Copyright (c) 2010 All rights reserved. http://works.bepress.com/christina_bohannan Recent documents in Christina Bohannan en-us Fri, 12 Feb 2010 23:56:33 PST 3600 http://works.bepress.com/christina_bohannan/4 http://works.bepress.com/christina_bohannan/4 Thu, 11 Feb 2010 09:24:20 PST In an age of IP expansionism, the doctrine most explicitly concerned with limiting IP overreaching has no defensible basis in IP policy. "Misuse" relates to the IP holder's use of licenses and other arrangements to obtain rights "beyond the scope" of a statutory IP grant, but the doctrine has not established adequate principles for identifying the practices that should be condemned. The misuse doctrine evolved in patent law and concerned the tying of patented and unpatented goods. Courts held that such tying violated federal patent policy by expanding the statutory monopoly to include a second product not covered by the patent claims. Since then, misuse has expanded to cover many other practices and also into copyright law, reaching to package licensing of related patented or copyrighted goods, restraints on a licensee's ability to produce competing technologies, and requiring royalty payments beyond the expiration of the patent or copyright term. Much of the case law has embraced an antitrust standard for misuse, which is fairly coherent but is not faithful to core IP values of promoting innovation and protecting access to the public domain. These defects in misuse doctrine are particularly problematic given the nature and severity of the penalty. A finding of misuse renders the IP right unenforceable until the misuse is "purged." One must therefore question whether the benefits of remedying misuse outweigh the social costs of foregone IP enforcement. This article argues that misuse doctrine has been shooting at the wrong targets. Many cases applying an antitrust standard for misuse emphasize market power in the primary (typically, patented) product as the key component. These decisions incorporate exaggerated concerns about "leverage" and avoid the issue that should be their focus, which is foreclosure of competing technologies or the public domain. Other decisions emphasize attempts to expand IP rights beyond their statutory scope; however, every license goes beyond literal IP scope, and the decisions provide no calculus for distinguishing permissible from impermissible expansion. This paper argues that if misuse is really to be used as an instrument of IP policy and is to be confined to those practices that are serious enough to warrant its severe remedy, misuse should be focused on foreclosure. That is, misuse should be found where the IP holder engages in a practice that unreasonably forecloses competition, future innovation or access to the public domain. Christina Bohannan Antitrust Arts and Literature Intellectual Property Law Law and Technology http://works.bepress.com/christina_bohannan/3 http://works.bepress.com/christina_bohannan/3 Mon, 17 Aug 2009 15:24:17 PDT Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant's speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is nonexistent or purely speculative.Potential explanations for copyright's anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright's role in encouraging creative expression does not obviate First Amendment concerns. Rather, it provides a way to reconcile copyright law and free speech. Drawing substantially from First Amendment cases holding that speech restrictions must be justified by an important or a compelling governmental interest, this article argues that the First Amendment requires real proof of harm to the copyright holder's incentives in order to impose liability for copyright infringement. It also explores the types of harm that might arise in copyright infringement cases and considers whether the First Amendment permits recognition of these types of harm. The article concludes that demonstrable market harm is cognizable under First Amendment principles, but that, except in cases involving the use of unpublished works, recognition of harm to the reputation of copyrighted works, the author's right not to speak or associate, or the copyright holder's privacy interests is generally not compatible with the First Amendment. Christina Bohannan Arts and Literature Intellectual Property Law Law and Technology http://works.bepress.com/christina_bohannan/2 http://works.bepress.com/christina_bohannan/2 Mon, 02 Mar 2009 17:45:09 PST AbstractCopyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant's speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is purely speculative.Potential explanations for copyright's anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright's role in encouraging creative expression does not obviate First Amendment concerns. Rather, it provides a way to reconcile copyright law and free speech. Drawing substantially from First Amendment cases holding that speech restrictions must be justified by a governmental interest, this article argues that the First Amendment requires real proof of harm to the copyright holder's incentives in order to impose liability for copyright infringement. It also explores the types of harm that might arise in copyright infringement cases and considers whether the First Amendment permits recognition of these types of harm. The article concludes that although demonstrable market harm is cognizable under First Amendment principles, recognition of harm to the reputation of copyrighted works, the author's right not to speak or associate, or the copyright holder's privacy interests is generally not compatible with the values of free speech. Christina Bohannan Constitutional Law Intellectual Property Law http://works.bepress.com/christina_bohannan/1 http://works.bepress.com/christina_bohannan/1 Fri, 27 Feb 2009 09:10:28 PST AbstractCopyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant's speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is purely speculative.Potential explanations for copyright's anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright's role in encouraging creative expression does not obviate First Amendment concerns. Rather, it provides a way to reconcile copyright law and free speech. Drawing substantially from First Amendment cases holding that speech restrictions must be justified by a governmental interest, this article argues that the First Amendment requires real proof of harm to the copyright holder's incentives in order to impose liability for copyright infringement. It also explores the types of harm that might arise in copyright infringement cases and considers whether the First Amendment permits recognition of these types of harm. The article concludes that although demonstrable market harm is cognizable under First Amendment principles, recognition of harm to the reputation of copyrighted works, the author's right not to speak or associate, or the copyright holder's privacy interests is generally not compatible with the values of free speech. Christina Bohannan Law and Technology Constitutional Law Intellectual Property Law