Table of Contents

Crowdfunding in Colorado Is Now Available

Herrick K. Lidstone, Burns, Figa & Will, P.C., University of Denver Sturm College of Law

Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice

Marcella Favale, Bournemouth University, University of Glasgow
Martin Kretschmer, University of Glasgow
Paul L.C. Torremans, Independent

Three Fundamental Flaws in CAFC's Oracle v. Google Decision

Pamela Samuelson, University of California, Berkeley - School of Law

Spot the Patent Troll: Do Current Incentives Meet the Goals of the Patent System?

Aleksander Nikolic, Independent

The Transplant and Transformation of Intellectual Property Laws in China

Peter K. Yu, Texas A&M University School of Law

Intellectual Property Rights and Antitrust in China

Yee Wah Chin, Ingram Yuzek Gainen Carroll & Bertolotti, LLP

Judicial Snapshots and Fair Use Theory

Michael Birnhack, Tel Aviv University - Buchmann Faculty of Law

Editorial Notes

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Sponsored by the Kauffman Foundation

"Crowdfunding in Colorado Is Now Available" Free Download

HERRICK K. LIDSTONE, Burns, Figa & Will, P.C., University of Denver Sturm College of Law

The Colorado General Assembly adopted House Bill 2015-1246 (the Colorado Crowdfunding Act) which creates an exemption in the Colorado Securities Act for capital formation through securities-based crowdfunding. This can be accomplished through broker-dealers, sales representatives, or on-line intermediaries to Colorado residents by Colorado businesses under the federal intrastate exemption for the offer and sales of securities. The Colorado Crowdfunding Act became effective on August 5, 2015.

The Securities Commissioner adopted rules implementing the Colorado Crowdfunding Act on July 29, 2015 on an emergency basis, and is holding a final rulemaking hearing on August 31, 2015. The article discusses crowdfunding in Colorado based on the emergency rules which have been proposed to become the final rules as well.

This article also answers the question which has not been addressed in other articles on crowdfunding, "now that you own crowdfund securities, what can you do with them?"

"Is There a EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice" Free Download
Modern Law Review (2015 Forthcoming)

MARCELLA FAVALE, Bournemouth University, University of Glasgow
MARTIN KRETSCHMER, University of Glasgow
PAUL L.C. TORREMANS, Independent

The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising agenda over and beyond the conventional law-interpreting function of the judiciary. This study aims to investigate empirically two theories in relation to the development of EU copyright law: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law rather than – less discretionary – semantic and systematic legal approaches).

We have collected two data sets relating to all ECJ copyright and database cases up to Svensson (February 2014): (1) Statistics about the allocation of cases to chambers, the composition of chambers, the Judge Rapporteur, and Advocate General (including coding of the professional background of the personnel); (2) Content analysis of argumentative patterns in the decisions themselves, using a qualitative coding technique. Studying the relationship between (1) and (2) allows us to identify links between certain Chambers/ Court members and legal approaches, over time, and by subject. These shed light on the internal workings of the court, and also enable us to explore theories about the nature of ECJ jurisprudence.

The analysis shows that private law and in particular intellectual property law expertise is almost entirely missing from the Court. However, we find that the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs. We also find that the Court has developed a “fair balance? topos linked to Judge Malenovský (rapporteur on 24 out of 40 copyright cases) that does not predict an agenda of upward harmonisation, with about half of judgments narrowing rather than widening the scope of copyright protection.

"Three Fundamental Flaws in CAFC's Oracle v. Google Decision" Free Download
European Intellectual Property Review, October 2015, Forthcoming

PAMELA SAMUELSON, University of California, Berkeley - School of Law

The CAFC’s Oracle v. Google decision is deeply flawed and at odds with more than two decades of copyright precedents applying copyright law to computer programs. This article shows that the CAFC erred in its interpretation of § 102(b), in its overbroad conception of interfaces as protectable structure in programs, and in misconstruing and misapplying the merger doctrine to program interfaces.

"Spot the Patent Troll: Do Current Incentives Meet the Goals of the Patent System?" Free Download


Much has been written about patent trolls and the detrimental effects they have on the patent system. Legal and legislative attempts have been made to curb patent trolls. However, there is considerable confusion over who is actually a patent troll. Because of the focus on trolls, other practices have been ignored. Judicial and legislative remedies have done little to discourage strategic patent non-practice. This work first examines the goals of the patent system and the difficulties faced by inventors. In light of these goals, patent non-practice and strategic use is examined. The problem presented by patent trolls appears to only be a minor one. There are other serious and pervasive patent practices which are limiting innovation but are being ignored. Changes should be considered in order to have real-world patent practice align with the professed goals of the system.

"The Transplant and Transformation of Intellectual Property Laws in China" Free Download
INTELLECTUAL PROPERTY GOVERNANCE IN CHINA AND EUROPE, Nari Lee, Niklas Bruun and Li Mingde, eds., Edward Elgar Publishing, 2016

PETER K. YU, Texas A&M University School of Law

The history of intellectual property laws in China is a history of legal transplants. From the introduction of intellectual property laws during the late Qing dynasty and the Republican era to the recent laws and amendments adopted by the People’s Republic, legal transplant was the primary means by which the modern Chinese intellectual property regime was established.

This chapter begins with a brief history of the transplant of intellectual property laws in China. It then examines the drawbacks and benefits of legal transplants. The chapter further discusses four key questions that policymakers should consider when transplanting laws from abroad. The answers to these questions, in turn, may result in not only the transplant, but also transformation, of these laws. Although this chapter focuses on China, the discussion here is likely to be relevant to other jurisdictions.

"Intellectual Property Rights and Antitrust in China" Free Download
IP Protection in China 299-318, Donna P. Suchy, Ed. (ABA Publishing 2015)

YEE WAH CHIN, Ingram Yuzek Gainen Carroll & Bertolotti, LLP

China’s Anti-Monopoly Law (AML) came into effect on August 1, 2008, following its enactment the year before and 13 years of drafting. China enacted the Third Amendments to its Patent Law on December 26, 2008, effective October 1, 2009. This chapter summarizes the AML, and discusses those aspects that may have particular impact on intellectual property rights (IPR), as well as the provision of the Patent Law that implicates competition law issues and the implementing regulations and Judicial Interpretations relating to those laws that involve the IPR-competition law interface.

"Judicial Snapshots and Fair Use Theory" 

MICHAEL BIRNHACK, Tel Aviv University - Buchmann Faculty of Law

Decision-makers and legislatures around the world have recently placed copyright limitations and exceptions on their agenda. The main reference point is the American fair use defence. The policy debates focus on the advantages and disadvantages to the content industries, intermediaries and users. Unfortunately, too often, missing from this discussion is the underlying theory of the exceptions. The risk is that a foreign concept will be detached from its origin and transplanted within a different legal setting, without sufficient attention as to how it should be absorbed within the recipient legal body. Theory can fulfil the crucial function of enabling the successful absorption of the transplant.

The article strives to redirect us back to the theoretical avenue. It classifies fair use justifications in two categories: those that are internal to copyright law and those external thereto. These justifications should be read on the background of the overall conception of copyright law. The case study at stake is Israeli copyright law. Israel was the first common law country to shift from a British-based, relatively narrow rule of fair dealing defence to the American, open standard of fair use, in its 2007 Copyright Act. However, courts began the shift more than a decade before the legislation, inserting American considerations into the British statutory structure. In so doing, courts relied on a partial, slightly outdated version of fair use, in what I call a judicial snapshot. The result was two decades of incoherent and unstable doctrine. Accordingly, the article warns against the perils of un-theorized transplant.


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