Working Papers

Analogies in IP: Moral Rights

(to be submitted Spring 2019)

This Article critically examines the analogies scholars use to explain the special relation between the author and her work that copyright law protects under the doctrine of moral rights. The goal of this Article is to determine “when to drop the analogy and get on with developing the” content of the relation between the author and the work.” Upon examination, that moment approaches rather quickly: none of these analogies provide any helpful framework for understanding the purported relation. At worst, they are misleading rhetorical devices used to gain support for moral rights. At best, these analogies are first attempts at describing the relation between author and her work. So I assume that analogies are valuable as starting points for thinking about the relation between the author and her work, rather than explaining the nature of the relation. Even when viewed this way, however, the analogies raise more questions than they purport to answer. Because the analogies discussed do not explain the author-work relation, scholars must look elsewhere for arguments to support moral rights.   

Problems in Theory: Intellectual Property

(to be submitted Spring 2019)

This Article argues that there is no single foundational theory of intellectual property (IP) law, and that there ought not to be. Over the past decade scholars have become increasingly interested in—some might say obsessed by— “theories” of intellectual property law. They have two views. The Utilitarian View is that intellectual property law is grounded in maximizing innovation, or some other metric of economic utility. The Deontological View, on the other hand, argues that IP is grounded in non-utilitarian philosophical arguments, such as those put forward by Hegel, Locke, and Rawls. Neither view is “right.” For one thing, although IP has a constitutional basis, it does not have one coherent theory. For that reason, any attempt to “ground” IP in a single theory is bound to fail. For another, the Utilitarian and Deontological Views expect too much of their theories, or theory in general: one wishes evidence of a kind it can only partially provide; and the other wishes nonscientific claims provided, or were supported by, scientific evidence. Both overstate their claims; yet each presents useful systems of belief. What to do?

 

Although the conflict seems intractable, there is Pragmatic resolution. It involves three moves. First, we need to move past the idea that arguments from first principles can “ground” IP. Second, we need to drop the idea of any single coherent theory of IP. Third, we should focus our research on questions that directly relate to which theory, if any, is appropriate in particular cases. Many such questions have or are being studied, but a wide variety have not even been considered. Answers to these questions will aid courts and lawyers in arguing and deciding cases using existing legal tools. This includes tools developed by each theoretical approach.

 

In this light, the clash of IP theories is really just a disagreement about a problem that doesn’t exist. Both Views have useful features that can be implemented when appropriate; but neither provides (how could they?) a coherent picture that fundamentally answers questions about IP law. On a pragmatist account, law needn’t choose between competing foundational theories to resolve cases any more than one needs to choose to be a deontologist to resolve moral questions. Pragmatism proposes a monistic pluralism that has room for both Deontologists and Utilitarians. The remaining questions—questions about ends—can be resolved, probably unsatisfactorily to both Views, by compromise – but not by resort to theory.

The Unimportance of the Author in Copyright Law

 

Copyright law is at war with itself. On one side is the idea of the romantic author: the inspired, creative genius. On the other is the legal concept of authorship: copyright law’s expansive inclusivity in defining the author. Sometimes this internal wrangling is obvious – where computer programs themselves generate new “work” but copyright law requires human authors. Other times the fight takes places in distant corners of copyright doctrine – where copyright law must decide whether search engines and internet technologies infringe when they make copies of online content to facilitate searches. It is tempting to view the novelty in technology as creating novelty in legal disputes. But the fight is not new. History shows us that economic, technological, and legal factors have placed these two concepts in opposition before. But recent economic, technological, and legal developments threaten to break what in the past has only bent. Even as this tension increases, the allure of romantic authorship is both easy to overlook and hard to ignore. And here is the paradox: as copyright openly wages a war on the author, it continues to rely on the concept to perform routine doctrinal work. The question is, how long can it go on?

The Structure of Legal Rights

In this article I argue for a new conceptual framework that explains how law functions. This new conceptual toolkit provides a novel structure for analyzing and clarifying legal questions in a systematic way.

