The Supreme Court’s Chief Justice of Intellectual Property Law

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions that call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as the most prolific author of patent law opinions in the history of the Supreme Court. Thus, at a time when intellectual property has become one of America’s most important assets, Justice Thomas has played an important role in the evolution of America’s innovation law and policy.This Article is the first to highlight the significance of Justice Thomas’s intellectual property jurisprudence. It considers how Justice Thomas emerged as the Roberts Court’s “chief justice” of intellectual property law, authoring more majority opinions than even colleagues known for their intellectual property law prowess. The Article analyzes Justice Thomas’s key intellectual property opinions to understand their importance. It also highlights the distinguishing features of these opinions, including their faithful adherence to textualism, appreciation for the role of remedies, attention to technological and business context, awareness of the impact on intellectual property practitioners, and surprising unanimity. The Article concludes that Justice Thomas’s deep respect for the constitutional separation of powers is at the heart of his intellectual property jurisprudence, as his opinions invite and sometimes nudge Congress to play its leading role in crafting intellectual property law

Intellectual Property, Innovation, and the Future: Toward a Better Model for Educating Leaders in Intellectual Property Law

Intellectual property (IP) sits at the center of the global economy. Today, producers and users of intellectual property come from both developed and developing nations. Intellectual property matters as much to China and India as it does to Germany and the United States. This reality has driven a monumental demand for lawyers who have expertise in intellectual property law. These lawyers are the new leaders in intellectual property law. The global demand for intellectual property law-trained lawyers triggered a big bang in the creation of advanced intellectual property law programs (IP Programs) at American law schools. The new leaders in intellectual property law from around the globe now gather and learn together in these IP Programs. This Article describes the big bang in advanced intellectual property law programs and the nature of the academic programs that have evolved in its aftermath. The Article argues that by delivering on many of the curricular reforms proposed by the Carnegie Report on Educating Lawyers, IP Programs can better educate these new leaders, and the Article presents a blueprint for doing so. The Article concludes that law schools should embrace their role as a gathering place for the new leaders in IP law and, in the process, become a forum to more deeply consider a variety of perspectives on the productive and just use of intellectual property

Leaky Covenants-Not-to-Compete as the Legal Infrastructure for Innovation

The flow of information that naturally occurs when employees change firms plays a vital role in spurring innovation. Numerous law review articles have explored how covenants-not-to-compete (“non-competes”) can impede this important information flow. In 1999 Professor Ronald Gilson published an influential article concluding that California’s ban on non-competes led to the rise of California’s Silicon Valley and the comparative decline of Massachusetts’ high technology corridor known as Route 128. Despite the scholarly praise for California’s approach, most states enforce non-competes that are reasonable. That may change, however, because many states are re-evaluating their non-compete laws to avoid Gilson’s cautionary tale about the fate of Route 128. But do states really need to ban non-competes in order to provide an inviting platform for innovation? This Article provides an answer to that important and intriguing question by examining, for the first time, whether technology firms actually enforce non-competes. Evidence from Washington State indicates that technology firms rarely enforce non-competes. In other words, non-competes are very leaky—knowledge workers move freely from one technology business to another in Washington just as they do in California. The Washington case study has crucial implications for all states. It suggests that states do not need to ban non-competes in order to foster innovation as many scholars contend. It also shows that leaky noncompetes provide better protection for trade secrets than a complete ban provides. States can offer a fertile legal infrastructure for innovation without banning non-competes by taking steps to assure that non-compete enforcement is leaky, including measures to address the potential chilling effect of non-competes. California, for its part, should embrace the so-called “trade secret exception” to its ban on non-competes to improve California’s legal infrastructure for start-ups and established firms that rely on robust trade secret protection

Recognizing the Liability of Social Hosts Who Knowingly Allow Intoxicated Guests to Drive: Limits to Socially Acceptable Behavior

Gradually, courts have joined these efforts to alleviate the harm caused by the intoxicated driver. A few courts have recognized an action in tort against those who contribute to drunken driving by serving intoxicating liquor. These courts have acted, in part, to relieve victims of the costs of drunken driving and to distribute the costs among those responsible for its occurrence. Washington courts should recognize the liability of a negligent social purveyor of alcoholic beverages. Courts need not be constrained from recognizing a common law cause of action because of competing social interests or legislative inaction. Washington courts should rule that a social host who has served a guest alcohol to the point of obvious intoxication has the duty to take reasonable steps to prevent the guest from operating a motor vehicle. While courts may and should extend liability via common law, supplementary legislative action is also desirable

Legal Protection for Software: Still a Work in Progress

This Essay traces the debate about legal protection for software from its early days to the present. It describes the issues that legislatures and courts have faced over the years and why many of those issues are back on the table today

A Brief Defense of Mass Market Software License Agreements

In the rapidly changing world of personal computer software, the end user license agreement ( EULA ) has endured. The EULA is a familiar component of most personal computer software transactions. Many commentators, however, have maligned the practice of standard form software licensing. A survey of the literature on the subject might lead one to conclude that there are only critics--and no proponents--of EULAs. Despite the din of criticism, EULAs continue to be widely usedby almost every mass-market software publisher, even though the cost of doing so is significant. This Article explains the value of EULAs for both software publishers and users, and why EULAs will be even more valuable for distributing the rich variety of information products available on the information superhighway. Given the benefits provided by EULAs, courts and legislatures should seek to validate their use. This perspective is particularly significant in light of the National Conference of Commissionerson Uniform State Laws and the American Law Institute\u27s efforts to draft an article of the Uniform Commercial Code which addresses software licensing (currently referred to as U.C.C.Article 2B ). This Article first introduces the various forms EULAs take, andthen explains the main advantages of EULAs. It argues that EULAs provide valuable information to end users, and that EULAs permit software publishers to offer the wide variety of rights that are associated with the features of today\u27s software products. This Article further explains why the ability to offer a variety of rights in a EULA will be even more important for the information products of the future. This Article concludes by proposing methods for improving how EULAs are used in the software contracting process

