Engelberg Center on Innovation Law & Policy Corpus

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• "Does Judicial Ideology Affect Copyright Fair Use Outcomes?: Evidence from the Fair Use Case Law,"
  Barton Beebe
  "Does Judicial Ideology Affect Copyright Fair Use Outcomes?: Evidence from the Fair Use Case Law," 31 Columbia Journal of Law & the Arts 517 (2008) (symposium contribution)
• A Constitutional Weapon for Biden to Vanquish Trump’s Army of Judges
  Christopher Jon Sprigman
  "A Constitutional Weapon for Biden to Vanquish Trump’s Army of Judges," The New Republic, Aug. 20, 2020
• A Defense of the New Federal Trademark Antidilution Law
  Barton Beebe
  "A Defense of the New Federal Trademark Antidilution Law," 16 Fordham Intell. Prop. Media & Ent. L.J. 1143 (2006)
• A Framework for Deprecating Datasets: Standardizing Documentation, Identification, and Communication
  Alexandra Sasha Luccioni, Frances Corry, Hamsini Sridharan, Mike Ananny, Jason M. Schultz, Kate Crawford
  "A Framework for Deprecating Datasets: Standardizing Documentation, Identification, and Communication," Proc. ACM Conf. Fairness, Accountability & Transparancy 199 (2022) (with Alexandra Sasha Luccioni, Frances Corry, Hamsini Sridharan, Mike Ananny et al.)
• A Legal Tangle of Secrets and Disclosures in Trade
  Jeanne C. Fromer
  A Legal Tangle of Secrets and Disclosures in Trade, in Intellectual Property at the Edge: The Contested Contours of IP 271 (Rochelle C. Dreyfuss and Jane C. Ginsburg, eds., Cambridge University Press, 2014)
• A Psychology of Intellectual Property
  Jeanne C. Fromer
  "A Psychology of Intellectual Property," 104 Northwestern University Law Review 1441 (2010)
  Abstract: The article discusses the discrepancy between patent and copyright laws in terms of protectability standards. It examines the differences between protectability in patent and copyright law and the explanations for these distinctions. It proposes that the distinctions in the protectability standards governing patent and copyright law agree with psychological findings on creativity, although it is unlikely that these findings motivated the enactment of the different standards. It presents the psychological literature on creativity.
• AI Systems as State Actors
  Kate Crawford, Jason M. Schultz
  "AI Systems as State Actors," 119 Colum. L. Rev. 1941 (2019) (with Kate Crawford)
• Abolishing Exclusive Jurisdiction in the Federal Circuit: A Response to Judge Wood
  Rochelle C. Dreyfuss
  "Abolishing Exclusive Jurisdiction in the Federal Circuit: A Response to Judge Wood," 13 Chi.-Kent. J. Intell. Prop. 327 (2014)
  Abstract: Part of a symposium of responses to Chief Judge Wood’s suggestion for giving regional circuits a share of the Federal Circuit’s authority over patent law, this article argues that now that a degree of nationwide uniformity in patent law has been achieved, it would be a pity to disrupt it. While Chief Judge Wood is right that the law would improve with percolation, a change in the composition of the court, new procedures for challenging patents in the Patent and Trademark Office, a District Court pilot program, and satellite patent offices will bring to the debate new voices, different kinds of expertise, and diverse experience. It is worth waiting to see how these changes play out.
• Accommodating User Innovation in the International Intellectual Property Regime: A Global Administrative Law Approach
  Katherine J. Strandburg
  "Accommodating User Innovation in the International Intellectual Property Regime: A Global Administrative Law Approach," 2009 Acta Juridica 283
  Abstract: In this symposium article, I argue that, over and above previously appreciated problems with regard to access and the traditional IP balance, the trouble with TRIPS - and with the global intellectual property law regime more generally - is that it is ill-designed to cope with changes in the innovative process itself and with the likely heterogeneity of desirable innovation approaches in different global contexts. While it is possible that current TRIPS flexibilities can be interpreted in ways that will better balance the needs of initial innovators against those of users and follow-on innovators, the very structure of the agreement is based on an assumption of mass market, seller-based innovation which may make it difficult to accommodate newer innovation paradigms. The complexity of the innovation environment, in combination with the need for both flexibility and consistency, calls for an administrative-type approach which builds in an expectation of the need for ongoing updating of global innovation policy rather than an attempt to lock in substantive standards tailored to today’s innovation environment. To that end, I propose a re-envisioning of the World Intellectual Property Organization (WIPO) as a more broadly conceived innovation policy organization, which would serve as a center of discourse not only about how intellectual property law should be adapted to changing modes of innovation but also about how to confront new dilemmas raised by evolving innovative practices, which may involve issues beyond intellectual property law. WIPO is the most promising home for a broader focus on innovation policy in light of its expertise, its experience with the Development Agenda, and its relationship with the WTO under TRIPS. A broader mandate for WIPO could be implemented in several ways, with varying levels of administrative discretion vested in the re-imagined organization. As a first cut, WIPO might undertake to develop an Innovation Policy Agenda incorporating the concerns of innovative communities of various types, including commercial firms, user innovator communities, scientific researchers, open source proponents, and of other stakeholders, including developing and developed countries and NGOs representing users. An even more ambitious approach to WIPO involvement would be to amend TRIPS to provide a more open-ended exception provision to accommodate evolving innovation practices and to set out a more explicit role for WIPO in vetting potential exceptions. The gist of the proposal is to shift the focus of WIPO's portfolio. Rather than considering innovation policy only secondarily, as it impacts the intellectual property regime, a re-envisioned WIPO would put innovation policy front and center, regarding intellectual property as only one mechanism for innovation.