 
                                            Articles

The Confusion Trap: Rethinking Parody in Trademark Law

88 Washington Law Review 1021 (2013)

This Article suggests using existing doctrinal levers in trademark law to accommodate parodies in a more balanced fashion. To reach this conclusion, this Article examines the parody doctrine in U.S. trademark law using two lenses. The first lens is trademark doctrine itself. Here I explore the various approaches courts use to resolve trademark disputes involving parody. The other lens is copyright law. Though this lens I examine how courts deciding trademark parody disputes employ the Supreme Court’s most recent decision on parody in copyright, Campbell v. Acuff-Rose (1994). I also use this decision to examine the relationship between copyright and trademark parody claims. In other words, I ask the following question: how, if at all, are copyright and trademark claims related in parody cases?

 

Each perspective reveals something different. The first perspective shows that most courts resolve infringement claims by evaluating parody within some form of the likelihood of confusion test. It also shows that most courts assess dilution claims by analyzing parody as a form of noncommercial speech. The second perspective shows that copyright and trademark claims are related in a positive direction: if a parody case involves both copyright and trademark claims, courts always find for the defendant (no infringement) on both claims. Filtering the analysis through these two lens, I seek to sketch two revised parody tests — one for infringement and one for dilution. Both tests attempt to differentiate parody analyses from the traditional likelihood of confusion and dilution tests. These new approaches — which strengthen speech protections but do not create absolute defenses — account for the legitimate interests of both trademark owners and parodists.

An Empirical Analysis of Fair Use Decisions Under the Uniform Domain-Name Dispute-Resolution Policy

53 Boston College Law Review 65 (2012)

Since its inception in 1999, the World Intellectual Property Organization (WIPO) has resolved nearly 22,000 domain-name disputes under the Uniform Domain-Name Dispute-Resolution Policy (UDRP)—a mandatory arbitration policy implemented by the Internet Corporation for Assigned Names and Numbers (ICANN). The UDRP allows the holder of a legally protectable trademark to initiate proceedings to cancel a similar domain name or have it transferred to the trademark owner. Domain-name holders, though, have a number of defenses, including that they are using their domain names in a noncommercial, fair manner. Although several empirical studies have analyzed various aspects of the UDRP, none have specifically examined this fair use defense. This study does what others have not. It analyzes the fair use defense in decisions before WIPO. Using WIPO’s online decision database, this study makes two important findings. First, respondents from the United States are more likely than those from other countries to succeed on a fair use defense. Second, arbitrators from the United States are more likely than those from other countries to find that a respondent’s use of a domain name was fair. This means that, under the UDRP, respondents from the United States enjoy greater speech protections than those from other countries, and that arbitrators from the United States are more sympathetic to speech interests than arbitrators from other countries. To improve the UDRP, I propose two revisions. First, ICANN should adopt a choice of law provision stating that the law of the respondent’s home country governs fair use disputes. Second, ICANN should implement a panel assignment provision in fair use disputes that requires arbitrators to share the nationalities of the litigants.

Explaining the Supreme Court’s Shrinking Docket (with Ryan J. Owens) 

53 William & Mary Law Review 1219 (2012)

In recent years, the United States Supreme Court has decided fewer cases than at any other time in its recent history. Scholars and practitioners alike have criticized the drop in the Court’s plenary docket. Some even believe that the Court has reneged on its duty to clarify and unify the law. A host of studies examine potential reasons for the Court’s change in docket size, but few rely on an empirical analysis of this change and no study examines the correlation between ideological homogeneity and docket size. In a comprehensive study, the authors analyze ideological and contextual factors to determine the conditions that are most likely to influence the size of the plenary docket. Drawing on empirical data from every Supreme Court Term between 1940 and 2008, the authors find that both ideological and contextual factors have led to the Court’s declining plenary docket. First, a Court composed of Justices who share largely the same world view is likely to hear forty-two more cases per Term than an ideologically fractured Court. Second, internal and external mechanisms, such as membership change and mandatory jurisdiction, are also important. Congress’s decision to remove much of the Court’s mandatory appellate jurisdiction is associated with the Court deciding roughly fifty-four fewer cases per Term. In short, the data suggest that ideology and context have led to a Supreme Court that decides fewer cases. The Court’s docket is not likely to increase significantly in the near future. Unless Congress expands the Court’s mandatory appellate jurisdiction or the President makes a series of unconstrained nominations to the Court that increase its ideological homogeneity, the size of the Court’s docket will remain relatively small compared to the past. Because the Court’s case selection process is an important aspect of the development of the law, this Article provides the basis for further normative and empirical evaluations of the Court’s plenary docket.

