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Abstract:
This paper, following on Michael F. Brown's Who Owns Native Culture?, suggests that intellectual property law, negotiation, and human rights precepts can work together to address indigenous claims to heritage protection. Granting intellectual property rights in such spheres as traditional knowledge and folklore does not threaten the public domain in the same way that expansion of intellectual property rights in more commercial spheres does. It is not so much a question of the public domain versus corporate and indigenous interests, as it is a question of the impact corporate interests have had on the indigenous claims. Indeed indigenous peoples' claims are in many respects more properly aligned with the interests of the public. In addition, there are important questions of discriminatory treatment of indigenous knowledge by the present regime of intellectual property. The scope and source of the rights being advanced by indigenous peoples are integral to indigenous culture, interests properly protected under human rights law.

intellectual property law, negotiation, human rights, traditional knowledge, folklore, group rights, patent, copyright, trademark, bda

Abstract:
This essay considers how patent law doctrine clouds the historical record of technological development. The essay first surveys a recent book that relied heavily on patent records to reexamine acutely the role of intellectual property in economic development, "The Democratization of Invention," by B. Zorina Khan. The essay's second part discusses how patent law today likely distorts patents as primary historical sources. The law encourages an inventor not to accurately disclose her invention and its place in technological development, but rather to submit vague and overbroad invention descriptions and claims. In describing the invention, some case results perversely favor what one commentator has called "intentional obscurity." Other aspects of law governing disclosure encourage inventors not to define their terms; or identify the category of invention in the preamble; or limit the claims to the actual invention. Likewise, inventors can be at a disadvantage if they explain the advantages of the claimed invention or submit software code used to implement the invention. Even keeping up on technology in the field may hurt the patent applicant. Reform of such rules could help the patent system today, and, as a byproduct, tomorrow's history.

Abstract:
This essay reviews Steven Pinker, The Stuff of Thought (Penguin 2007), which offers insights from cognitive science just where it overlaps the most with law - how we use basic cognitive categories like intent, space, time, events and causation. The Stuff of Thought might offer insights into a broad range of issues in legal theory. Legal theory could make more use of such cognitive science concepts as chunking, recursion, and the primary qualities of an object. Other topics likewise resonate in thinking about the law: The book suggests that metaphor is an important cognitive tool, but less constraining than might be thought. Linguistic analysis of verb classes and polysemy suggests that words have surprisingly determinate meaning. Our apparent innate sense of causation (drawn from an analysis of language) sheds light on the legal treatment of causation. Lastly, The Stuff of Thought describes the role of indirect speech, whereby people convey information without revealing their state of mind - which often allows social interaction to proceed smoothly. Default rules in the law, we suggest, often play an analogous role.

The essay then explores the cognitive aspects of stories (following literary theorists like Mark Turner who have linked cognitive science with narrative theory), suggesting a recursive definition of story, and another angle to the trolley problem. Looking at the cognitive role of stories permits a fuller view of legal reasoning, learning, and remembering. This fits well with recent scholarship, such as work on origin stories, and law and genre theory.

Abstract:
This paper describes the legal structure of open source software and analyzes the likely issues to arise. A combination of copyright law and trademark law serves to permit the free distribution of open source software. The software is kept under copyright, but freely licensed under one of various open source licenses. The legal structure of open source is an elegant and robust use of intellectual property law that turns the customary use of intellectual property on its head, by using intellectual property laws, which normally are used to guard exclusive rights, to safeguard free access to and use of software.

The paper further discusses how open source challenges economic and philosophical theories of intellectual property. Ironically, the open source movement, with its early roots in a decidedly socialist view of software, appears to vindicate a rather free-market view of intellectual property--that market mechanisms are more efficient in overcoming market failure than corrective legal measures. Philosophically, open sources may fit best with a natural rights/personality theory, especially where open source authors frequently give away all rights except their rights to attribution and to prevent distortion.

The paper further explores how open source may affect patent litigation, (especially with respect to the profound prior art problems in software patents) and other aspects of regulation of software (ranging from fair use in copyright to enforcement of licensing terms to restrictions on use of certain algorithms, like encryption). The openness of the software can cut both ways with respect to all those subjects.

open source, free software, software, copyright, patent, trademark, licensing, bda

Abstract:
The right to receive payment under a letter of credit may be assigned, even if the letter of credit prohibits assignment of proceeds. This article argues that this rule should be changed, to give effect to clauses barring assignment of proceeds. The rule made sense where letters of credit were primarily used in sales of goods transactions. In that context, the rule simply mirrored the contract law doctrine that the right to receive payment under a sales contract may be freely assigned (subject to any defenses the payor might have). But letters of credit are not used in a broader range of transactions, and are often used as a standby security device, as opposed to a primary means of payment. Where such letters of credit are more like collateral than a means of payment, the parties should be free to agree on the structure of the transaction, including limits on assignment. In addition, the parties can effectively bar assignment by drafting the conditions for drawing the letter of credit. The bar against assignment then, is both outdated and ineffective (and thereby inefficient, because the parties must expend some resources in structuring and drafting around the rule).

