58 research outputs found

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

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    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

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    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

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    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

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    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

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    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

    Conditions and Covenants in License Contracts: Tales from a Test of the Artistic License

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    Pity the poor Artistic License version 1.0 (ALv1). The Free Software Foundation criticizes the license as “too vague” with some passages “too clever for their own good.” The Open Source Initiative suggests that it has been “superseded.” ALv1’s authors at the Perl Foundation even acknowledge its flaws. Yet it is the ALv1, not the venerable GNU General Public License (GPL), which the Federal Circuit upheld in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)], establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case’s greater significance lies elsewhere. Jacobsen v. Katzer teaches valuable lessons about conditions and covenants in license contracts, lessons that apply to software licenses of all persuasions, open source and binary use alike. Moreover, the case raises an important issue about the interplay between contract and intellectual property law: can licensors manipulate the distinction between covenants and conditions in such a way that upsets the delicate balance in copyright law? This article begins with a short description of open source licensing, followed by a discussion of the Jacobsen v. Katzer case and the lessons that it teaches about license contracts. Then, this article presents the questions left unresolved by Jacobsen v. Katzer: (1) Can licensors manipulate the distinction between covenants and conditions, thereby positioning themselves to obtain copyright remedies, particularly injunctive relief, on top of contract remedies; (2) If so, does this unwisely enhance a licensor’s power under copyright law, tipping the balance too far in the direction of copyright holders? The article explores two approaches to resolving this open issue. One approach leaves the distinction between pure covenants and license conditions in the hands of the contracting parties. The other approach attempts to create a principled distinction between pure covenants and license conditions. This article concludes that leaving the distinction to the contracting parties, though not perfect, better supports business model innovation, particularly open source licensing, which contributes significantly to innovation and healthy competition in the software industry. Courts can temper the power of licensors when necessary by utilizing the boundaries already inherent in intellectual property licensing law. These boundaries, coupled with prudence in granting injunctive relief for breach of license conditions, should maintain the appropriate balance within copyright law while preserving the positive role of license contracts

    Conditions and Covenants in License Contracts: Tales from a Test of the Artistic License

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    The Federal Circuit upheld the Artistic License in Jacobsen v. Katzer, establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case\u27s greater significance lies elsewhere. Jacobsen v. Katzer teaches valuable lessons about conditions and covenants in license contracts, lessons that apply to licenses of all persuasions. Moreover, the case raises an important issue about the interplay between contract and intellectual property law: can licensors manipulate the distinction between covenants and conditions in such a way that upsets the delicate balance in copyright law? The article explores the lessons taught by Jacobson v. Katzer and the unresolved issue that it leaves, concluding with a proposal that supports the business model innovation characterized by open source licensing

    Getting Serious About User-Friendly Mass Market Licensing for Software

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    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

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    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

    Open Source License Proliferation: Helpful Diversity or Hopeless Confusion?

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    This Article analyzes the license proliferation issue. In general, it examines whether the growing number of FOSS licenses represents hopeless confusion or, instead, helpful diversity. In particular, it discusses why proliferation occurs and the pros and cons of multiple licenses
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