Culture, Creativity, & Copyright

28 Cardozo Arts & Entertainment Law Journal 279 (2011)

Recent literature in copyright law has attacked the traditional theory that economic incentives motivate people to create. Although the onslaught of criticism has come from different directions, it all shares a similar goal: to move copyright law in a direction that reflects actual creative processes and motivations. This Article adds to and diverts from these accounts, arguing that creativity may be a product of memes: units of culture, analogous to genes, that replicate by human imitation.

 

A memetic theory of creativity focuses on memes as the reference point for thinking about creativity. Under this view, the creator is a brain with limited space, where memes compete for occupancy. Like other views, memetics takes account of environmental and biological factors responsible for creativity, such as nonmonetary motivations and the creator’s upbringing. But the memetic account of creativity is different from these theories in one important way: it uses memes to explain the driving force of culture and creativity. The idea that replicators play a role in cultural creation suggests, among other things, that copyright’s originality requirement should be heightened; that the derivate right should be loosened; that fair use should be retained; and that moral rights should be discarded or substantially revised.

Reasonable Perception and Parody in Copyright Law

2010 Utah Law Review 779 (2010)

When the Supreme Court decided that parodies should be given protection under the doctrine of fair use, it attempted to chart a clear course through the waters that had eddied since it last sailed through them forty-three years earlier. In the process, the Court sailed its ship in three primary directions, making the same number of holdings. First, a parody is a type of work entitled to fair use protection. Second, a work qualifies as a parody when it can “reasonably be perceived” as such. Finally, a work’s status as a parody is not determinative of whether it is fair: courts still must analyze the work using the § 107 fair use factors.

Despite the Court’s navigational guidance, the parodic sea still whirls with judicial uncertainty: noticeably absent from the Court’s decision and subsequent lower court decisions are methods for determining what can “reasonably be perceived” or who reasonably perceives the work. No one has systematically examined how lower courts have applied the “reasonably perceived” test, or how courts have used a finding of parody to inform their fair use analyses. This Article examines these issues and suggests that the Supreme Court failed to adequately articulate the foundational elements of this test, causing lower courts to apply the test in variety of ways. Paradoxically, however, this analysis shows that, after finding a parody existed, courts have been fairly uniform in their fair-use factor analyses.

If the first part of this Article reveals a stormy and poorly charted judicial sea, the second part proposes a new course by articulating a new reasonable perception test and modifying the subsequent fair use analysis. This test is built by deconstructing the current framework for analyzing a parody and then framing it in terms of reasonable perception. This also removes any factor-based analysis for parodic works. Deconstructing and then reconstructing the inquiry this way allows courts to apply the parody doctrine with greater accuracy and consistency. It also anchors the parody inquiry, keeping the judicial ship close to parody’s doctrinal dock.

In Search of (Maintaining) the Truth: The Use of Copyright Law by Religious Organizations

16 Michigan Telecommunications & Technology Law Review 355 (2010)

There are two primary reasons that religious organizations use copyright law: to preserve doctrinal purity and to censor others. This Article first explores these two objectives of religious organizations, detailing how such motivations take shape in the courts. Given these religious motivations for pursuing and enforcing copyright protection, this Article asks the following normative question: should religious organizations use copyright law to achieve these aims?'