• Against Secondary Meaning
  Jeanne C. Fromer
  "Against Secondary Meaning," 98 Notre Dame Law Review 211 (2022)
• Agent-Based Modeling as a Legal Theory Tool
  Sebastian Benthall, Katherine J. Strandburg
  "Agent-Based Modeling as a Legal Theory Tool," 9 Frontiers Physics art. no. 666386 (2021) (with Sebastian Benthall)
• Amazon's Quiet Overhaul of the Trademark System
  Jeanne C. Fromer, Mark P. McKenna
  "Amazon's Quiet Overhaul of the Trademark System," 113 California Law Review 1169 (2025) (with Mark P. McKenna)
• An Aggregate Approach to Antitrust: Using New Data and Rulemaking to Preserve Drug Competition
  C. Scott Hemphill
  "An Aggregate Approach to Antitrust: Using New Data and Rulemaking to Preserve Drug Competition," 109 Columbia Law Review 629 (2009)
  Abstract: This Article examines the "aggregation deficit" in antitrust: the pervasive lack of information, essential to choosing an optimal antitrust rule, about the frequency and costliness of anticompetitive activity. By synthesizing available information, the present analysis helps close the information gap for an important, unresolved issue in U.S. antitrust policy: patent settlements between brand-name drug makers and their generic rivals. The analysis draws upon a new dataset of 143 such settlements. Due to the factual complexity of individual brand-generic settlements, important trends and arrangements become apparent only when multiple cases are examined collectively. This aggregate approach provides valuable information that can be used to set enforcement priorities, select a substantive liability standard, and identify the proper decisionmaker. The analysis uncovers an evolution in the means—including a variety of complex side deals—by which a brand-name firm can pay a generic firm to delay entry. The Article proposes two solutions for such anticompetitive behavior, one doctrinal and one institutional: a presumption of (illegal) payment where a side deal is reached contemporaneously with delayed entry, and an expanded role for agencies, to gather and synthesize nonpublic information regarding settlements, and potentially to engage in substantive rulemaking. The aggregate approach also reveals the shortcomings of antitrust enforcement where, as here, firms can exploit regulatory complexity to disguise collusive activity.
• An Alert to the Intellectual Property Bar: The Hague Judgments Convention
  Rochelle C. Dreyfuss
  "An Alert to the Intellectual Property Bar: The Hague Judgments Convention," 2001 U. Ill. L. Rev. 421
  Abstract: This paper takes a hard look at the relationship between international intellectual property litigation and the proposed Hague Convention on Jurisdiction and the Recognition of Foreign Judgments. The Convention is mainly aimed at creating a way for a civil judgment rendered in one member state to be assured enforcement in all other member states. Toward that end, it defines a series of agreed bases of personal jurisdiction; when a judgment is predicated on one of these bases, other member states are obliged to enforce it. The Convention also determines where particular claims can be litigated-certain claims are within the exclusive jurisdiction of particular states, others can be litigated where ever the Convention permits the assertion of adjudicatory authority over the defendant. After briefly describing the terms of the Convention, its application to intellectual property is analyzed. One question is whether the territorial nature of intellectual property rights means that no nation should be permitted to adjudicate intellectual property claims arising under the laws of another jurisdiction. If some extraterritorial adjudication is permissible, the next question is, in what kind of cases. The Convention distinguishes between registered rights cases, where issues of validity-and perhaps even infringement-can only be resolved at the place of registration, and all other intellectual property cases. This article takes the position that the line should be drawn between patent cases on the one hand and copyright and trademark cases on the other. Patent cases require a level of technical expertise that is not as necessary for resolving copyright and trademark cases. Moreover, copyright and trademark cases often involve products that are digitally transmitted and thus can be infringed in many states simultaneously. Consolidated adjudication of such multinational copyright and trademark disputes can save judicial and litigant resources, avoid inconsistent outcomes, and provide fora for developing law for the new borderless market that the creative industries now encounter. The paper ends with a series of proposals to facilitate consolidation and adjudication of intellectual property disputes. In that respect, it acts as background material for a draft judgments convention focusing exclusively on intellectual property litigation, which will be offered by the author and Professor Jane Ginsburg should the Hague efforts be frustrated or culminate in the exclusion of intellectual property from coverage.
• An Empirical Study of U.S. Copyright Fair Use Opinions Updated, 1978-2019
  Barton Beebe
  "An Empirical Study of U.S. Copyright Fair Use Opinions Updated, 1978-2019," 10 NYU Journal of Intellectual Property and Entertainment 1 (2020)
• An Empirical Study of the Multifactor Tests for Trademark Infringement
  Barton Beebe
  "An Empirical Study of the Multifactor Tests for Trademark Infringement," 94 California Law Review 1581 (2006)
  Abstract: The thirteen circuits' thirteen different multifactor tests for the likelihood of consumer confusion have long played a role of central importance in American trademark litigation, yet they have received little academic attention and no empirical analysis. Courts, commentators, and practitioners have all the while speculated about which factors, if any, drive the outcome of the tests, how the factors interact, and, most importantly, whether the circuits' different tests, given the same facts, would yield different outcomes. With a view to the settling of these questions and ultimately to the reform of the multifactor tests, this Article sets forth the results of an empirical study of all reported federal district court opinions for the five-year period from 2000 to 2004 in which a multifactor test for the likelihood of consumer confusion was used. In the process, it presents the multifactor test for the likelihood of consumer confusion as an ideal case study in legal multifactor decision making and develops a methodology and theoretical toolkit for the study of this form of legal analysis across the many areas of law that employ multifactor tests. Working from an original data set of 331 opinions, this Article finds significant variation among the circuits in the application and outcome of their respective tests. Drawing upon recent social science learning on cognition and decision making, it further shows that judges employ ‘fast and frugal’ heuristics to short-circuit the multifactor analysis. A few factors prove to be decisive; the rest are at best redundant and at worst irrelevant. Judges tend to ‘stampede’ these remaining factors to conform to the test outcome, particularly when they find infringement. This Article also makes a variety of factor-specific findings that contravene conventional wisdom in trademark law. For example, courts typically declare that no single factor outcome is dispositive. The data clearly contradict this assertion. A finding that the similarity of the marks factor does not favor a likelihood of confusion is, in practice, dispositive, and a finding that the proximity of the goods factor does not favor a likelihood of confusion is nearly dispositive. Relatedly, at least one circuit, the Second, has declared the defendant's intent factor to be ‘irrelevant.’ Meanwhile, the data show that a finding of bad faith intent is in fact dispositive, as much in the district courts of the Second Circuit as in those of any other. Furthermore, many believe survey evidence to be the best and most persuasive form of evidence of the likelihood of confusion. The data reveal, however, that surveys are rarely presented by parties or credited by courts. Additionally, this Article finds that the venerable doctrine of trademark strength-and in particular of inherent distinctiveness-has broken down. The data show a remarkable divergence between traditional circuit court (and casebook) doctrine on this and current district court practice.
