Market failure and intellectual property: a response to Professor Lunney

Professor Lunney\u27s piece in this volume is interesting enough that I forgive him for misportraying my own work. In this short reply I will clarify my position, and then examine both the place of my market failure argument and the place of some of Professor Lunney\u27s arguments within the future of Intellectual Property scholarship as a whole

The lost logic of deterrence: when 'sending a message' to the masses outstrips fairness

The first morning that then Boston University student Joel Tenenbaum woke to the realization that he had a $675,000 court judgment against him, it must have felt like some kind of weird hangover. Here he was, a young man proven to have copied 30 songs, now owing copyright owners the price of a college education several times over. He must have thought, “this can’t be happening to me.” Late last month, after years of appeals, the First Circuit Court of Appeals affirmed Mr. Tenenbaum’s obligation to pay the money. One of the reasons the court gave for affirming this amazingly large amount was “the deterrent effect of statutory damages.” Some theories of deterrence argue that if the legal system hurts one lawbreaker badly enough, that can and should compensate for low rates of enforcement

Trespass-copyright parallels and the harm-benefit distinction

Responding to Shyamkrishna Balganesh, Foreseeability and Copyright Incentives, 122 Harv. L. Rev. 1569 (2009)Currently, the elements of a plaintiff’s cause of action for copyright largely follow the tort of trespass to land in that volitional entry (for land) or volitional copying (for copyright) gives rise to liability regardless of proof of harm and without any need for the plaintiff to prove the defendant acted unreasonably. Many scholars have criticized copyright law for following the strict liability model of real property trespass, and have suggested alternatives that would more resemble conditional causes of action such as unfair competition, nuisance, or negligence. In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that copyright plaintiffs should be required to prove foreseeability in order to make out a copyright claim. In this response, Professor Wendy Gordon suggests some new reasons why the tort of copyright infringement should be reformulated to abandon the trespass-to-land model, and explores some of the merits and shortcomings of Balganesh’s own version of the revised tort

Moral philosophy, information technology, and copyright: the Grokster case

Published in Information Technology and Moral Philosophy (2008)

Authors, publishers, and public goods: Trading gold for dross

Duruy Victor. 83. 10 juillet 1868, Règlement d'organisation pédagogique pour les écoles publiques de la Seine (extraits). In: L'enseignement de l'histoire à l'école primaire de la Révolution à nos jours, textes officiels, Tome I : 1793-1914. Paris : Institut national de recherche pédagogique, 2007. pp. 214-215. (Bibliothèque de l'Histoire de l'Education, 22