Teaching Without Infringement: A New Model for Educational Fair Use

20 Fordham Intellectual Property Media & Entertainment Law Journal 453 (2010)

Although fair use is an intentionally vague doctrine, its application to education has been described as only one of two categories where outcomes remain “quite difficult to predict.” To combat this uncertainty, courts have looked to negotiated educational guidelines, which Congress included in its House of Representatives Report accompanying the Copyright Act of 1976. Courts’ use of the guidelines has had two unintended and destructive consequences. First, it erroneously gave the guidelines the appearance of law under § 107’s fair use analysis, sometimes inadvertently characterizing them as setting maximum limits on permissible copying. Second, it forced educational institutions to rely on the guidelines as the law, improperly crafting their own copyright policies to reflect the guidelines’ contours. Educational institutions began using the guidelines as maximum limits on allowable copying under their policies, constraining their instructors’ ability to teach effectively.

To remedy these problems, this Article proposes a new model for evaluating educational fair use: the administrative agency. Although previous scholars have delineated new approaches to copyright infringement and fair use, few deal explicitly with fair use in education. That is exactly what this Article does. Building off of a previous scholar’s suggestion that Congress create an agency to administer fair use, this Article takes an additional step by creating a model that develops and enforces regulations specific to educational fair use. This new agency is likely to reduce uncertainty for educators, slenderize educators’ risk of litigation - thereby simultaneously decreasing educational expenses and increasing the amount of time and money spent on educational advancement - and substantially ameliorate, if not eliminate, the guidelines’ negative effects on education.

Mo’ Money, Mo’ Problems: Should Appellate Courts Have Nonparty Jurisdiction Over Lawyers’ Appeals From Nonmonetary Sanctions?

78 University of Cincinnati Law Review 183 (2009)

Over the past two decades, the circuit courts have confronted the jurisdictional question of when a non-party attorney who has been reprimanded by a trial judge may properly appeal from the reprimand. The circuit courts have given three different answers to this question: the non-party attorney may properly appeal (1) only when monetary sanctions are imposed; (2) only when the reprimand is 'explicit and formal'; or (3) when the reprimand is in the 'nature of a sanction.' After categorizing, explaining, and analyzing these different approaches, this article proposes a functionalist, factor-based, theoretical model that courts can use to determine whether appellate jurisdiction is proper when the non-party attorney appeals from a judicial reprimand.

Register Trademarks and Keep the Faith: Trademarks, Religion, and Identity

49 IDEA 233 (2009)

Religions frequently wage battles in court over the use of various religious trademarks. These battles, however, are not directed toward winning traditional trademark rights. At the heart of these disputes is a struggle to protect religious identity. This article argues that religions use trademark law to protect their identities because there are no other viable legal means available. Nevertheless, trademark law cannot wholly protect religious identity because of its focus on consumer perception. Because of the deficiency provided by current trademark law, this article proposes a new conceptual framework for resolving these disputes.

 

Books

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Thoracic outlet syndrome occurs when some structure—such as a muscle, an extra rib, or a malformation—compresses the nerves and/or veins and arteries in the lower neck and, sometimes, the upper chest. Nerve compression can cause pain, numbness and weakness in the neck, chest, upper back, shoulder, arm, and hand. Compression of the artery or vein can cause blood clots, arm swelling, and other symptoms. The purpose of this book is to assist patients in understanding how to determine whether they have thoracic outlet syndrome (TOS), to find a physician and therapist skilled in evaluating and treating TOS, and, ultimately, to ensure that they receive the most effective treatment for their TOS.

This book should provide you with quick, accessible information that will enable you to make more educated choices about your own diagnosis and treatment plan, including tools that will allow you to ask your medical provider probing questions and, I hope, gain a better outcome from your treatment. A TOS patient whose doctor has recommended surgery, for example, should be able to ask relevant questions about surgical technique, the risks, and experience of the surgeon. And the TOS patient should be able to use the answers to make an educated decision about whether to pursue surgery with that particular surgeon, or at all. The same should be true for treatments such as physical therapy or massage, as well as other treatments that are not often mentioned, considered,
or known by doctors.

TOS patients at any stage of the condition should be able to use this book. I sincerely hope that this book is helpful to you and, in whatever way possible, improves your health.

 

- D.A. Simon, 2018