Copyright (c) 2009 All rights reserved. http://works.bepress.com/matthew_sag Recent documents in Matthew Sag en-us Sun, 31 May 2009 09:11:41 PDT 3600 http://works.bepress.com/matthew_sag/5 http://works.bepress.com/matthew_sag/5 Mon, 25 Aug 2008 14:45:13 PDT This article studies the rise of copy-reliant technologies - technologies such as Internet search engines and plagiarism detection software that, although they do not read, understand or enjoy copyrighted works, necessarily copy them in large quantities. This article provides a unifying theoretical framework for the legal analysis of topics that tend to be viewed discretely. Search engines, plagiarism detection software, reverse engineering and Google's nascent library cataloging effort, are each part of a broader phenomenon brought about by digitization, that of copy-reliant technologies. These technologies raise two novel, yet central, questions of copyright law. First, whether a non-expressive use that nonetheless requires copying the entirety of a copyright work should be found to infringe the exclusive rights of the copyright owner. Second, whether the transaction costs associated with copy-reliant technologies justify switching copyright's default rule that no copying may take place without permission to one in which copyright owners must affirmatively opt-out of specific uses of their works. Matthew Sag Forthcoming Articles http://works.bepress.com/matthew_sag/4 http://works.bepress.com/matthew_sag/4 Thu, 27 Sep 2007 12:09:46 PDT This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. This article empirically establishes that judicial decision making in relation to IP is significantly and predictably shaped by judicial ideology. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, we show that ideology is a significant determinant of cases involving intellectual property rights. However, our analysis also shows that there are significant differences between intellectual property and other areas of the law with respect to the effect of ideology. This analysis has important implications for the study of intellectual property. It also contributes to the broader judicial ideology literature by demonstrating the effect of ideology in economic cases. Matthew Sag Working Papers http://works.bepress.com/matthew_sag/3 http://works.bepress.com/matthew_sag/3 Wed, 07 Mar 2007 13:49:09 PST This article presents a new method of analyzing patent reform proposals through the use of differential impact analysis. Congressional efforts to address the crisis of confidence in the U.S. patent system have failed up to the present day. If Congress is to have any hope of passing much needed legislative reform to the Patent Act, the supporters of patent reform will have to unite behind a streamlined set of proposals that directly address the most pressing and unambiguous defects of the current patent system. To that end, we have proposed applying a test of differential impact to enable Congress to prioritize those reforms which will discourage the acquisition and assertion of bad patents without unduly prejudicing the interests of the holders of good patents. The differential impact approach elucidated in this article has at least three distinct advantages over other efforts to rewrite the patent system from the ground up. First, the differential impact approach provides a mechanism by which to evaluate competing claims for legislative resources. Second, the differential impact approach is an appropriate response to the empirical uncertainty surrounding optimal patent scope. Third, differential impact is consistent with the need to take the legitimate expectations of current stakeholders into account. Matthew J. Sag Published Articles http://works.bepress.com/matthew_sag/1 http://works.bepress.com/matthew_sag/1 Wed, 07 Mar 2007 13:49:08 PST Uncertainty as to the optimum extent of protection has generally limited the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This article explores the relationship between copyright scope, doctrinal efficiency and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law. The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use. Matthew J. Sag Published Articles http://works.bepress.com/matthew_sag/2 http://works.bepress.com/matthew_sag/2 Wed, 07 Mar 2007 13:49:08 PST This article is a broad reconceptualization of the role of fair use within copyright law. Fair use is commonly thought of as just one of many exceptions limiting copyright, in contrast, this article shows that fair use has actually enabled the expansion of copyright protection. Fair use has an important structural role that is often overlooked. First, copyright necessarily must balance intellectual property incentives with the protection of free speech and innovation; fair use constitutes that balancing mechanism. By establishing the outer limits of copyright, fair use in fact enables an expansive interpretation of author's rights within those bounds. Second, because copyright works best by providing flexible principles that can accommodate technological changes, fair use also constitutes the mechanism by which Congress has given the courts a large policy making role to ensure copyright's balance. This article explains this structural function of fair use, then shows how this theory should and does apply. In doing so, it also identifies two broad trends emerging in the case law that have previously not been recognized or articulated, despite their significance. These are the principles of consumer autonomy and medium neutrality. Matthew J. Sag Published Articles