E-Sports as a Prism for the Role of Evolving Technology in Intellectual Property

161 U. Pa. L. Rev. Online 317 (2013)

Loyola-LA Legal Studies Paper No. 2013-40

14 Pages Posted: 27 Nov 2013

See all articles by Jennifer E. Rothman

Jennifer E. Rothman

University of Pennsylvania Law School; Yale Information Society Project, Yale Law School

Date Written: November 26, 2013

Abstract

This essay challenges the preference for legislating in the face of new technology. Responding to Dan Burk’s recent article, Owning E-Sports: Proprietary Rights in Professional Computer Gaming, this essay considers how technology influences intellectual property law, both in the context of professional video gaming, e-sports, and beyond. The essay provides two major insights. First, that changing technology and new industries often can reveal misguided approaches taken by the common law in intellectual property cases. The concept of “persona” in right of publicity law and the “initial interest confusion” doctrine in trademark law are two prime examples of this phenomenon. Second, that consideration of underlying principles and policies should be a preferred starting point for addressing issues raised by new technology through current legal mechanisms. For this point, the essay focuses on copyright law and the failings of recent technology-specific legislation. The essay advocates that technology-specific legislation should be a last resort, only to be undertaken once some degree of technological stabilization has been reached and, even then, with broad principles – rather than industry-specific considerations — in mind. The essay was presented as part of the University of Pennsylvania’s Symposium on The Evolving Internet.

Keywords: copyright, intellectual property, fair use, technology, internet, custom, video games, gaming, e-sports, right of publicity, persona, trademark, initial interest confusion, personal use, common law

JEL Classification: K10, K11, K19, K39, L82, L83, L86, O31, O33, O34

Suggested Citation

Rothman, Jennifer E., E-Sports as a Prism for the Role of Evolving Technology in Intellectual Property (November 26, 2013). 161 U. Pa. L. Rev. Online 317 (2013), Loyola-LA Legal Studies Paper No. 2013-40, Available at SSRN: https://ssrn.com/abstract=2360381

Jennifer E. Rothman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Yale Information Society Project, Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
201
Abstract Views
1,059
Rank
284,764
PlumX Metrics