Abstract:
This article analyzes the treatment of letters of credit as executory contracts in bankruptcy. Some courts had stated that the bankruptcy of the beneficiary terminates a letter of credit. This article concludes that decisions were incorrect in treating a letter of credit as an executory contract to provide financial accommodations to the beneficiary. A letter of credit is not a means to provide credit to the beneficiary: it is a means to provide credit to the applicant (and thereby allowing the applicant and beneficiary to avoid extending credit to each other). The issuer is not dependent on the credit risk of the beneficiary, rather that of the applicant. So terminating the letter of credit due to the beneficiary's bankruptcy does not fit the executory contract framework in bankruptcy.

Abstract:
This paper uses the work of C.S. Peirce to explore legal reasoning by analogy. Peirce divided reasoning into three basic forms: deduction, induction, and abduction. Deductive reasoning discloses conclusions that necessarily follow from the premises. Inductive reasoning gives support to statements by generalizing from the characteristics found in samples. Abductive reasoning - a concept that Peirce originated - produces explanatory hypotheses. The three types of inference vary as to security (how certain we are that a conclusion follows from the premises) and uberty (how fruitful the reasoning is in producing new knowledge). Deductive reasoning has high security, because the conclusion necessarily follows from the premises, but low uberty, for the same reason. Abductive reasoning has high uberty, because it creatively produces explanatory hypotheses, but low security, because such hypotheses may be falsified when tested. Induction falls between the other two forms; compared to abduction, its reliance on regularity increases its security, but restricts its uberty.

The classic formulation views reasoning by analogy as induction; because one or more base entities with certain characteristics have an additional characteristic, we conclude that another entity with the initial set of characteristics also has the additional characteristic. Peirce, however, saw analogy as a combination of induction and abduction, which would both make the process of reasoning by analogy more complex and add the properties of abductive reasoning (for example, its lower security and higher uberty). Applying Peirce's framework to legal reasoning provides a powerful analytical device for assessing the strengths and weaknesses of analogical arguments. The paper also analyzes various writings on legal reasoning by analogy, using the framework sketched above.

Abstract:
This Article argues for a broad conception of copyright's fair use doctrine. Economic reliance on property rules has led some to argue that fair use should be limited to cases where market failures do not permit licensing transactions. Otherwise, allocation of rights should be left to the market. This article takes the position that differences between real property and intellectual property undercut the application of the tragedy of the commons to the fair use setting. While real property is a limited resource, intellectual property is not. The same parcel of land may not support an unlimited number of grazing sheep. But making one more copy of a book does not destroy other copies (although it may reduce their market value). The ideas in the book, indeed, may gain value from use, refinement, and propagation. Thus, the same public good nature of works of authorship that justifies intellectual property also differentiates it from real property. Moreover, the boundaries in copyright are far more uncertain
than those around a parcel of land. Copyright demarcates protected subject matter with elusive distinctions - originality, abstraction, and functionality.

Part II further addresses the theoretical underpinning of the transaction cost approach, the idea that copyright should be maximally privatized. Under that view, concentrating control in the hands of the author by constricting fair use would most efficiently exploit the resource. But this view overlooks factors that can prevent copyright holders from permitting many uses. First, transaction costs are not the only obstacle to licensing valuable uses. Issues of status, risk aversion, and other obstacles to negotiations could obstruct licensing of many productive uses. Second, increases in electronic commerce and communications will lower some types of transaction costs, but many components are likely to remain unaffected. Accordingly, the Internet will not yield the frictionless marketplace postulated by the transaction cost view. Reducing the scope of fair use could create deadweight loss to productive uses.

Part III discusses an alternative, the balancing view of fair use, which relies on a different view of the property created by copyright. The transaction cost view conceptualizes intellectual property as a single resource that can be split up in pieces and identified with the copies of the work. But the rights under copyright are not coextensive with the physical copies. Others remain free to copy the ideas expressed in a copyrighted work, the functional aspects of the work, and the facts from the work. Fair use has served as a device to ensure that the copyright owner's control over the expressive aspects of her work do not extend to the noncopyrightable aspects.

Part IV compares the transaction cost view and the balancing view of fair use in the context of a number of live issues: whether a temporary copy in a computer's memory infringes copyright, how much legal protection should be afforded copy protection technology, how broad the exclusive right to make derivative works should be, whether one could archive the World Wide Web, and the application of fair use to photocopying and other means of reducing the costs of disseminating copies. This Article will conclude that, although the transaction cost approach might simplify fair use analysis, it would do so by undercutting certain core limitations on copyright. Rather than shrinking away in the digital age, fair use should continue to be a means to implement the balances struck by copyright law.

