The Perspiration Principle,18 J. Marshall Rev. Intell. Prop. L. 463 (2019)

Should copyright be awarded in an instance where a work of authorship lacks inspiration and is instead simply the result of necessary and genuine hard work? Should patents likewise be offered to inventors whose achievements derive not from any flash of genius but from sweat and labor alone? In this Essay, Professor Lichtman revisits the economic case in favor of a perspiration principle under which hard work would be a sufficient trigger for intellectual property protection, even in instances where the resulting achievements lack the creative spark that patent and copyright law typically require

Brief of Amici Curiae 56 Professors of Law and Economics in Support of Petition of Writ of Certiorari

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant forum shopping, particularly by patent trolls. 44% of 2015 patent lawsuits were filed in a single district: the Eastern District of Texas, a forum with plaintiff-friendly rules and practices, and where few of the defendants are incorporated or have established places of business. And an estimated 86% of 2015 patent cases were filed somewhere other than the jurisdictions specified in the statute. Colleen V. Chien & Michael Risch, Recalibrating Patent Venue, Santa Clara Univ. Legal Studies Research Paper No. 10-1 (Sept. 1, 2016), Table 3. This Court should grant certiorari to review the meaning of 28 U.S.C. § 1400(b) because the Federal Circuit’s dubious interpretation of the statute plays an outsized and detrimental role, both legally and economically, in the patent system

Brief of Amici Curiae 56 Professors of Law and Economics in Support of Petition of Writ of Certiorari

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant forum shopping, particularly by patent trolls. 44% of 2015 patent lawsuits were filed in a single district: the Eastern District of Texas, a forum with plaintiff-friendly rules and practices, and where few of the defendants are incorporated or have established places of business. And an estimated 86% of 2015 patent cases were filed somewhere other than the jurisdictions specified in the statute. Colleen V. Chien & Michael Risch, Recalibrating Patent Venue, Santa Clara Univ. Legal Studies Research Paper No. 10-1 (Sept. 1, 2016), Table 3. This Court should grant certiorari to review the meaning of 28 U.S.C. § 1400(b) because the Federal Circuit’s dubious interpretation of the statute plays an outsized and detrimental role, both legally and economically, in the patent system

Cashing Out Children's Television

Under current rules, a television broadcaster is presumed to satisfy its obligation to air educational programming as long as it offers an average of three hours of self-described “educational” content each week.  I propose replacing this toothless presumption with one under which a broadcaster would be deemed to satisfy the obligation only if the broadcaster donates, in cash, to a qualifying educational nonprofit, the aggregate economic value of three weekly hours of television airtime.  The idea is to address an inconsistency that has undermined the traditional approach since its inception: the rules require broadcasters to air educational television because market forces would not otherwise create an adequate incentive for them to do so, but the same rules then rely on market forces to discipline broadcasters as they determine which programs are sufficiently “educational” in substance.  My proposal, by contrast, would strip unmotivated broadcasters of creative control, cash them out, and move the money instead to motivated nonprofits.  The burden placed on broadcasters would be the same as it is today; either way, the real cost to broadcasters is the lost opportunity to earn revenue on three hours of more profitable programming.  But the value created would be substantially more.  Broadcasters, in short, would no longer be told to provide educational television; they would simply be told to pay for it

Innovation through optimal licensing in free markets and free software. Sloan MIT Working paper series

Abstract: We consider openness in private and socially optimal licenses under conditions where network effects and multiperiod innovation are both possible. For private firms, we model a variety of possible business models from completely closed to fully open, and find that opening a platform can increase profits based on network effects exclusively, innovation exclusively, or both. A firm's ability to control downstream innovation gives it reason to rationally behave more like a social planner and even tolerate limited levels of piracy, interpreted as free user access. Further, open contracts with modest royalties offered to all developers can dominate closed Nash bargaining subcontracts with lead developers. We also find conditions when firms choose proprietary licenses despite innovation and network effects. In social planning terms, we find that optimal protection for reusable information is not arbitrarily long. Overlong protection interferes with the inputs to downstream innovation. Further, licenses must enforce shorter-than-privately-optimal disclosure terms. Otherwise, a prisoner's dilemma in private incentives limits free access to derivative work, essential for decentralized innovation. In modeling terms, we add to the recent literature on two-sided network effects by incorporating a production function on one side of the market. We also contribute a framing innovation that places several existing license types in a space suggesting that socially optimal but unexplored licenses might exist