional efforts to address the crisis of confidence in the U.S. patent system have failed up to the present day. If Congress is to have any hope of passing much needed legislative reform to the Patent Act, the supporters of patent reform will have to unite behind a streamlined set of proposals that directly address the most pressing and unambiguous defects of the current patent system. To that end, we have proposed applying a test of differential impact to enable Congress to prioritize those reforms which will discourage the acquisition and assertion of bad patents without unduly prejudicing the interests of the holders of good patents. The differential impact approach elucidated in this article has at least three distinct advantages over other efforts to rewrite the patent system from the ground up. First, the differential impact approach provides a mechanism by which to evaluate competing claims for legislative resources. Second, the differential impact approach is an appropriate response to the empirical uncertainty surrounding optimal patent scope. Third, differential impact is consistent with the need to take the legitimate expectations of current stakeholders into account.

Patent, law and economics, bad patents, differential impact, uncertainty, information asymmetries, post-grant review

Abstract:
This article is a broad reconceptualization of the role of fair use within copyright law. Fair use is commonly thought of as just one of many exceptions limiting copyright, in contrast, this article shows that fair use has actually enabled the expansion of copyright protection.

Fair use has an important structural role that is often overlooked. First, copyright necessarily must balance intellectual property incentives with the protection of free speech and innovation; fair use constitutes that balancing mechanism. By establishing the outer limits of copyright, fair use in fact enables an expansive interpretation of author's rights within those bounds. Second, because copyright works best by providing flexible principles that can accommodate technological changes, fair use also constitutes the mechanism by which Congress has given the courts a large policy-making role to ensure copyright's balance.

This article explains this structural function of fair use, then shows how this theory should and does apply. In doing so, it also identifies two broad trends emerging in the case law that have previously not been recognized or articulated, despite their significance. These are the principles of consumer autonomy and medium neutrality.

Intellectual Property, Copyright, Fair Use, Public Choice, Consumer Autonomy, Medium Neutrality, Reverse Engineering

Abstract:
Uncertainty as to the optimum extent of protection has generally limited the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This article explores the relationship between copyright scope, doctrinal efficiency and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law.

The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use. The metric driven analysis adopted in this article demonstrates the general robustness of the market failure approach to fair use and the relative frailty of the competing cost benefit approach. The metric driven analysis also indicates how the market failure approach can be improved by adopting a more discriminating allocation of the burden of proof in fair use cases.

Copyright, copyright scope, cost-benefit analysis, doctrinal efficiency, fair use, law and economics, secondary liability, market failure, and private ordering

Abstract:
This Article compares the pending settlement between Google and the representative author and publisher plaintiffs to the most likely outcome of the litigation the settlement resolves. This counterfactual provides a useful benchmark by which to assess the effects, and thus the merits, of the Google Book Search settlement.

Google was never likely to receive the courts unqualified approval for its massive digitization effort. In fact, the most likely outcome of the litigation was that book digitization would qualify as a fair use subject to an opt-out. Accordingly, the aspects of the proposed settlement which allow Google to continue to operate its book search engine in its current form should not be controversial; they essentially mirror the court’s most likely fair use ruling if the case had gone to trial. In effect, the opt-out that fair use would have required has been replaced by the ability of copyright owners to opt-out of the class-action settlement.

This conclusion explains why, in the wake of the proposed Settlement, the Google Book debate has shifted away from the merits of book digitization, and refocused on questions of commoditization and control. This Article highlights four critical areas in which the Settlement differs sharply from the predicted fair use ruling. First, the Settlement permits Google to engage in a significant range of uses including the complete electronic distribution of books that go well beyond fair use. Second, the Settlement provides for initial cash payments by Google to the copyright owners and a fairly generous revenue sharing agreement, neither of which would have been required under a fair use ruling. Third, the agreement creates a new set of institutional arrangements that will govern the relationship between Google and the copyright owners covered by the Settlement. The foundations of this new institutional framework are the Settlement agreement itself, the creation of a collective rights management organization called the “Book Rights Registry” and the “Author-Publisher Procedures”. The fourth area in which the Settlement differs from the likely fair use outcome relates to the accessibility, commoditization and control of orphan works.

Google, Google Book Search, Google Settlement, Authors Guild, Copyright, Fair Use, Class Action, Antitrust

Abstract:
This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, we show that ideology is a significant determinant of cases involving intellectual property rights: the more conservative a judge is, the more likely he or she is to vote in favor of an intellectual property claim. However, our analysis also shows that there are significant differences between intellectual property and other areas of the law with respect to the effect of ideology. This analysis has important implications for the study of intellectual property. It also contributes to the broader judicial ideology literature by demonstrating the effect of ideology in economic cases.