Abstract:
The Commerce Clause has long been a constitutional powerhouse underlying federal legislation. The decision in United States v. Lopez marked the first time in almost sixty years that the Supreme Court has held that Congress had exceeded its power to regulate interstate commerce. In Lopez, the Court held that Congress overreached its power in enacting the Gun-Free School Zones Act of 1990, which prohibited possession of firearms within one thousand feet of a school. Lopez thus breaks a long line of cases deferring to congressional action. Historically, the Court has sustained federal regulation of civil rights, loan-sharking, restoration of environmental damage, labor relations, and home-grown wheat, even where such activities had tenuous links to interstate commerce. The Lopez Court, although recognizing the great breadth accorded Congress under such decisions, attempted to create special protection for state sovereignty. This article will argue that Lopez does so by implicitly combining two previously separate limitations on the commerce power into a heightened scrutiny of federal legislation regulating areas of traditional concern to the states.

Abstract:
This Article discusses another role for default rules--reducing costs of status competition. Default rules principally serve to reduce transaction costs and strategic behavior costs, but they also accomplish other functions. The hypothetical behavior of parties that measure the costs and benefits of the transaction in absolute terms provide a basis transaction and strategic behavior cost analysis. Parties in actual negotiations, however, often shift to measuring things in relative terms because of concerns about status. The participants enter into contract negotiations to achieve gains from trade. The process of negotiation itself, however, may become a competition. Rather than simply trying to achieve their original goals, parties sometimes shift in whole or in part to "win" the bargaining. Such status competition may have two types of costs. It may increase the resources expended in bargaining by making the negotiations longer or more complex, and it may reduce gains from trade by causing negotiations to fall through. The shift can harm the parties as a whole by changing the negotiation from one with potential gains from trade for both parties to one where any gain for one party results in a perceived loss to the other party. This Article addresses how default rules of contract law may operate to reduce such costs of status competition during negotiation.

contract, default, status competition, negotiation, transaction costs

Abstract:
This article addresses the legal nature of the bankruptcy estate: whether the bankruptcy estate is a collection of property interests, like the traditional conception of a decedent's estate, or whether the estate is the legal person in which such property interests vest, analogous to a corporation, a partnership, or an individual. The legal nature of the bankruptcy estate becomes most important when a corporation which files a chapter 11 petition becomes a debtor in possession. Suppose Acme Corporation files a chapter 11 bankruptcy petition and becomes a debtor in possession; Acme's property becomes the bankruptcy estate. What is Acme Corporation's current relationship to its property? Under what I will call the "property view," that property remains vested in Acme Corporation, a corporation in bankruptcy, with Acme subject to new rights and obligations as a debtor in possession. Under what I will call the "new person view," the commencement of the bankruptcy case (1) creates a new legal person, the Acme Estate, (2) causes Acme Corporation's property to be transferred from Acme Corporation to the Acme Estate, and (3) places Acme Corporation, the debtor in possession, as representative of the Acme Estate. The new person view is actually a new variant of a rather metaphysical legal doctrine, the "new entity" view. Part I examines relevant provisions of the Code and the tax laws, and concludes that the statutory support for the new person view is, at best, ambiguous. Part II discusses executory contracts, the area of bankruptcy law in which the new person view, and its predecessor, the new entity view, developed. Part III examines the effects of the new person view on analysis of corporate governance issues and the appropriate use of the corporate powers of the debtor during bankruptcy. Part IV turns from doctrinal analysis to legal theory and discusses whether the new person view is necessary for a noneconomic theory of bankruptcy.

Abstract:
The Federal Circuit, in In re Bilski, announced a new test for patentable subject matter, reversing a decades-long trend that had broadened patent subject matter to include business methods and software. To be patentable under Bilski, a process must (1) be tied to a particular machine or apparatus, or (2) transform a particular article into a different state or thing. The Supreme Court has granted cert. to review Bilski.

Bilski gives little weight to the very statute it is interpreting or to the facts of the relevant Supreme Court cases. The court draws a test from selected language of those cases, while determinedly ignoring other language. Literally taken, the machine-or-transformation test would not achieve the goal of limiting the scope of abstract patents, such as broad business methods and software patents. The brain is a machine, so mental processes would meet the test. Since Turing, software simply transforms a computer into a different state, so all software would be patentable - if we took the test literally. As a thought experiment, the article discusses how the machine-or-transformation test would apply to such innovations as farming, the printing press, the number zero, or the computer.

