A Theory of IP's Negative Space

Several recent case studies have explored industries in what Kal Raustiala and Christopher Sprigman have described as intellectual property's "negative space": areas in which creation and innovation thrive without significant protection from intellectual property law. These include such diverse industries as fashion, cuisine, magic tricks, stand-up comedy, typefaces, open source software, sports, wikis, academic science and even roller derby pseudonyms. Most scholarship in the area has focused on case studies of particular industries and social movements that occupy IP's negative space. This Article looks deeper into the nature of IP's negative space itself, seeking a unifying theory of what makes a type of work well suited to IP's negative space. The emerging theory sheds light onto what may make a lack of protection preferable to protection for certain types of works and gives us a new tool for optimizing intellectual property law to promote creation and innovation

The Adventure of the Shrinking Public Domain

Several scholars have explored the boundaries of intellectual property protection for literary characters. Using as a case study the history of intellectual property treatment of Arthur Conan Doyle\u27s fictional character Sherlock Holmes, this Article builds on that scholarship, with special attention to characters that appear in multiple works over time, and to the influences of formal and informal law on the entry of literary characters into the public domain. While copyright protects works of authorship only for a limited time, copyright holders have sought to slow the entry of characters into the public domain, relying on trademark law, risk aversion, uncertainty aversion, legal ambiguity, and other formal and informal mechanisms to control the use of such characters long after copyright protection has arguably expired. This raises questions regarding the true boundaries of the public domain and the effects of non-copyright influences in restricting cultural expression. This Article addresses these questions and suggests an examination and reinterpretation of current copyright and trademark doctrine to protect the public domain from formal and informal encroachment.

Fear and Loathing: Shame, Shaming, and Intellectual Property

This paper investigates the relationship between intellectual property protection, shame, and shaming. Although some scholars have examined shame and shaming as they relate to criminal law and behavior, none have considered how shame and shaming govern intellectual property and copying behavior. This paper identifies and focuses on two significant intersections: First, shame shapes the behavior of would-be copiers, who abide by anti-copying norms even in the absence of formal intellectual property protection. Second, public shaming shapes the behavior of intellectual property owners, who refrain from aggressively enforcing their rights to avoid being identified as bullies or trolls. These two shame/shaming effects have opposing results — on one hand, restriction on copying, and on the other, the freedom to copy — but they unite to establish and enforce intellectual property “negative spaces” where innovation and creation thrive without significant formal intellectual property protection or enforcement. In areas beyond the reach of formal intellectual property protection, shame helps define the boundaries of informal or norms-based intellectual property practices. In areas governed by formal intellectual property protection, shaming helps define the boundaries of rights holders’ enforcement forbearance. The result of these effects is an overlay of shame- and shaming-driven behavior that sits atop, and informally adjusts, the boundaries of formal intellectual property protection. This, in turn, requires us to adjust our thinking about the ideal boundaries of formal protection. Shame and shaming are not suitable substitutes for formal law, nor are they miracle cures for law’s failings, but they may act as guideposts for determining where to draw the lines of formal legal protection

Intellectual Property\u27s Negative Space: Beyond the Utilitarian

A growing body of scholarship addresses intellectual property’s “negative spaces”: areas in which creation and innovation thrive without significant formal protection from intellectual property law. Negative space scholars have, for the most part, taken a utilitarian approach, using case studies to examine the relationship between negative spaces and economic incentives for creation and innovation. For a full understanding of intellectual property’s negative spaces, however, we must examine them not only as they relate to incentive and efficiency considerations, but also as they relate to alternative conceptions of intellectual property, such as those based on labor-desert, personality, and distributive justice theories. This paper undertakes such an examination. The result suggests areas of misalignment between traditional intellectual property rights and remedies and the interests of many creators and innovators

Social Justice and Copyright\u27s Excess

My life is real. So when I hear about an editor asking: What’s up with my output? I’m like: What’s up with you even commenting on my life? Niggas don’t know my life. That’s the bourgeoisie approach that I get offended by because this ain’t no bubble. This ain’t no vacuum we doing this music out of. That’s why people connect to the pain in it. Because it’s real. That’s the part they should respect. These radio hits, these charts, they don’t validate the truth and the message. That’s when I start to be like, “Okay, you ain’t got a record on radio. You ain’t put an album out officially, so you’re an underachiever.” That’s where I get offended because let’s restart this whole situation. The metrics and the gauge of success, and of impact on the culture. It don’t got shit to do with Billboard, it don’t got shit to do with SoundScan. It don’t got shit to do with any of these platforms that the business created. This shit is a culture. This shit is our life. You understand? So in between my projects does it take a year or two, or another artist that live a real life? Does it take them a year to put a project out? Because he wants to retain ownership. He wants to do what they refuse to let you do and that’s control his own destiny. He don’t wanna be exploited by the music industry that been traditionally exploitive to our cre- ators. Then he end up on lists like the Top 25 Underachievers. -Rapper Nipsey Hussle, October 201

Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence

In 1993, the Hawaii Supreme Court held in Baehr v. Lewin that same-sex couples denied the right to marry could state a claim for sex discrimination. With that decision, an argument that had previously been primarily a matter of academic debate was thrust into the center of one of the defining cultural wars of our time. Following Baehr, same-sex couples filed lawsuits in at least eleven states. In the past few years, the highest state courts in Vermont, Massachusetts, New Jersey, New York, and Washington, as well as intermediate courts in Arizona and Indiana, have ruled on the issue; as of May 2007, appeals are pending in the highest courts in California, Connecticut, and Maryland. Some suits have been won by plaintiffs, leading either to marriage (Massachusetts) or civil unions providing all of the benefits of marriage (New Jersey and Vermont). Others, largely in closely divided opinions, have been lost by plaintiffs (New York and Washington). But while sex discrimination has been argued by the plaintiffs in each of these cases, no state high court since Baehr has found that denying a same-sex couple the right to marry successfully states a sex discrimination claim. Rather, the subsequent decisions have either ignored or rejected sex discrimination arguments. Indeed-and most troubling-several of the more recent opinions rejecting same-sex couples\u27 claims to the right to marry have actually relied in part on sex stereotypes, even as they reject arguments that such stereotypes are embodied in and perpetuated by exclusionary marriage laws. This Article considers the sex discrimination arguments in the context of the flurry of recent decisions issued by state courts and the arguments presented by parties and amici before those courts

The Satellite Cell in Male and Female, Developing and Adult Mouse Muscle: Distinct Stem Cells for Growth and Regeneration

Satellite cells are myogenic cells found between the basal lamina and the sarcolemma of the muscle fibre. Satellite cells are the source of new myofibres; as such, satellite cell transplantation holds promise as a treatment for muscular dystrophies. We have investigated age and sex differences between mouse satellite cells in vitro and assessed the importance of these factors as mediators of donor cell engraftment in an in vivo model of satellite cell transplantation. We found that satellite cell numbers are increased in growing compared to adult and in male compared to female adult mice. We saw no difference in the expression of the myogenic regulatory factors between male and female mice, but distinct profiles were observed according to developmental stage. We show that, in contrast to adult mice, the majority of satellite cells from two week old mice are proliferating to facilitate myofibre growth; however a small proportion of these cells are quiescent and not contributing to this growth programme. Despite observed changes in satellite cell populations, there is no difference in engraftment efficiency either between satellite cells derived from adult or pre-weaned donor mice, male or female donor cells, or between male and female host muscle environments. We suggest there exist two distinct satellite cell populations: one for muscle growth and maintenance and one for muscle regeneration