Taking the Protection-Access Tradeoff Seriously

Law and economics scholarship has contributed much to our understanding of both the nature of intellectual property rights generally and the features of individual intellectual property regimes. Indeed it is hard to imagine a field other than antitrust law that is so explicitly governed by economic thinking. In authorizing the copyright and patent systems, Article I, Section 8 of the United States Constitution expressly incorporates a social welfare imperative as the basis for its grant of power.\u27 Certainly economists and economically oriented legal academics have given the field the attention it is due. I am far from being a sophisticated economic thinker, although I admire those who are and the insights they have brought to my understanding of what is at stake in intellectual property. My comments are more practical in nature. They involve the tension that arises throughout the law of intellectual property and unfair competition between protection of intellectual achievement and public access to intellectual products. This tension is reflected in the central questions: When are intellectual property rights appropriate and what is their proper scope? Economics seems to provide an apt description but an inadequate basis for answering these questions. And there lies, in my view, one of the reasons for the trend throughout intellectual property to enlarge property rights at the expense of access. For those of us who deem this trend problematic, economic analysis seems increasingly unhelpful in formulating a response protective of the public domain. The tension between protection and access pervades intellectual property and unfair competition law. The casebook Ed Kitch and I coauthored uses it as one of the themes that tie the disparate chapters of the book together. Protection or access is at issue whether the case involves a local barber who wants an exclusive property interest in the barbering business of Howard Lake, Minnesota, or the promisee of a contract who claims to have a property interest in the future performance of the promissor, or the firm that claims a property interest in the firm\u27s investment in the human capital of its workers, or the trademark owner who asserts a property right over portions of the English language, or the celebrity who seeks to capture gains from his or her celebrity status, or the more traditional cases involving constitutionally recognized authors and inventors. There should be little doubt that the trend throughout intellectual property and unfair competition is toward greater protection and diminished access. The Digital Millennium Copyright Act is a notorious example of a protectionist advance, as is the apparent willingness of the Patent and Trademark Office and the Federal Circuit to expand the realm of patent protection. But the trend is noticeable elsewhere as well. The adoption of the trademark dilution cause of action and the expanding protection against cyber-squatters have refocused trademark law away from its traditional function of prevention of consumer confusion toward one that confers substantial property rights on trademark owners. The protection of trade dress without proof of secondary meaning also favors property rights over rights of access. A similar rule applied to product designs and configurations would have created an even more damaging effect on competition, but the Supreme Court happily required proof of actual distinctiveness

The makeshift city: towards a global geography of squatting

This paper introduces a set of analytical frames that explore the possibilities of conceiving, researching and writing a global geography of squatting. The paper argues that it is possible to detect, in the most tenuous of urban settings, ways of thinking about and living urban life that have the potential to reanimate the city as a key site of geographical inquiry. The paper develops a modest theory of ‘urban combats’ to account for the complexity and provisionality of squatting as an informal set of practices, as a makeshift approach to housing and as a precarious form of inhabiting the city

Association of Variants in the SPTLC1 Gene With Juvenile Amyotrophic Lateral Sclerosis

Importance: Juvenile amyotrophic lateral sclerosis (ALS) is a rare form of ALS characterized by age of symptom onset less than 25 years and a variable presentation.Objective: To identify the genetic variants associated with juvenile ALS.Design, Setting, and Participants: In this multicenter family-based genetic study, trio whole-exome sequencing was performed to identify the disease-associated gene in a case series of unrelated patients diagnosed with juvenile ALS and severe growth retardation. The patients and their family members were enrolled at academic hospitals and a government research facility between March 1, 2016, and March 13, 2020, and were observed until October 1, 2020. Whole-exome sequencing was also performed in a series of patients with juvenile ALS. A total of 66 patients with juvenile ALS and 6258 adult patients with ALS participated in the study. Patients were selected for the study based on their diagnosis, and all eligible participants were enrolled in the study. None of the participants had a family history of neurological disorders, suggesting de novo variants as the underlying genetic mechanism.Main Outcomes and Measures: De novo variants present only in the index case and not in unaffected family members.Results: Trio whole-exome sequencing was performed in 3 patients diagnosed with juvenile ALS and their parents. An additional 63 patients with juvenile ALS and 6258 adult patients with ALS were subsequently screened for variants in the SPTLC1 gene. De novo variants in SPTLC1 (p.Ala20Ser in 2 patients and p.Ser331Tyr in 1 patient) were identified in 3 unrelated patients diagnosed with juvenile ALS and failure to thrive. A fourth variant (p.Leu39del) was identified in a patient with juvenile ALS where parental DNA was unavailable. Variants in this gene have been previously shown to be associated with autosomal-dominant hereditary sensory autonomic neuropathy, type 1A, by disrupting an essential enzyme complex in the sphingolipid synthesis pathway.Conclusions and Relevance: These data broaden the phenotype associated with SPTLC1 and suggest that patients presenting with juvenile ALS should be screened for variants in this gene.</p

The Nebraska Condominium Property Act

The purpose of this article is to analyze the concept of condominium, explain some of the legal problems involved, and determine if the Nebraska statute adequately solves them. Although condominiums could be used for residence, office, industry, business, or any combination thereof, this article is focused primarily on horizontal residential condominiums, with infrequent references to the other types. I. Introduction II. The Condominium Concept III. Condominium vs. Conventional Cooperative IV. FHA Mortgage Insurance V. Establishment of a Condominium VI. Common Elements and Expenses VII. Insurance VIII. Destruction of the Premises IX. The Undesirable Owner X. Tort and Contract Liability XI. Taxation XII. Waiver of the Regime XIII. Conclusio

Pattern Jury Instructions: The Application of Social Science Research

This article reviews some of the studies relating to jury decision making and the drafting of jury instructions. It then describes in greater detail some of the decisions made in the process of drafting instructions for Alaska and the federal system. The article concludes with observations regarding the role of the jury and the theoretical and practical problems of attempting to implement the research of social scientists in the real world. I. Introduction II. Social Sciences and Jury Instructions ... A. Kalven and Zeisel—The American Jury ... B. History of Jury Instructions ... C. Social Science Investigations III. Alaska Civil and Federal Criminal Jury Instructions IV. Implementing Social Science Into the Real World ... A. Balancing the Need for Specialized Language against the Goal of Juror Comprehension ... B. Practical Limitations on Simplifying Instructions ... C. Inherent Limitations on Instruction Reform V. Conclusion Appendice

Judicial Ethics: Searching for Consensus

An introduction to the symposium issue papers and comments that were originally presented at the annual meeting of the Conference of Chief Justices in August, 1986, in Omaha, Nebraska. The seminar on judicial ethics was developed by the University of Nebraska College of Law as part of its Program in Applied Ethics, a program financed by grants from the Peter Kiewit and Sons, Inc., Foundation and the Peter Kiewit Foundation

The Uniform Law Commissioners\u27 Model Sentencing and Corrections Act: An Overview

I. Introduction II. General Approaches … A. The Need for Legislative Leadership and Responsibility … B. The Need for Specificity … C. The Need for the Rule of Law in Sentencing and Corrections III. Major Underlying Themes … A. Establishment and Unification of Correctional Systems—Article 2 … 1. Overview of Article 2 … B. Sentencing—Article 3 … 1. Overview of Article 3 … C. Treatment of Offenders and Judicial Oversight—Article 4 … 1. Overview of Article 4 … D. Interests of Victims—Article 5 IV. The Drafting Process V. Conclusio