But Bilski's approach, if not applied rigidly, could have a strong positive influence on the development of patent law. Many broad patents of suspect validity cast a shadow over new technologies. The machine-or-transformation test relies on vague terms and illusory distinctions. But the same is true of the central test for the scope of copyright protection. Although the idea/expression dichotomy is illusory, the analytical framework it provides has served well to adapt copyright to a broad range of subject matter and to new technologies. The machine-or-transformation test could do a similar job for patent law. Bilski's emphasis on the policy that a patent should not preempt a broad area of technology could also supply a unifying principle to the recent case law on enablement, definiteness, and claim interpretation.

Abstract:
This article discusses how the functional aspects of software should be accounted for in applying copyright's fair use doctrine. Copyright provides an incentive for authors to produce creative works, by giving them an exclusive right to make and distribute copies of their work. The fair use doctrine permits others to make copies where strict enforcement of the exclusive right would be counter-productive. Fair use often permits use of copyrighted material where the author suffers no loss, or where the author might deny permission for reasons counter to copyright's goals of fostering creativity and innovation. Parts II and III apply this analysis to the fair use of copyrighted software. Software differs from other copyrighted works because it is generally copied during use. To use a computer program, it often must be copied from the secondary storage of the computer to RAM. Because courts have deemed this to constitute making a copy for the purposes of the copyright statute, a software copyright holder potentially has more differentiated control over her work than an author that produces a book or a song. The fair use balance may be adjusted to ensure that the copyright holder's rights over the expressive aspects of her work do not unduly extend to the noncopyrightable functional aspects. The fair use doctrine has played a key role in recent Supreme Court copyright decisions and is likely to be central in adapting copyright law to new technologies and modes of authorship. The growing popularity of the Internet, essentially a huge device to transmit copies, is raising many new questions of fair use. This article seeks to develop a less mechanical approach, in order to ensure that rigid extension of copyright does not distort the incentives for innovation.

Abstract:
This piece reviews Economic and Legal Dimensions, which presents a pragmatic economic theory about the proper remedies in intellectual property cases. The book shows in a number of areas how remedies play a crucial role in defining intellectual property rights, and how to improve the law. The first part of the review presents the authors' general theory. The second part tests how the theory succeeds in explaining the existing law on remedies in intellectual property. The third part analyzes how the theory could be used to bring considerable clarity to murky areas such as standing to sue, liability standards, measurement of damages, and potential defendants. It also discuss the nature and role of the work within intellectual property scholarship. The fourth part seeks to extend the book's analysis to two of the more pressing problems in patent law. It shows how adoption of an independent creation defense could considerably reduce the problems of poor patent quality and uncertain patent claim interpretation. Changes in one area of intellectual property (such as remedies) can have broader effects on the economic role of intellectual property.

Abstract:
Artificial Legal Intelligence, by Pamela Gray, presents a thought-provoking approach to both computational models of legal reasoning and the use of evolutionary thinking about the law. Drawing on a prodigious amount of research, the book looks beyond the rather technical approach common in the field and attempts to place artificial legal intelligence within the broad structure of legal history. This paper first summarizes the book's vision of a computerized artificial legal intelligence, a vision of developments in both technology and legal history. The paper discusses how this fits with trends in both artificial intelligence and legal theory. The paper further discusses how the book, by freeing itself from present technological constraints, provides a wider vision than many more technical discussions of artificial intelligence. In particular, its view of the evolution of law brings in social and cultural factors often ignored by discussions of legal reasoning. The last part of this paper considers, more broadly, how evolutionary analysis can provide a fruitful method for analyzing legal reasoning.

artificial intelligence, legal reasoning, bda

Abstract:
This article analyzes the ramifications of Eldred v. Ashcroft, for both constitutional law and intellectual property law. The Supreme Court upheld the twenty year extension of existing and future copyrights. A broad coalition had challenged the constitutionality of the term extension, on both Copyright Clause and First Amendment grounds.

I. With respect to First Amendment law generally, the article analyzes whether Eldred can be read as using "traditionalism" to define the scope of protected rights under the First Amendment. Such a reading could represent a considerable change in First Amendment law.

II. Eldred leaves open the possibility of First Amendment scrutiny of nontraditional copyright protection. Thus, Eldred may strengthen First Amendment arguments against various nontraditional protections in the copyright statute, such as protection for anticircumvention technologies, for copyright management information, and digital rights management technologies.

III. Eldred could affect the ever-changing role of the fair use doctrine. Fair use has been threatened by various judicial decisions, legislation, and academic theories. Eldred, however, firmly grants fair use constitutional status, by making it a basis for the constitutionality of copyright law in general. Fair use may now also play a greater role in protecting expressive interests with respect to use of copyrighted works.

IV. Eldred also plays a role in federalism. The Court declined to impose the sort of limits that it has applied in the Commerce Clause area. But Eldred could nonetheless affect the interplay between federal and state intellectual property law. Eldred gives strength to arguments that federal policies central to copyright (such as fair use and the idea/expression dichotomy) should not be frustrated by conflicting state law in such areas as software licensing and database protection.