• An Exercise in Line-Drawing: Deriving and Measuring Fairness in Redistricting
  Jeanne C. Fromer
  "An Exercise in Line-Drawing: Deriving and Measuring Fairness in Redistricting," 93 Georgetown Law Journal 1547 (2005)
• An Information Theory of Copyright Law
  Jeanne C. Fromer
  "An Information Theory of Copyright Law," 64 Emory Law Journal 71 (2014)
  Abstract: The dominant American theory of copyright law is utilitarian, in offering the incentive of limited copyright protection to creators to generate material that is valuable to society. Less settled is the question of the sorts of works that copyright law seeks to encourage: Ever more copyrightable creations? Only some that are artistically worthy? What makes a work valuable to society? This Article seeks to answer important aspects of these questions by examining them through the lens of information theory, a branch of applied mathematics that quantifies information and suggests optimal ways to transmit it. Using these concepts, this Article proposes that what makes expressive works valuable to society is that they make a contribution in at least one of two principal ways: by using that expression to communicate knowledge—be it systematic, factual, or cultural—and by conveying expression that is enjoyable in and of itself. Information theory sheds light on how copyright law can spur these valuable works. In undertaking this analysis, this Article explores the implications for the central doctrines of copyright law, including copyrightability, the idea-expression distinction, infringement, and fair use. In this context, this Article also considers whether we want distinct creators communicating these valuable types of information or whether it is optimal to unify particular communications of information in a single creator.
• An Introduction to the First Gruss Lecture
  Rochelle C. Dreyfuss
  "An Introduction to the First Gruss Lecture," 17 N.Y.U. J. Int’l L. & Pol. 219 (1984)
• Antitrust: Principles, Cases, and Materials
  Daniel Francis, Christopher Jon Sprigman
  Antitrust: Principles, Cases, and Materials (4th ed. 2026; 3d ed. 2025; 2d ed. 2024; 1st ed. 2024) (with Daniel Francis)
• Apple vs. Samsung: Is copying theft or innovation?
  Kal Raustiala, Christopher Jon Sprigman
  "Apple vs. Samsung: Is copying theft or innovation?," Los Angeles Times, Sept. 4, 2012 (with Kal Raustiala)
• Approvals and Timing of New Formulations of Novel Drugs Approved by the US Food and Drug Administration Between 1995 and 2010 and Followed Through 2021
  Ravi Gupta, Christopher J. Morten, Joseph S. Ross
  "Approvals and Timing of New Formulations of Novel Drugs Approved by the US Food and Drug Administration Between 1995 and 2010 and Followed Through 2021," 3 Journal of the American Medical Association Health Forum, no. 5, e221096, May 20, 2022 (with Ravi Gupta, Angela Y. Zhu, Reshma Ramachandran, Nilay D. Shah and Joseph S. Ross)
• Are AI Bots Knocking Cultural Heritage Offline?
  Michael Weinberg
  "Are AI Bots Knocking Cultural Heritage Offline?," (June 2025)
• Are Business Method Patents Bad for Business?
  Rochelle C. Dreyfuss
  "Are Business Method Patents Bad for Business?," 16 Santa Clara Computer High Tech. L. J. 263 (2000)
  Abstract: This article examines business method patenting. After describing State Street Bank & Trust Co. v. Signature Financial Group, Inc., the Federal Circuit's 1998 decision recognizing business method patents, I discuss the problems arising from extending patent law to the business environment. First, I show why many invalid patents are likely to issue. Second, I review the rationales for intellectual property protection and demonstrate why none are relevant to business methods. Third, I argue that business model patenting can distort competition by insulating inefficient business operations. Because of network effects and lock in, these inefficiencies?and the resulting distortion?can persist even if the patent is later invalidated. The last part of the article suggests that patents should be permitted on the software that implements business methods, but not cover business models themselves. Such an approach would better accord with core intellectual property doctrine, which permits protection for instantiations of principles (expression in the case of copyright; applications in the case of patents), but not protection for the principles themselves. This approach would also withhold protection from business methods that do not require the special incentives of patent protection and it would focus both the PTO and the courts on the inventiveness of the software rather than the clever idea of transferring real-world business models (such as the Dutch auction protected by the Priceline patent) into cyberspace. Most important, if patent protection were to run only to software and not to the model the software implements, then others would be able to utilize the model with different software (or without software). Thus, distortive impacts on the competitive marketplace would largely be eliminated.
• Are Negative Spaces Likely to be Fragile
  Christopher Jon Sprigman
  Are Negative Spaces Likely to be Fragile, in Improving Intellectual Property: A Global Project 18 (Susy Frankel, Margaret Chon, Graeme B. Dinwoodie, Barbara Lauriat et al. eds., Edward Elgar Publishing, 2023)
• Are We Running Out of Trademarks? An Empirical Study of Trademark Depletion and Congestion
  Barton Beebe, Jeanne C. Fromer
  "Are We Running Out of Trademarks? An Empirical Study of Trademark Depletion and Congestion," 131 Harvard Law Review 945 (2018) (with Barton Beebe)
• Assessing Strategies to Delay Generic Drug Entry
  C. Scott Hemphill, Robin Feldman, Jay Lefkowitz, Sean Nicholson, William G. Young
  "Assessing Strategies to Delay Generic Drug Entry," 11 New York University Journal of Intellectual Property and Entertainment Law 60 (2021) (with Robin Feldman et al.)
