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Abstract:
Private Military Companies (PMCs) can be useful and arguably provide excellent service while offering swift and needed aid to embattled regions. In addition, they appear to do so at lower economic and political cost to the country or countries that choose to employ them. Still, recent events also demonstrate that the rush to employ PMCs has overlooked several issues regarding how PMCs operate and forces the question of how does one ensure that PMCs are accountable for their actions. Indeed, as recent events in Abu Ghraib and Bosnia demonstrate, PMCs and their personnel often go unpunished for their violations of the law. In response, some have sought to ban PMCs while others wish to categorize and license them on either an international or state basis.

This article argues that the market makers such as the U.S. government can use their market strength to force the industry to adhere to human rights and international laws and agree to U.S. jurisdiction over common crimes. In addition, a legislative layer will fill current holes preventing Congressional oversight of PMCs, create protection for whistleblowers, and allow for a private right of action if the government fails to prosecute PMCs that violate the law. This article concludes that such a layered approach to regulation will allow PMCs to retain their effectiveness, curtail their transgressions, and ensure that when violations occur those responsible are held accountable.

contract, private military, legislation, Abu Grahib, mercenary, regulation, international law, privatization, torture

Abstract:
The intellectual property system has fostered many debates including recent ones regarding how the system affects access to knowledge. Yet, before one can access, one must preserve. Two interconnected problems posed by the growth of online creation illustrate the problem. First, unlike analog creations, important digital creations such as emails and word processed documents are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such. Service providers and software makers terminate or deny access to people's digital property all the time. In addition, when one dies, some service providers refuse to grant heirs access to this property. The uneven and unclear management of these creations means that society will lose access to perhaps the greatest chronicling of human experience ever. Accordingly, this paper investigates and sets forth the theoretical foundations to explain why and how society should preserve this property. In so doing the Paper finds that a second problem, which can be understood as one of control, arises.

This Paper is the first in a series of works aimed at investigating the nature and extent of control one may have and/or exert over a work. As such this Paper begins the project by examining the normative theories behind creators', heirs' and society's interests in the works. All three groups have interests in preservation, but the basis for the claims differs. In addition, an examination of the theoretical basis for these claims shows that the nature of the attention economy in conjunction with labor-based and persona-based property theories support the position that in life a creator has strong claims for control over her intangible creations. Yet, the paper finds that historical and literary theory combined with recent economic theory as advanced by Professors Brett Frischmann and Mark Lemley regarding spillovers and positive externalities generated by access to ideas and information reveal two points. First, these views support the need for better preservation of digital, intellectual property insofar as they are infrastructure and have the potential for spillover effects. Second, although the creator may be best placed to manage and exert control of the works at issue, once the creator dies literary, historical, and economic theory show that the claims for control diminish if not vanish. The explication and implications of this second point are explored elsewhere. This Paper lays the groundwork for seeing that creators may need and have powerful claims for access and control over their works but that these same claims are necessarily limited by an understanding of the nature of creation and creative systems. The dividing line falls between life and death. The life and death distinction that this Paper offers seeks to balance creators' interests in control over a work and society's interests in fostering later expressions and creations of new works. This Paper examines the life side of the line.

copyright, attention economics, email, digital property, inheritance, spillovers, access to knowledge, preservation

Abstract:
Copyright operates under a hidden, erroneous assumption: heirs matter in copyright. This Article examines the possible historical and theoretical bases for the heirs assumption and finds that neither supports it. In short, the assumption is a myth that harms copyright policy and ignores a less obvious, but quite important, heir: society in general. An examination of the historical debates shows that the idea of providing for heirs through copyright has played a minor role in U.S. copyright history. Instead, heirs have been props to advance an agenda of furthering term extensions, advancing rent-seeking opportunities, and allowing authors to exert power against publishers. In addition, although copyright policy makers point to Europe and the Berne Convention as a key source for the heirs assumption, European debates that serve as the basis for the Berne Convention offer surprising and almost prescient sensitivity to ideas that are found today in the access to knowledge movement. One figure in particular, Victor Hugo, made an impassioned speech arguing that literary property protection must be operate as a way to found the public domain and asserting that when choosing between authors' rights and the public domain, the public domain must win. Furthermore, when one examines the dominant theories offered to justify copyright-from Lockean labor to Hegelian personhood to utilitarian theories-no justification for descendible copyright is found. Nonetheless the analysis of this material offers a way to understand that another heir, society, ought to be considered in copyright policy as a matter of intergenerational equity.