Intellectual Property, Ideology, Politics, Attitudinal model, Empirical

Abstract:
This article studies the rise of copy-reliant technologies - technologies such as Internet search engines and plagiarism detection software that, although they do not read, understand or enjoy copyrighted works, necessarily copy them in large quantities. This article provides a unifying theoretical framework for the legal analysis of topics that tend to be viewed discretely. Search engines, plagiarism detection software, reverse engineering and Google's nascent library cataloging effort, are each part of a broader phenomenon brought about by digitization, that of copy-reliant technologies. These technologies raise two novel, yet central, questions of copyright law. First, whether a non-expressive use that nonetheless requires copying the entirety of a copyright work should be found to infringe the exclusive rights of the copyright owner. Second, whether the transaction costs associated with copy-reliant technologies justify switching copyright's default rule that no copying may take place without permission to one in which copyright owners must affirmatively opt-out of specific uses of their works.

This article explores the pivotal role of the fair use doctrine in adapting copyright law to new technology, and explains the role of expressive substitution in fair use doctrine generally and the application of fair use in the context of non-expressive use in particular. Furthermore, this Article explores the application of fair use in situations where the alleged infringer has provided copyright owners with the ability to opt-out. The Article is timely in light of the pending Google Book Settlement.

Internet, Copyright, Non-expressive use, Opt-out, Fair use, Transaction costs

Abstract:
This article focuses on the narrow issue of the rationality of end user litigation by the recording industry against individual file-sharers. The illogic of the recording industry's present strategy has been argued by a number of commentators who also believe the practice to be undesirable from a broader social perspective.

The purpose of this article is to disentangle these conflicting perspectives and to answer the simple question: does end user litigation make sense for the recording industry? The rational choice model of consumer file sharing applied in this article indicates that, rather than being "commercial suicide," end user litigation actually makes sense for the recording industry.

The advantage of applying a traditional cost benefit analysis of consumer file sharing is that allows us to contextualize the predictions of normative and technological backlash that seem so popular. While the theoretical possibility of either of these reactions remains, there is no current evidence to suggest that they will overwhelm the increased value of expected legal sanctions engineered by the recording industry's consumer litigation.

The cost benefit model suggests that rational consumers should be just as sensitive to changes in the expected cost of legal sanctions as any other product feature associated with the music they acquire.

Furthermore, rather than focusing their efforts on the very worst copyright offenders, the recording industry's optimal strategy in relation to end user litigation is to target the most sympathetic defendants along with a broad spectrum of file sharers. Targeting high volume up-loaders sounds like a safe course of action at first, but as this article explains, this is an illusory comfort. It makes much more sense for the recording industry to target more marginal file sharers because they are more likely to be persuaded to stop file trading and start buying music.

Copyright, Peer-to-peer, File sharing, End User Litigation

Abstract:
Empirical legal studies have become increasingly popular and influential, but empirical analysis is only as good as its tools. Until recently, no sophisticated measure of case outcomes existed. Jacobi (2009) developed three possible measures of case outcomes, based on three common theories of how Justices balance the trade-off between outcome optimization and coalition maximization. This Article extends Jacobi's earlier theoretical work by empirically testing those competing measures of case outcomes.

The competing measures are initially assessed against a dataset of over 8000 Supreme Court cases decided between 1953 and 2006. The measures are also assessed in a more targeted fashion in relation to Supreme Court intellectual property cases spanning the same period. The large-n data enables us to make statistically robust assessments, whereas the small-n data facilitates alternative measurement strategies and coherent doctrinal analysis. We find a viable measure of case outcomes exists that is reliable and valid. As well as suggesting the best means of scoring case outcomes, our results enhance scholars' understandings of Supreme Court jurisprudence and inform the debate over how courts decide cases.

Judicial behavior, Empirical legal studies, Measurement, Ideology, Collegiality, Strategic behavior, Intellectual property, Supreme Court

Abstract:
Empirical legal studies have become increasingly popular and influential, but empirical analysis is only as good as its tools. Until recently, no sophisticated measure of case outcomes existed. Jacobi (2009) developed three possible measures of case outcomes, based on three common theories of how Justices balance the trade-off between outcome optimization and coalition maximization.

This Article extends Jacobi’s earlier theoretical work by empirically testing those competing measures of case outcomes. The competing measures are initially assessed against a dataset of over 8000 Supreme Court cases decided between 1953 and 2006. The measures are also assessed in a more targeted fashion in relation to Supreme Court intellectual property cases spanning the same period. The large-n data enables us to make statistically robust assessments, whereas the small-n data facilitates alternative measurement strategies and coherent doctrinal analysis. We find a viable measure of case outcomes exists that is reliable and valid. As well as suggesting the best means of scoring case outcomes, our results enhance scholars’ understandings of Supreme Court jurisprudence and inform the debate over how courts decide cases.

Judicial behavior, Empirical legal studies, Measurement, Ideology, Collegiality, Strategic behavior, Intellectual property, Supreme Court

Abstract:
This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. This article empirically establishes that judicial decision making in relation to IP is significantly and predictably shaped by judicial ideology. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, we show that ideology is a significant determinant of cases involving intellectual property rights. However, our analysis also shows that there are significant differences between intellectual property and other areas of the law with respect to the effect of ideology. This analysis has important implications for the study of intellectual property. It also contributes to the broader judicial ideology literature by demonstrating the effect of ideology in economic cases.

intellectual property, ideology, politics, attitudinal model, empirical, supreme court, federal circuit, patent, copyright, trademark, trade secret