Table of Contents

Merger Remedies and the Undersupply of Economic Research

F. David Osinski, Federal Trade Commission

Protecting LLC Owners While Preserving LLC Flexibility

Peter Molk, Willamette University - College of Law

Some Realism About Copyright Skepticism

Guy Pessach, Hebrew University of Jerusalem - Faculty of Law, Yale University Law School - Affiliate Fellow, Information Society Project

Fairness in Copyright Law: An Anglo-American Comparison

Ilanah Simon Fhima, Institute of Brand and Innovation Law, Unversity College London

The New Separability

Lili Levi, University of Miami - School of Law


Editorial Notes

ERPN is sponsored by the Ewing Marion Kauffman Foundation http://www.kauffman.org/research and provides an online community for entrepreneurship research from all academic disciplines and the users of that information. SSRN is very pleased to work with the Kauffman Foundation in this important and growing area of scholarship.


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Sponsored by the Kauffman Foundation

"Merger Remedies and the Undersupply of Economic Research" Free Download

F. DAVID OSINSKI, Federal Trade Commission
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In the 14 years since this quote, the empirical study of merger remedies has seen little advancement despite frequent use of remedies in practice, significant policy interest, and a treasure trove of potential research topics. This article first describes the use of remedies in U.S. merger policy, including a summary of the FTC’s recent remedy study. It then provides a review of empirical literature addressing remedy effectiveness, with only two modern retrospectives of domestic merger remedies. The article concludes by highlighting areas where economic research could further advance the study of merger remedies.

"Protecting LLC Owners While Preserving LLC Flexibility" Free Download
UC Davis Law Review, Forthcoming

PETER MOLK, Willamette University - College of Law
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LLC statutes allow owners to restrict or completely waive standard governance protections required of other business forms. Corporate law mandatory stalwarts like fiduciary duties can be entirely eliminated in an LLC. This flexible approach has the potential to generate the most efficient governance relationships: tailored negotiation among LLC investors can produce an optimal set of governance terms that corporate law’s mandatory protections cannot. Yet when owners lack sophistication or bargaining power, contractual freedom allows for opportunistic terms that misprice capital, reduce investment, and inefficiently allocate capital across LLCs.

A series of cases involving opportunistic conduct have brought this problem to the fore. Recommendations for reform have focused on doing nothing, imposing mandatory protections, or relying on ad-hoc judicial interventions, but these solutions are each ultimately unsatisfying. I ultimately show how a model inspired by securities law’s accredited investor concept has the most promise to ensure LLCs’ continued viability as a distinct organizational form, with favorable liability and tax treatment to everyday investors and the freedom to craft unique governance relationships for sophisticated ones.

"Some Realism About Copyright Skepticism" Free Download
IDEA: The IP Law Review, Vol. 57, No. 2, 2017

GUY PESSACH, Hebrew University of Jerusalem - Faculty of Law, Yale University Law School - Affiliate Fellow, Information Society Project
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The frame “Beyond IP? is gradually becoming a key term in the political economy of intellectual property. It captures the social costs of legal ordering through intellectual property and offers alternative institutions and regulatory options. “Beyond IP? is not just a frame for mobilization but also a descriptive term that summarizes a growing number of contemporary information and cultural institutions, which rest upon concepts of free content and free access as their building blocks. The purpose of this essay is to question the conventional wisdom of critical copyright scholarship which tends to pair proprietary intellectual property protection with informational capitalism and the commodification of culture. I argue that tensions and dichotomies that we are accustomed to attribute to “IP-centric? regimes are tensions and dichotomies which may appear, or even be stimulated, also by copyright’s negative spaces and certain beyond IP legal regimes. Beyond IP market realms tend to conflict with the values of cultural democracy, informational privacy and creative diversity. This essay offers the first novel critical examination of the political economy of information markets that operate beyond the boundaries of IP. This analysis bears significant normative implications on the desirability of contemporary approaches, which support mobilization towards beyond IP legal regimes.

"Fairness in Copyright Law: An Anglo-American Comparison" Free Download
Santa Clara Computer and High Technology Law Journal, Vol. 34, 2017

ILANAH SIMON FHIMA, Institute of Brand and Innovation Law, Unversity College London
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Fairness stands at the crossroads of copyright law. The concept is present in the exceptions to copyright in both the U.S. and the U.K., seeking to balance the interests of copyright owners and users, as well as the needs of the public in receiving information. The U.S. and U.K. adopt different approaches to how the defenses should be structured, with the U.S. having an open list of which types of use can benefit, leaving this for judges to develop in response to specific fact patterns and changing conditions before them. On the other hand, the U.K. has a list, pre-determined by the legislator, of which uses can benefit. Both use the notion of fairness to moderate between different interests at stake, and much of this piece is devoted to documenting how the factors used to determine whether use is fair are in fact very similar. However, it is argued that the open versus closed list approach does make a big difference to the likely outcomes in the jurisdictions, by giving U.S. courts the license to privilege the type of use over the countervailing interests of the copyright owner in a way that is just not open to U.K. judges.

"The New Separability" Free Download
Vanderbilt Journal of Entertainment & Technology Law, Forthcoming
University of Miami Legal Studies Research Paper No. 17-28

LILI LEVI, University of Miami - School of Law
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In Star Athletica v. Varsity Brands, the Supreme Court recently unveiled a new approach to separability. Because copyright law protects expression, not function, aesthetic features of useful articles are eligible for copyright protection only if they are separable from the functional work in which they are incorporated. But the Copyright Act does not define separability, and Star Athletica is the latest judicial effort to try to fill that void. Unfortunately, the new separability is open to a wide range of critiques. Relatively low-hanging fruit are the vagueness and indeterminacy of the new test; the Court’s unsatisfactory attempts to avoid defining function; the threat of overprotection resulting from the opportunistic litigation the Court invites; and the uncertainty regarding the deterrent effects on overprotection of copyright’s other limiting doctrines.

But there is a deeper, less visible problem as well. By focusing only on the protectability of the particular designs at issue in an infringement case, neither Star Athletica’s new separability test nor copyright’s other limiting doctrines address the elephant in the room: the possible market impact of an aggregation of copyright registrations of design features with slight variations. Varsity Brands registered 200 copyrights in variations of its similar uniform designs. Should this be considered a problem in its market? A strategy of covering the design field can have powerful foreclosure effects on the market for useful works, particularly in markets featuring standardization and high switching costs. Thus, the real threat today to what Congress was trying to protect with the separability requirement lies not in the individual copyright registration for an aesthetic design or the individual infringement suit, but in the business strategy of copyright aggregation for aesthetic elements of functional works in some types of markets. Therefore, even if (arguably) Star Athletica came out right on the separability of the particular designs it addressed, it missed that bigger issue. Instead of opting for illusory simplicity, the Court could have gone further to resolve the difficult problem of functionally-integrated expression had it defined function through the lens of aggregate anti-competitive effects and developed a workable theory of copyright abuse.

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