Rhetorical analysis of the historical and theoretical material investigated in this Article reveals that many seemingly different perspectives converge on two points. First, creativity is a communal, feedback-driven process involving a give and take between the current generation and previous generations. Second, the longer inputs to creativity are locked up, the more creativity and innovation are hindered and harmed rather than increased. These results pose an additional problem as they limit the material available for individuals to use as they develop what Martha Nussbaum has called the basic capability to experience and create expressive works. In short, despite the lack of support for the role ascribed to heirs in today's copyright policy, heirs have taken on a mythological importance that distracts copyright policy from its proper goal: promoting progress. As copyright extension debates continue world-wide and loom with the coming expiration of the Copyright Term Extension Act, this Article seeks to dispel the mythology and provide a more solid basis from which to determine copyright policy.

copyright, legal history, Victor Hugo, infrastructure, inheritance, heirs, Eldred, CTEA, extension, copyright term, public domain

Abstract:
The doctrine of genericism - under which a court may determine a previously valuable mark is or has become generic, thus losing all trademark status and value - has been under theorized since work authored by Professors Folsom and Teply in 1980. Yet in the interim, the expansion of intellectual property rights has changed the landscape of the balance between rights holders and the public. For example recent lawsuits and articles have drawn attention to a growing issue in intellectual property law, the aggressive and arguably abusive tactics of intellectual property ("IP") rights holders. Indeed in the trademark context, some maintain and there are arguments to support the idea that trademark holders bring these actions as a means of manipulating the public through direct control of the public's ability to use language. Nonetheless, if one supposes for a moment that trademark holders and their counsel are acting at some level of good faith and are rational, it may be that something else in the law itself drives this otherwise questionable behavior. This paper argues that the doctrine of genericism as it is currently applied forces the trademark holder to police her rights in this extreme manner for fear of losing her mark.

Specifically, this paper investigates the theoretical and historical evolution of the doctrine and posits that current genericism doctrine has strayed far from its roots, which are in consumer understanding in the marketplace and enhancing competition, and now concerns itself with an inappropriate property type of analysis that places great weight on non-commercial and/or non-competitive trademark use contexts (e.g., dictionary entries, newspapers, noncompetitive third-party uses, etc.). This focus leads to inefficient results, i.e., trademark holders engaging in extensive advertising, letter campaigns, and litigation to try to protect the mark and prevent it from being deemed generic.

As such this paper argues that the doctrine should be re-anchored to focus on the mark's ability to act as a source identifier for the consumer in commercial contexts. Re-focusing genericism on consumer contexts rather than non-consumer, expressive contexts will allow the analysis to embrace a more sophisticated, broad understanding of trademarks. This approach recognizes a term's ability to perform more than one function in language depending on the user of the term and the context of the term's use (i.e., commercial and non-commercial). In addition, this revised understanding of genericism would undermine trademark holders' ability to claim the need to engage in what would otherwise be frivolous and/or abusive enforcement strategies, because they could no longer hang their collective hat on the excuse that they were required to do so to avoid falling victim to genericism. In short, this retooling of the doctrine would allow trademark owners to enjoy the full benefits of the source identifying functions of their marks while at the same time creating a space in which the public may enjoy full use of the terms without fear of reprisal by mark owners.

trademark, intellectual property, expression, linguistics, competition

Abstract:
This article focuses on two interconnected problems posed by the growth of online creation. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people's property all the time. In addition, when one dies, some service providers refuse to grant heirs access to this property. The uneven and unclear management of these creations means that historians and society in general will lose access to perhaps the greatest chronicling of human experience ever. Put simply, online creation and storage raise fundamental issues regarding the ownership of, dominion over, and preservation of digital property; yet the theoretical basis regarding these issues is unclear. Accordingly, this paper investigates and sets forth the theoretical foundations to explain why and how society should preserve this property.

Once the importance of preserving digital artifacts is understood, a familiar problem arises: what normative theory justifies the amount of control the creator or her heirs is given? As such, Part II examines the property, persona, and publicity arguments that the creation of artifacts raise. The paper shows that several theoretical views support the position that in life one has strong economic and non-economic claims for control over one's intangible creations. Yet, the paper finds that historical and literary theory in conjunction with recent economic arguments of Professors Brett Frischmann and Mark Lemley regarding positive externalities generated by access to ideas and information, militate in favor of limits on heirs' control over these creations. Furthermore, insofar as society provides the building blocks from which these creations arise, all the theories show that creations must at some point become part of the commons to enable others to generate new creations. Thus the paper argues against the growth of trademark or trademark-like author's rights which have no temporal limit and offer heirs extreme control over access to and use of an author's work and seeks to balance the interests of creators with society's interest in fostering later expression and creation of new works.

copyright, trademark, right of publicity, intellectual property, persona, property, duration, spillover

Abstract:
Much of the current intellectual property system can be explained as meeting the needs of a culture industry based on individual authors who look to corporate entities to mass produce and distribute cultural products. Today, however, as digital technology decreases the cost of both the production and distribution of cultural products, individuals have taken on previously corporate roles. Authors now seek copyright and trademark protection for their work in ways that expand authorial control at the expense of the intellectual property system as a whole. In this essay I argue that these new modes of generating value may require protection but that the current intellectual property system is not equipped to provide such protection without upsetting the balance between creators and users. This essay seeks to map authors’ new interests as a way to show where the intellectual property system can meet these new needs or where it must change. Given the speed with which technology and this type of production evolves, I offer that the law may not best way to manage many of these interests at all.

attention, reputation, attribution, branding, Wealth of Networks, Netflix, social production