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Everything You Want: The Paradox of Customized Intellectual Property Regimes
No full textSpecial interest groups share a dream: enacting legislation customized for, and hopefully drafted by, their industry. Customized rules created via legislative capture, though, are the worst case scenario from a public choice perspective: they enable narrow interests to capture rents without generating sufficient societal benefits. American intellectual property law offers useful case studies in legislative capture: special interests have created their own rules three times in the past forty years with the Semiconductor Chip Protection Act, Audio Home Recording Act, and Vessel Hull Design Protection Act. Paradoxically, though, these customized IP systems have consistently disappointed their drafters: all three of these systems lie in desuetude. This result challenges the conventional wisdom about regulatory capture by special interests, suggesting there is less to fear from legislative capture than most legal scholars believe, in intellectual property and beyond. The puzzle is why, when given free rein to design the rules that govern them, interest groups have done such a poor job in seizing that advantage.
This Article brings together two scholarly debates. The first is within intellectual property: should IP doctrines be tailored by industry or comprise rules of general application? The second is within public choice: how risky is regulatory capture by special interests?
The Article identifies two key reasons for the ineffectiveness of customized regimes. First, industry groups are fragile, fractal-like coalitions of disparate interests that often fracture between creators and copyists. Groups must choose between narrower, more politically attainable legislation and broader, more rewarding proposals that strain the coalition. Second, interest groups embed current business models and technologies into these systems, making regulation vulnerable to disruptive innovation. It explories how these findings affect proposals for customized regimes for artificial intelligence, weather data, traditional knowledge, privacy, and fashion. The Article concludes with a cautionary tale for interest groups that is otherwise welcome news: customized regimes are often less effective, and less threatening, than previously supposed
A Matter of Facts: The Evolution of Copyright’s Fact-Exclusion and Its Implications for Disinformation and Democracy
No full textThe Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them deal with facts per se but instead with adjacent and related copyright doctrines. A close look at these cases, as well as at relevant legislative history, uncovers provocative aspects of the fight over facts through the nineteenth and twentieth centuries. This fight is really a debate over the evolving place of human labor and the contours of social progress regarding the production of facts in crucial periods of economic and political development. The nature of “facts” and their increasingly central role in governance and technological progress puts pressure on their control and manipulation, including by and for businesses and democratic institutions, such as legislatures and agencies. Revisiting this history amplifies the need for a broader copyright fact-exclusion and a richer public domain that will lead to doctrinal clarity for our digital age. It also has political implications for how to consider the contestability of facts in the twenty-first century as a matter of access to information and the stabilization of societal institutions – such as law, science, and a free press – that are critical for sustaining U.S. democracy
Whither the Monograph?: Changes to the ABA Standards on Library and Information Resources and Their Unintended Consequences for Legal Scholarship
No full textStanhope Estate LLC v. Dominquez
No full textThe pro se tenant filed an Order to Show Cause seeking restoration to possession after a default judgment led to eviction. The landlord’s counsel failed to appear on time, exhibiting inappropriate behavior when contacted by court staff. As a result, the court granted the tenant’s motion by default, vacating the judgment and warrant of eviction, and ordered the tenant’s immediate restoration to possession. The court set a later date for the landlord’s counsel to present cause for avoiding sanctions and possible referral to a disciplinary committee due to his conduct
International Issues in Family Law: An Annotated Bibliography
No full textThis bibliography addresses international legal issues that may be of special interest or significance for family law attorneys