• At the Boundary of Law and Software: Toward Regulatory Design with Agent-Based Modeling
  Sebastian Benthall, Michael Carl Tschantz, Erez Hatna, Joshua M. Epstein, Katherine J. Strandburg
  "At the Boundary of Law and Software: Toward Regulatory Design with Agent-Based Modeling," 3182 CEUR Workshop Proc. (2021) (with Sebastian Benthall, Michael Carl Tschantz, Erez Hatna and Joshua M. Epstein)
• Automating Abercrombie: Machine-Learning Trademark Distinctiveness
  Shivam Adarsh, Elliott Ash, Barton Beebe, Jeanne C. Fromer, Stefan Bechtold
  "Automating Abercrombie: Machine-Learning Trademark Distinctiveness," 21 Journal of Empirical Legal Studies 826 (2024) (with Shivam Adarsh, Elliott Ash, Stefan Bechtold and Barton Beebe)
• Beauty and the Beasties
  Kal Raustiala, Christopher Jon Sprigman
  "Beauty and the Beasties," Slate, Dec. 12, 2013 (with Kal Raustiala)
• Berne's Vanishing Ban on Formalities
  Christopher Jon Sprigman
  "Berne's Vanishing Ban on Formalities," 28 Berkeley Tech. L.J. 1565 (2013)
  Abstract: Not too long ago, conventional wisdom in the copyright field condemned copyright formalities as unnecessary and pernicious, and celebrated their removal from American law. Recently, however, an increasingly prominent strand of copyright scholarship has begun to rue the death of mandatory formalities and to note the many possible benefits of reinstituting them. But now that the prospect of "reformalization" has been raised, the opponents of formalities have laid on the table what seems (at least to them) to be a trump card. Whatever the virtues of formalities, opponents claim that they are banned by article 5(2) of the Berne Convention, which prohibits formalities that affect "the enjoyment and the exercise" of rights in protected works. Furthermore, opponents invoke derivative protection through the TRIPS Agreement, which adopts the Berne standards and makes them enforceable via the World Trade Organization ("WTO") dispute resolution process. The view that Berne bans formalities is deeply and honestly held. It is nonetheless almost wholly irrelevant to the current debate about reformalization. The reason for that is straightforward. Recapturing many of the benefits of formalities does not require, and perhaps is not even best pursued by, reinstituting the sort of formalities that article 5(2) bans — that is, those that affect "the enjoyment and the exercise" of exclusive rights in copyrighted works. Rather, the sorts of formalities that occupy the center of the current debate, the so-called "new-style" formalities, are subtler. Unlike traditional formalities, noncompliance with new-style formalities does not prevent copyright from arising, cause existing copyrights to terminate, or make existing copyrights unenforceable in court. Rather, the various varieties of new-style formalities that have been proposed to date would work mostly by contracting the scope of infringement remedies.Traditional formalities work as bludgeons. New-style formalities work as nudges. This Article will focus on one of the many new-style formalities that has been proposed — one that would condition the availability of preliminary and permanent injunctions, as well as "disgorgement" money remedies (i.e., remedies requiring that the defendant not only pay the value of a reasonable license, but also turn over to the plaintiff any profits linked to the infringement), on compliance with a convenient, low-cost registration formality. Under a new-style formality of this type, owners of unregistered works would continue to recover actual damages as measured by the reasonable value of a license, but they would be ineligible to receive either disgorgement or preliminary or permanent injunctive relief. For reasons that the Article explains, neither Berne nor TRIPS prohibits such a formality — because neither Berne nor TRIPS significantly restricts signatories' freedom to condition the availability of remedies for copyright infringement. And indeed, Berne and TRIPS signatories are free to impose a variety of "new-style" formalities that work by constricting infringement remedies.
• BeyondBrooke Group: Bringing Reality to the Law of Predatory Pricing
  C. Scott Hemphill, Philip J. Weiser
  "Beyond Brooke Group: Bringing Reality to the Law of Predatory Pricing," 127 Yale Law Journal 2048 (2018) (with Philip J. Weiser)
  Abstract: This Feature offers a roadmap for bringing and deciding predatory pricing cases under the Supreme Court’s restrictive Brooke Group decision. Brooke Group requires a plaintiff to show that the defendant set a price below cost and had a sufficient likelihood of recouping its investment in predation. This framework, which was adopted without any contested presentation of its merits, has endured despite its flaws. Beyond this framework, the Court opined in dicta that predation is implausible. We identify points of flexibility within the Court’s framework that permit an empirically grounded evaluation of the predation claim. Under the price-cost test, a plaintiff has leeway to select an appropriate measure of cost, including incremental cost. In considering recoupment, Brooke Group’s skeptical dicta should be confined to the particular market structure and theory of recoupment analyzed in that case. The dicta do not apply, for example, to a monopolist who recoups by earning a reputation for predation. A further reason to confine Brooke Group’s dicta is the Court’s highly unusual reweighing of the evidence presented at trial. As we explain using new historical research, this was not the Court’s initial plan after oral argument, but Justice Kennedy switched his vote. We also make the case against extending the price-cost test to more complex pricing strategies, such as loyalty discounts, in which the motivation for a stringent rule—to avoid costly false positives—has little purchase.
• Bleistein, the Problem of Aesthetic Progress, and the Making of American Copyright Law
  Barton Beebe
  "Bleistein, the Problem of Aesthetic Progress, and the Making of American Copyright Law," 117 Columbia Law Review 319 (2017)
• Brexit and IP: The Great Unraveling?
  Graeme B. Dinwoodie, Rochelle C. Dreyfuss
  "Brexit and IP: The Great Unraveling?," 39 Cardozo L. Rev. 967 (2018) (with Graeme B. Dinwoodie)
• Brief of Professors Barton Beebe and Jeanne C. Fromer as Amici Curiae, Iancu v. Brunetti
  Barton Beebe, Jeanne C. Fromer
  Brief of Professors Barton Beebe and Jeanne C. Fromer as Amici Curiae (with Appendix), Iancu v. Brunetti, 588 U.S. 388 (2019) (No. 18-302)
• Brief of Professors Christopher Buccafusco and Jeanne C. Fromer as Amici Curiae, Star Athletica, L.L.C. v. Varsity Brands, Inc.
