The Fall semester is underway here at the Law School, and I would like to welcome as our student guest blogger for September 3L Ashley Heard. Ashley is originally from New Berlin, Wisconsin, and is interested in employment law and appellate litigation. Her undergraduate education focused on marketing, graphic design and photography, and religious studies.
I am pleased to announce that our guest Alumni Blogger for March is Ryan Murphy ’04. Ryan is the General Counsel at Edgerton Contractors, Inc., and is also an adjunct professor in the College of Engineering, where he teaches Engineering Law to senior- and graduate-level students.
Many thanks to our previous guests, Jason Roberts ’10 and 3L Steven Wah.
It’s almost the time of year when people wonder what size television they can use to display the SuperBowl on. To answer that, I am resurrecting my post from two years ago. Average screen sizes have probably not increased enough to change my conclusion.
Our August student guest blogger will be 2L James Wold. James is originally from Janesville, Wisconsin, and has worked for over a decade as a sports editor. He is interested in sports law, particularly international sports law. Many thanks to our previous guest, 2L Erik Eisenheim.
Our June guest blogger with be rising 2L Erik Eisenheim. Erik is originally from Marinette, Wisconsin, currently lives in Green Bay, and is interested in antitrust law, telecommunications law, securities regulation, and constitutional law. Many thanks to our previous guest, 3L Amy Heart.
Our May guest blogger with be 3L Amy Heart. Many thanks to our previous guest, 3L Elizabeth Oestreich.
My previous two posts on the upcoming Nies Lecture (Thursday, April 16, at 4:30pm — it’s not too late to register!) attempted to sketch out where I think Prof. Smith is headed, based on the abstract and his previous work. In this post I want to reflect for a moment on the implications of viewing copyrights as a type of semicommons.
Copyright was born, in the eighteenth century, with a focus on who had the right to print, publish, and reprint works of authorship. That is, the concern was to exclusively reserve the manufacture of complete works — books, maps, and nautical charts — to the person who created them, or any downstream purchaser of those rights. Although the copyrighted work is intangible — it is the particular creative expression that is embodied within a book, map, or chart — for the first century or so of its existence that expression as a practical matter had a one-to-one correlation with physical objects. In that realm, it is easy to conceive of the property rights assigned by copyright, and the open access rights to the public domain, as dividing lines dividing up an imaginary space — this tract over here is the book Moll Flanders, which is owned by X; that tract over there is public domain, and thus can be used by anyone.
Over the course of the nineteenth century and into the early twentieth, that early, simple framework broke down as courts embraced the notion that the intangible object protected by copyright could be infringed in ways other than reprinting physical copies of the original. Continue reading “Mapping Out the Copyright Semicommons”
The title of the 2015 Nies Lecture, being given by Harvard Law Prof. Henry Smith on Thursday, April 16th, at 4:30pm (register here), is “Semicommons in Fluid Resources.” What’s a “semicommons,” and what does it have to do with intellectual property? (I should note that I haven’t talked to Prof. Smith about his lecture; Tuesday’s post and today’s are based just on the abstract read in light of Prof. Smith’s previous scholarship.)
Before I go further, let me recap Tuesday’s post. Prof. Smith has, in a series of articles, laid out a theory of property law that takes into account the informational costs of assigning property rights in various ways. Some ways of describing who has a certain right, and monitoring whether that right is being respected, are very concise: “Kerry owns that red ball.” “Hey, that’s not your ball, it’s mine!” I called these object-based rules, but Prof. Smith calls them “exclusivity rules.” The idea is the same: saying Kerry has the exclusive right to use the red ball for any purpose is a short and easily comprehended way of assigning all uses of that particular object to Kerry. It’s easy to identify who Kerry is, what the object is, and what Kerry (or anyone else) can do with it.
But that’s not the only way to assign rights to objects. Instead of giving all uses of a particular object to one person in an undivided lump, we could instead specify various uses of the object under various conditions, and say that different people can engage in those uses. In other words, we could manage access to the ball. Continue reading “The 2015 Nies Lecture: IP as Semicommons”
I’m very excited about this year’s Nies Lecture, which will be delivered by Prof. Henry Smith of Harvard Law School in just a little more than a week — Thursday, April 16th, at 4:30pm. (Register now to attend!) The title is “Semicommons in Fluid Resources,” but that only hints at the depth of the waters, so to speak, that Prof. Smith is likely to explore. As I understand it, the topic is nothing less than the nature of property itself, and how some forms of it — rights to water, and intellectual property — occupy a “middle ground” between communal governance and individual ownership. That has important ramifications for copyright law in particular, in which the dividing line between common goals and individual incentives lies at the heart of numerous doctrines.
The issue is this: suppose you have some sort of resource that multiple people want to use. Say it’s a particular piece of land. As Smith has written previously, there are two basic ways of specifying rules for what people can do with that resource: you could draw lines around objects, or you could draw lines around uses. That is, you could identify a particular object, such as a plot of land, and say that one person has the right to decide all permitted uses of it. (Or that everyone has the right to decide what they will do with it, turning it into a commons, or no one does, turning it into a forbidden zone.) Alternatively, you could draw lines around uses, not objects, and say that person X has the right to engage in activity A using the piece of land in question, and spell out rules governing each person or set of persons and telling them what uses they can make of the land and which they can’t, and under what conditions.
As Smith has argued, these different methods are best viewed as lying on a spectrum. Continue reading “The 2015 Nies Lecture: What Is “Intellectual Property,” Exactly, and How Does It Relate to Water Law?”
Prof. David Papke has a new article in print, entitled “Perpetuating Poverty: Exploitative Businesses, the Urban Poor, and the Failure of Reform,” appearing in 16 St. Mary’s Law Review on Race & Social Justice 223 (2014). Here is the abstract:
While rent-to-own outlets, payday lenders, and title pawns operate in suburban and rural areas, these exploitative businesses are most concentrated in America’s inner cities. The businesses’ highly crafted, standardized contractual agreements are central in their business models and for the most part enforceable in the courts. What’s more, the contractual agreements and business models are so sophisticated and adjustable as to make them virtually impervious to regulation or legislative reform. The businesses as a result continue not only to exploit the urban poor but also to socioeconomically subjugate them by trapping them into a ceaseless debt cycle. Profits go up when the urban poor cannot pay up, and rent-to-own outlets, payday lenders, and title pawns take advantage of urban poverty while simultaneously increasing and perpetuating it.
An earlier draft of the paper appeared on SSRN.
Our April guest blogger with be 3L Elizabeth Oestreich. Elizabeth is from Fond du Lac and is interested in labor and employment law, family law, and general civil litigation, although she has heard that law school interests do not necessarily determine career paths. Many thanks to our previous guest, 1L Jessica Lothman.
Our March guest blogger with be 1L Jessica Lothman. Jessica is originally from Springfield, Illinois, but now considers herself a local. She is in her second year of the part-time program, is interested in public interest law, education law, and immigration law, and is an avid photographer. Many thanks to our previous guest, 1L Lauren Koehler.