The Free Exercise of Copyright Behind Bars

People in prison produce vast amounts of creative and expressive work—from paintings and sculptures to essays, novels, music, and NFTs—but they are rarely described as artists and their work is often not described as “art.” Prisoners also do not regularly take advantage of copyright law, the primary form of protection for creative works. They should. Copyright provides a strong set of rights that combines strains of free expression values with elements of property rights. Copyright confers dignitary and expressive benefits and, for some creators, financial rewards. As such, copyright can be a tool to help prisoners improve their lives, both while they are incarcerated and after they are released. In the prison context, copyright should be thought of as akin to a civil right and a part of the movement to reform the U.S. carceral system, empowering those who create. Moreover, because copyright is a right in intangibles, there is no reason that prisoners cannot or should not advance and vindicate their copyright interests just as they would if they were not incarcerated. In other words, copyright behind bars should not operate any differently than copyright in the free world. This Article first describes the enormous range of artistic work created by those who are imprisoned, as well as the prison system’s regular attempts to deter and suppress such work. The Article then explains how copyright law protects virtually all of these works and why copyright is valuable to prisoners and should become part of the carceral reform project. Finally, the Article argues that there is no reason to limit the exercise of copyright by those who are incarcerated and no justification for impinging on prisoners’ ability to create, disseminate, and profit from their expressive and artistic works

Human Capital as Intellectual Property? Non-Competes and the Limits of IP Protection

Non-compete agreements have become increasingly common in recent years, imposed on twenty to forty percent (or more) of employees in some industries, both in the knowledge-intensive fields where they might be expected but also in the service industries on low-wage workers. As non-competes have proliferated, they have become increasingly controversial. Much of the discussion revolves around whether the agreements help or hinder innovation and economic growth. While this is also accompanied by some concern about the effect of non-competes on employees, little attention has been paid to the fact that employers use non-competes as tools for protecting intellectual property and in doing so treat human capital as form of intellectual property. Taking the IP justification seriously—that is, examining the efficiency and utilitarian arguments surrounding non-compete agreements—reveals the troubling personal autonomy and dignitary consequences of non-compete enforcement. From an efficiency perspective, the evidence is conflicting: it is far from clear that non-compete enforcement is necessary for increased innovation and economic growth. From a personal autonomy perspective, on the other hand, it is quite clear that non-competes have a variety of negative consequences. Evaluating non-competes under an IP framework and with the principles that are applied to other forms of intellectual property makes clear that treating human capital as a form of intellectual property, and using those agreements to control that IP, is deeply problematic

Appendix: Cannabis, Consumers, and the Trademark Laundering Trap

Appendix to article in William & Mary Law Review vol. 63, no. 6 (2022), Cannabis, Consumers, and the Trademark Laundering Trap by Viva R. Moffat, Sam Kamin, and Tim Maffett

Cannabis, Consumers, and the Trademark Laundering Trap

At the moment, cannabis companies cannot acquire federal trademark protection for their marijuana products because the \u27\u27lawful use doctrine limits trademark registration to goods lawfully sold in commerce. Given that marijuana remains illegal under federal law, this may not sound like much of a problem, but it has serious consequences for consumers. Without trademark rights, one cannabis company can simply use the brand name of another, more prominent, company on its marijuana products, and consumers will assume that they are getting the products they have come to rely on, with potentially dangerous results. The current approach of the United States Patent & Trademark Office (PTO) and the federal courts does little to protect against this outcome and is thus at odds with trademark law\u27s consumer protection and fair competition goals. This Article examines how the PTO and the courts have mishandled marijuana marks and identifies how they have interpreted and deployed the lawful use doctrine in ways that undermine and conflict with trademark\u27s stated goals. Given that the PTO is unlikely to abandon the lawful use doctrine anytime soon, we propose changes to the way the PTO applies that doctrine in the trademark registration process, as well as changes to the courts\u27 consideration of trademark disputes involving cannabis companies. These changes will ensure that both consumers and marijuana businesses are protected as the United States transitions from marijuana prohibition to a post-prohibition federal regulatory regime

The Wrong Tool for the Job: The IP Problem with Noncompetition Agreements

This Article argues that employee noncompetition agreements ought to be unenforceable. It begins by recognizing that there is momentum for change in the law of noncompetes: a number of states and the American Law Institute (ALI) are in the process of reconsidering noncompete doctrine, and recent empirical studies provide evidence as to the mostly negative effects of the agreements. Existing critiques have focused on the problematic nature of noncompetes within the employment relationship. This Article synthesizes those critiques, adding support from empirical studies, and then examines noncompetes from a new perspective. Commentators have neither recognized nor evaluated the role noncompetes play in the intellectual property (IP) system. Upon closer examination, it becomes clear that the primary justification put forth in support of noncompetes is an IP justification: the arguments in favor of enforcement of the agreements revolve around the need to protect intangibles and the need to provide incentives for invention and investment. The IP justification is pervasive and rhetorically powerful but ultimately flawed. First, trade secret and other IP protections are intentionally limited to provide a certain amount of, but not too much, protection. Allowing enforcement of noncompetes in order to protect IP thus interferes with the contours of IP protection. Second, even to the extent that IP law is insufficient—that is, unintentionally limited—noncompetes are not the right tool for the IP job. A prohibition on the enforcement of noncompetes would thus serve a channeling function, directing efforts to protect intangibles to the IP regimes and encouraging the development of the appropriate IP balance, which is, of course, a work in progress