  Christopher Buccafusco, Jeanne C. Fromer
  Brief of Professors Christopher Buccafusco and Jeanne C. Fromer as Amici Curiae, Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405 (2017) (No. 15-866)
• CDA 230 for a Smart Internet
  Madeline Byrd, Katherine J. Strandburg
  "CDA 230 for a Smart Internet," 88 Fordham L. Rev. 405 (2019) (with Madeline Byrd)
• Can Disclaimers of Affiliation Dispel Trademark Confusion? Evidence From Two Randomized Experiments
  Barton Beebe, Roy Germano, Joel Steckel
  "Can Disclaimers of Affiliation Dispel Trademark Confusion? Evidence From Two Randomized Experiments," J. Empirical Legal Stud. (2026) (with Roy Germano and Joel Steckel)
• Can Restoration Hardware Legally Knock Off the Navy Chair?
  Kal Raustiala, Christopher Jon Sprigman
  "Can Restoration Hardware Legally Knock Off the Navy Chair?," Slate, Nov. 26, 2012 (with Kal Raustiala)
• Claiming Design
  Jeanne C. Fromer, Mark McKenna
  "Claiming Design," 167 University of Pennsylvania Law Review 123 (2018) (with Mark McKenna)
• Claiming Intellectual Property
  Jeanne C. Fromer
  "Claiming Intellectual Property," 76 University of Chicago Law Review 719 (2009)
• Clearing Up Some Confusion About Dilution: A Reply to Hal Poret
  Barton Beebe, Roy Germano, Christopher Jon Sprigman, Joel H. Steckel
  "Clearing Up Some Confusion About Dilution: A Reply to Hal Poret," 112 Trademark Reporter 684 (2022) (with Roy Germano, Christopher Jon Sprigman and Joel H. Steckel)
• Collaborative Research: Conflicts on Authorship, Ownership, and Accountability
  Rochelle C. Dreyfuss
  "Collaborative Research: Conflicts on Authorship, Ownership, and Accountability," 53 Vand. L. Rev. 1161 (2000)
  Abstract: This Article explores the field of collaborative research in the realm of intellectual property law. Traditionally, scientist, artists, and professors developed ideas alone, utilizing only their own knowledge and research to complete their works. Recently, however, due in part to an increasing need for specialization, the globalization of the marketplace, the rapid growth of the Internet, and an expansion in intellectual property law, collaborative production is replacing individual efforts. Collaborative efforts have posed an array of new and challenging legal problems. This Article proposes a series of legal rules that utilize both intellectual property law's concepts of authorship and inventorship and Coasian ideas of transactional freedom. These rules provide a benchmark for collaborative parties, thereby assisting them in identifying issues and structuring workable arrangements.
• Coming of Age with TRIPS: A Comment on J.H. Reichman, The TRIPS Agreement Comes of Age: Conflict or Cooperation with the Developing Countries?
  Rochelle C. Dreyfuss
  "Coming of Age with TRIPS: A Comment on J.H. Reichman, The TRIPS Agreement Comes of Age: Conflict or Cooperation with the Developing Countries?," 33 Case W. Rsrv. J. Int’l L. 179 (2001)
  Abstract: Comments on the article 'The Trips Agreement Comes of Age: Conflict or Cooperation With the Developing Countries?,' by J.H. Reichman. Adoption of international intellectual property standards; Protection of developing nations from the interpretation of nations' laws by foreign courts; Reallocation of rights in informational and cultural property.
• Congress’s Article III Power and the Process of Constitutional Change
  Christopher Jon Sprigman
  "Congress’s Article III Power and the Process of Constitutional Change," 95 N.Y.U. L. Rev. 1778 (2020)
  Abstract: Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that has how the power has historically been understood. Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which Supreme Court has never spoken definitively. In this Article, I argue that Congress’s Article III power can be understood as a means by which Congress may change the Constitution without amending it. I argue, further, that we should welcome it as such. Working through the ordinary legislative process, Congress may remove the jurisdiction of federal courts to hear cases involving most questions of federal law, including cases that raise questions under the federal Constitution. To be clear, I am not arguing that the Constitution unambiguously establishes this congressional power. As on so many important issues, the Constitution is indeterminate: Article III provides a textual foundation for the power, and neither history nor precedent rule it out. In this matter, however, what Congress does is more important than anything the Constitution says. The Constitution’s indeterminacy opens a space for Congress to reclaim authority, in particular cases, over constitutional interpretation. If a determined Congress acts to fill that space, courts will have little power to resist. Correction, if it comes at all, will come from voters. Understood this way, the implications of Congress’s Article III power are potentially transformative. Congress may prescribe, by ordinary legislation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation. In either case, Congress may remove the jurisdiction of federal courts to hear constitutional challenges to its interventions. And Congress may do the same with respect to state courts. To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. In the push-and-pull between judicially-enforced constitutional rules and the desires of current democratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review.