The Value of Dress in the Cecil Household, (c. 1550-1612)

This thesis considers how William Cecil (1520-1598), Lord Burghley, his family, and his household dressed. It investigates how the Cecil household from the middle of the sixteenth century to the early seventeenth century perceived dress and how they demonstrated their political power and social position through their clothing choices. The thesis concentrates on the clothing worn by individuals either every day or during ceremonial or special occasions and highlights the values given to different fabrics, colours, styles, and decorations found in the elite and non-elite wardrobes. Attention to these specific clothing choices and their continuities or changes allows the thesis to show how cloth and clothing was constructed and worn in early modern England and allows for a greater appreciation of England’s interconnections with Europe and the wider world. In addition, this thesis includes a new methodology for examining the early modern experience of dress. It combines a more traditional engagement with textual sources such as household accounts and letters alongside extant objects with historical reconstruction. This methodology moves beyond a linguistic or semiotic interpretive system for dress to investigate ‘materiality’ and lived practice in order to gain access into clothing as embodied practice. This methodology considers how the garments themselves shaped the household and its members as well as the crucial role artisans and craftsmen and craftswomen had in the creation and care of early modern garments. Thus, the thesis explores how cloth and clothing in Elizabethan and early Jacobean society became linked to abstract concepts such as power and authority through the more concrete individual, familial and household identities and associations of those who made, chose, gifted and performed them

Getting Serious About User-Friendly Mass Market Licensing for Software

Software publishers use standard form end user licenses (“EULAs”) in mass market transactions on a regular basis. Most software users find EULAs perplexing and generally ignore them. Scholars, however, have focused on them intently. In the past twenty years over a hundred scholarly articles have been written on the subject. Most of these articles criticize EULAs and argue that courts should not enforce them. In their critique of EULAs, some scholars examine the adequacy of the offer, acceptance, and consideration. Others discuss EULAs as part of the troublesome issue of standard form contracting, and whether standard forms, on balance, harm or benefit consumers. Still others focus on the intellectual property-contract law interplay. These issues are important to be sure, but there is little left to say. The issues have been talked to death. Despite all the scholarly debate, one important reality remains: EULAs are here to stay for the foreseeable future. Courts, by and large, have enforced EULAs, provided the software publisher gives the user a reasonable opportunity to review and the user makes a meaningful manifestation of assent. Given this reality, it is crucial to address an issue that scholars have thus far ignored: what can be done to make licensing more “user-friendly?” Specifically, what can be done to help people better understand the terms and conditions of EULAs, and what can be done to encourage software publishers to craft simpler, fairer, more understandable licenses? Part I of the article summarizes the heated debate about the use of mass market licenses in software transactions. Part II describes the typical contract-drafting process that leads to the creation of an unfriendly EULA. Part III argues that although software users and publishers share an interest in user-friendly licenses, serious obstacles get in the way. Parts IV through X then explore a series of ways to overcome these obstacles. First, the article explores the ways that lawyers and the software publishers that they work for can craft more readable EULAs. Second, it addresses the positive role that law school education could play in training lawyers to craft more user-friendly EULAs. Third, it describes how technology such as “shopbots” and XML can make EULAs more user-friendly by helping software purchasers find EULAs with the terms they want. Fourth, it comments on the advisability of applying “plain language” legislation to EULAs as a way of inducing software publishers to improve EULAs. The article concludes that the most powerful way to improve the userfriendliness of licensing is through new public interest non-government organizations (“EULA NGOs”) which use the mass communications capabilities of the World Wide Web.10 Using the Web, a EULA NGO could provide objective, expert, easy-to-read commentary on the pros and cons of particular EULAs to assist users in their purchasing decisions. A EULA NGO could also provide constructive feedback to software publishers about how to improve their licenses and describe and promote licensing best practices. Moreover, a EULA NGO’s commentary would create a valuable record of public comment about individual EULAs. This record could be used by a court in the event a user challenges or a software publisher attempts to uphold the enforceability of a EULA. The very existence and easy availability of this public record will provide a strong incentive for software publishers to improve the friendliness of their licensing

Contracts Mattered as Much as Copyrights

Scholars have begun to appreciate the fundamental role that contracts played in the development of copyrights. Contracts gave copyrights vitalilty. This article explores the network of book publishing contracts that formed the legal infrastructure for a pre-modern “internet” at the dawn of copyright law in Great Britain in the eighteenth century. Drawing on insights from archival research, the article shows how this network of copyright contracts advanced an important goal of copyright: the spread of ideas and information throughout all parts of society. Appreciating the historical significance of copyright contracts provides valuable context for modern debates about copyright policy. Indeed, contracts matter as much as copyrights in fostering innovation in the modern information economy because contracts enable the beneficial sharing of ideas and information. This insight about contracts is particularly vital for those judges and lawmakers who make decisions about innovation policy, including the scope of copyright law’s first sale doctrine and the enforceability of software license agreements