• Constitutional Law--Free Speech Clause--Sixth Circuit Classifies Computer Source Code as Protected Speech--Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)
  Jeanne C. Fromer
  "Constitutional Law--Free Speech Clause--Sixth Circuit Classifies Computer Source Code as Protected Speech--Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)," 114 Harvard Law Review 1813 (2001)
• Constructing Commons in the Cultural Environment
  Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg
  "Constructing Commons in the Cultural Environment," 95 Cornell L. Rev. 657 (2010) (with Michael J. Madison and Brett M. Frischmann)
  Abstract: This Essay considers the problem of understanding intellectual sharing/pooling arrangements and the construction of cultural commons arrangements. We argue that an adaptation of the approach pioneered by Elinor Ostrom and collaborators to commons arrangements in the natural environment may provide a template for the examination of constructed commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environment(s) within which they are embedded and with which they share interdependent relationships. Such an improved understanding is critical for obtaining a more complete perspective on intellectual property doctrine and its interactions with other legal and social mechanisms of governing creativity and innovation. We propose an initial framework for evaluating and comparing the contours of different pooling arrangements with an eye toward developing an understanding of the institutional and structural differences across arrangements and industries as well as the underlying contextual reasons for such differences. The proposed approach would draw upon case studies from a wide range of disciplines. Among other things, we argue that a theoretical approach to cultural constructed commons should consider rules pertaining to membership criteria, contribution and use of pooled resources, internal licensing conditions, management of external relationships, and institutional forms along with the degree of collaboration among members, sharing of human capital, degrees of integration among participants, and whether there is a specified purpose to the arrangement.
• Consumer Uncertainty in Trademark Law: An Experimental Investigation
  Barton Beebe, Roy Germano, Christopher Jon Sprigman, Joel H. Steckel
  "Consumer Uncertainty in Trademark Law: An Experimental Investigation," 72 Emory Law Journal 489 (2023) (with Roy Germano, Christopher Jon Sprigman and Joel H. Steckel)
• Convenors' Introduction: The Culture and Economics of Participation in an International Intellectual Property Regime
  Rochelle C. Dreyfuss, Diane L. Zimmerman
  "Convenors' Introduction: The Culture and Economics of Participation in an International Intellectual Property Regime," 29 N.Y.U. J. Int’l L. & Pol. 1 (1997) (with Diane L. Zimmerman)
• Copyright Law: Cases and Materials
  Jeanne C. Fromer, Christopher Jon Sprigman
  Copyright Law: Cases and Materials (Version 8.0, 2026 and earlier eds.) (with Christopher Jon Sprigman)
• Copyright Protection: Has Look and Feel Crashed?
  Rochelle C. Dreyfuss, John M. Walker
  "Copyright Protection: Has Look and Feel Crashed?," 11 Cardozo Arts & Ent. L.J. 721 (1993) (with John M. Walker et al.)
• Copyright and Creative Incentives: What We Know (and Don’t)
  Christopher Jon Sprigman
  "Copyright and Creative Incentives: What We Know (and Don’t)," 55 Hous. L. Rev. 451 (2017)
  Abstract: The dominant justification for copyright in the United States is consequentialist. Without copyright, it is claimed, copyists will compete away the profits from new artistic and literary creativity, thereby suppressing incentives to create new artistic and literary works in the first place. This is a sensible theory. But is it true? On that question, we have little evidence. This Article examines some of the empirical work examining the link between copyright and the incentive to create new works. The Article introduces readers to a sampling of the existing empirical work, which includes event studies (aka, natural experiments), qualitative studies of creativity undertaken in so-called “low-IP” settings, and laboratory experiments. At this early point in the empirical study of copyright, the link between copyright and creative incentives appears to be considerably less robust than theory may have led us to expect. This Article is adapted from a talk given at the University of Houston Law Center’s Institute for Intellectual Property and Information Law Spring Lecture (presented March 30, 2017).
• Copyright and the Rule of Reason
  Christopher Jon Sprigman
  "Copyright and the Rule of Reason," 7 J. Telecomm. & High Tech. L. 317 (2009)
• Copyright, Meet Antitrust: The Supreme Court’sWarholDecision and the Rise of Competition Analysis in Fair Use
  Christopher Jon Sprigman
  "Copyright, Meet Antitrust: The Supreme Court’s Warhol Decision and the Rise of Competition Analysis in Fair Use," 134 Yale L.J. F. 298 (2025)
  Abstract: In its recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court held that a defendant’s use of a plaintiff’s copyrighted work would be judged “transformative”—and therefore more likely to qualify as a fair use—not simply on the basis that the defendant had altered the plaintiff’s work, but in instances where the defendant had done so in a way that gave the defendant’s new work “a further purpose or different character.” Crucially, in assessing whether changes to the work gave it the requisite different purpose or character, the Warhol Court noted that works that have the same purpose are more likely to serve as substitutes—that is, to compete. On the other hand, works with different purposes are less likely to compete. For that reason, a defendant’s work that is based on a plaintiff’s but is sufficiently different in purpose that it does not compete with it is more likely to be found transformative, and is therefore more likely, all else equal, to be a fair use. The key question after Warhol, then, is determining whether a defendant’s work is likely to compete with a plaintiff’s work for a particular use. Unfortunately, the answer to that question often will be far from self-evident, and judges will find nothing in copyright law itself to guide them. Instead, judges are likely to fall back on unguided, unreliable intuition. Fortunately, antitrust law offers tools we can employ to better understand whether two artistic or literary works are likely to compete for a particular use. This Essay argues that antitrust market definition and substitutability methodologies lend themselves surprisingly well to the post-Warhol copyright fair-use analysis. Moreover, this Essay argues that if the federal courts turn to antitrust law for help in implementing the Warhol Court’s focus on the prospect of substitution, the fair-use inquiry may, on the whole and over time, become modestly more friendly to defendants than it was before Warhol. This is despite the fact that the Warhol Court ruled against fair use in that particular case.
• Copyrights and Wrongs
  Christopher Jon Sprigman
  "Copyrights and Wrongs," Chronicle of Higher Education, Jan. 20, 2012
• Counterfeits and Cluttering: Statement of Professors Barton Beebe and Jeanne C. Fromer (House Judiciary)
  Barton Beebe, Jeanne C. Fromer
  Counterfeits and Cluttering: Emerging Threats to the Integrity of the Trademark System and the Impact on American Consumers and Businesses: Hearing Before the Subcomm. on Courts, Intellectual Property, and the Internet of the H. Comm. on the Judiciary, 116th Cong. (July 18, 2019) (statement of Professors Barton Beebe and Jeanne C. Fromer)
• Creative Lawmaking: A Comment on Lionel Bently,Copyright, Translations, and the Relations Between Britain and India in the Nineteenth and Early Twentieth Centuries
  Rochelle C. Dreyfuss
  "Creative Lawmaking: A Comment on Lionel Bently, Copyright, Translations, and the Relations Between Britain and India in the Nineteenth and Early Twentieth Centuries," 82 Chi.-Kent L. Rev. 1243 (2007)
  Abstract: The article comments on "Copyright, Translations, and Relations Between Britain and India in the Nineteenth and Early Twentieth Centuries," a paper by Lionel Bently that appeared in this issue. It highlights the questions raised by Bently that are pertinent to the debate over harmonizing or accommodating disparities in national laws. In addition, the article discusses other strategic issues that should be considered.
• Cultural Appropriation and the Global Fashion Industry
  Kal Raustiala, Christopher Jon Sprigman
  Cultural Appropriation and the Global Fashion Industry, in Fashion and Intellectual Property 316 (David Tan, Jeanne Fromer and Dev Gangjee, eds., Cambridge University Press, 2025) (with Kal Raustiala)
• Data Portability and Platform Competition: Is User Data Exported From Facebook Actually Useful to Competitors?
  Gabriel Nicholas, Michael Weinberg
  "Data Portability and Platform Competition: Is User Data Exported From Facebook Actually Useful to Competitors?," (November 2019) (with Gabriel Nicholas)
• Design Protection
  Barton Beebe
  Design Protection, in The Oxford Handbook of Intellectual Property Law 572 (Rochelle C. Dreyfuss and Justine Pila, eds., Oxford University Press, 2018)
• Designing a Global Intellectual Property System Responsive to Change: The WTO, WIPO, and Beyond
  Rochelle C. Dreyfuss, Graeme B. Dinwoodie
  "Designing a Global Intellectual Property System Responsive to Change: The WTO, WIPO, and Beyond," 46 Hous. L. Rev. 1187 (2009) (with Graeme B. Dinwoodie)
  Abstract: In recent years, it has become clear that the TRIPS regime is in trouble. Although lawmaking in the World Trade Organization (WTO) has essentially stalled, there is a continuing need to recalibrate the rules applicable to knowledge production. In theory, the problems facing WTO members could be resolved through new lawmaking within that institution. For a variety of reasons, however, this has not materialized. The WTO’s adjudicatory system has compensated somewhat for the lack of activity in the Ministerial Conference and the General Council. But for a number of reasons, it is not a substitute for a well-functioning “legislative body.” Indeed, some of the activity in this field has shifted back from the WTO to the World Intellectual Property Organisation (WIPO). Although this regulatory competition might currently be leading to a suboptimal global regime, the move to WIPO is intriguing. It suggests an institutional design that could make the international intellectual property system more responsive to changing needs. Indeed, the TRIPS Agreement contemplates a formal tie between the WTO and WIPO. Unfortunately, however, the nature of the lawmaking relationship between these two organizations has yet to be fully elucidated. TRIPS incorporates provisions of two WIPO instruments (the Paris and Berne Conventions), and references others. Still, it is not evident whether (or how) the WTO should be taking account of WIPO’s view of these commitments. Nor is it clear how (or when) new developments within these conventions should affect WTO obligations. This essay takes up the institutional design question of how to create an intellectual property system responsive to changing circumstances by examining how the WTO can best make use of WIPO’s experience and expertise in intellectual property matters. After considering the intellectual property cases decided to date by the WTO dispute settlement body and determining the ways in which they have relied on the text and negotiating histories of, and other materials relevant to, WIPO conventions to elucidate TRIPS obligations, we suggest some revisions to interpretive approaches pursued thus far by dispute settlement panels. We point out methodologies that would leaven and cabin the trade perspective, and thus allow the WTO to capitalize on WIPO’s experience and on WIPO developments that cope with the dynamic nature of intellectual property and the changing landscape of knowledge production. Our analysis is also meant for broader application, for developing a design that permits productive input from all the international institutions that have interests touching on intellectual property norm development.
• DethroningLear: Licensee Estoppel and the Incentive to Innovate
  Rochelle C. Dreyfuss
  "Dethroning Lear: Licensee Estoppel and the Incentive to Innovate," 72 Va. L. Rev. 677 (1986)
  Abstract: The article discusses the U.S. Supreme Court's decision on the lawsuit filed by MedImmune Inc. against Genentech Inc. It reveals that the court's ruling reverses its decision made on a patent suit involving Lear which allowed a licensee in good standing to challenge the validity of a licensed patent. The author also examines the impact of shifting the risk of invalidation to patents, such as reducing their incentives to invest on innovations.
• DethroningLear? Incentives to Innovate AfterMedImmune
  Rochelle C. Dreyfuss, Lawrence S. Pope
  "Dethroning Lear? Incentives to Innovate After MedImmune," 24 Berkeley Tech. L.J. 971 (2009) (with Lawrence S. Pope)
  Abstract: The article discusses the U.S. Supreme Court's decision on the lawsuit filed by MedImmune Inc. against Genentech Inc. It reveals that the court's ruling reverses its decision made on a patent suit involving Lear which allowed a licensee in good standing to challenge the validity of a licensed patent. The author also examines the impact of shifting the risk of invalidation to patents, such as reducing their incentives to invest on innovations.
• Dirty Data, Bad Predictions: How Civil Rights Violations Impact Police Data, Predictive Policing Systems, and Justice
  Rashida Richardson, Jason M. Schultz, Kate Crawford
  "Dirty Data, Bad Predictions: How Civil Rights Violations Impact Police Data, Predictive Policing Systems, and Justice," 94 N.Y.U. L. Rev. Online 192 (2019) (with Rashida Richardson and Kate Crawford)
• Disruptive Incumbents: Platform Competition in an Age of Machine Learning
  C. Scott Hemphill
  "Disruptive Incumbents: Platform Competition in an Age of Machine Learning," 119 Columbia Law Review 1973 (2019)
  Abstract: Recent advances in machine learning have reinforced the competitive position of leading online platforms. This Essay identifies two important sources of platform rivalry and proposes ways to maximize their competitive potential under existing antitrust law. A nascent competitor is a threatening new entrant that, in time, might become a full-fledged platform rival. A platform’s acquisition of a nascent competitor should be prohibited as an unlawful acquisition or maintenance of monopoly. A disruptive incumbent is an established firm—often another platform—that introduces fresh competition in an adjacent market. Antitrust enforcers should take a more cautious approach, on the margin, when evaluating actions taken by a disruptive incumbent to compete with an entrenched platform.
• Distributed Manufacturing of Open Hardware
  Michael Weinberg
  "Distributed Manufacturing of Open Hardware," (November 2021)
• District Courts as Patent Laboratories
  Jeanne C. Fromer
  "District Courts as Patent Laboratories," 1 UC Irvine Law Review 307 (2011)
  Abstract: This symposium article engages with Dan Burk and Mark Lemley's recent book, "The Patent Crisis and How the Courts Can Solve It," in which they suggest that courts should and do tailor patent law to particular technologies or industries, with the aim of providing appropriate incentives to innovate under the specific circumstances. Their book understandably focuses on the Federal Circuit’s key role in this tailoring. I seek to enhance their contributions by arguing that federal district courts — which receive less attention in their book — are also particularly crucial for the development and application of technology- and industry-specific patent rules. I suggest possible improvements to the district courts’ practices and relationships that might be fostered between the district courts and the Federal Circuit. These courts — two of the most important components in the development of patent law — could interact in advantageously symbiotic ways to tailor patent law to the particular needs of a technology or industry. In doing so, I discuss how the limitations and advantages of district courts and the Federal Circuit might each, respectively, be minimized and enhanced by treating the district courts as the Federal Circuit’s patent laboratories.
• Diversifying Without Discriminating: Complying with the Mandates of the TRIPS Agreement
  Graeme B. Dinwoodie, Rochelle C. Dreyfuss
  "Diversifying Without Discriminating: Complying with the Mandates of the TRIPS Agreement," 13 Mich. Telecomm. & Tech. L. Rev. 445 (2007) (with Graeme B. Dinwoodie)
  Abstract: Although the technological community was once fairly united in its needs from the patent system, the recent debate over patent reform has made it clear that this is no longer the case. Rather, it has become increasingly difficult to believe that a one-size-fits-all approach to patent law can survive. In this brief contribution to a symposium tackling Diversity in Innovation Policy, we consider the ways in which intellectual property obligations, most notably the TRIPS Agreement, circumscribe the ability of national lawmakers to tailor patent protection to reflect the concerns of different industries. In particular, we propose that TRIPS art. 27, which is cast in terms of nondiscrimination, should be interpreted to permit "differential treatment." First, we argue that in other areas, treating different cases differently is not always invidious discrimination. Second, we note that many of the proposals for tailoring are not aimed at the nominal legal rights created by patent law, but rather at the economic effects of these patents, a distinction of significance in the WTO's Canada-Pharmaceutical Patents case. Finally, we suggest that member states claiming de facto discrimination should be required to demonstrate some element over and above those required to establish de iure discrimination, and that member states defending an exclusion should be permitted to rebut a showing of disparate treatment by demonstrating a legitimate purpose. While decision makers will need to evaluate the relation between the stated purpose and the means chosen, this analysis would permit members to adopt most of the tailoring initiatives discussed during the Symposium. We give weight to the normative claims of the TRIPS Agreement to facilitate and enhance free trade. But we think that industry-specific patent laws are fully consistent with the language and purpose of the TRIPS Agreement as well as the comparative advantage philosophy that undergirds the modern trade regime.
• Do You Want to Know a Trade Secret? How Article 2B Will Make Licensing Trade Secrets Easier (but Innovation More Difficult)
  Rochelle C. Dreyfuss
  "Do You Want to Know a Trade Secret? How Article 2B Will Make Licensing Trade Secrets Easier (but Innovation More Difficult)," 87 Cal. L. Rev. 191 (1999)
  Abstract: Examines how the specific provisions of the proposed Article 2B of the Uniform Commercial Code would affect trade secrets. Analysis of interaction between Article 2B, intellectual property law and innovation policy; Ways to improve Article 2B.
• Draft Convention on Jurisdiction and Recognition of Judgments in Intellectual Property Matters
  Rochelle C. Dreyfuss, Jane C. Ginsburg
  "Draft Convention on Jurisdiction and Recognition of Judgments in Intellectual Property Matters," 77 Chi.-Kent L. Rev. 1065 (2002) (with Jane C. Ginsburg)
  Abstract: This proposal is meant to spur the intellectual property bar to consider whether it would be desirable to create a regime for international enforcement of intellectual property law judgments. Such a convention could be adopted under the auspices of the World Intellectual Property Organization ("WIPO") or through the World Trade Organization ("WTO"). There are several reasons to believe that an instrument drafted specifically for intellectual property disputes would be particularly advantageous. First, for intellectual property disputes, efficiency should be a principal target. Modern distribution methods, particularly satellite and Internet transmissions, make it increasing likely that intellectual property rights will be exploited simultaneously in more than one territory. The ability to consolidate claims arising from these usages in one court, with the expectation that the judgment of that court will be recognized in all convention States, could reduce costs for all sides, conserve judicial resources on an international basis, and promote consistent outcomes. Second, a convention drafted for intellectual property disputes can take account of issues uniquely raised by the intangibility of the rights in issue. For example, an intellectual property agreement can consider the ability of a potential defendant to gain litigation advantages through the choice of the location of the activities that give rise to infringement. In certain situations, the propriety of expanding jurisdiction depends on the possibility of inconsistent outcomes; a convention tailored to intellectual property can specify what that term means in the context of public goods. An instrument for intellectual property litigation can also deal specifically with matters of unique concern to the creative community. The strong link between culture on the one hand, and intellectual production and utilization on the other, means that the territoriality of these rights is of crucial importance: individual nations must be able to retain some control over the local conditions under which these products are created, exploited, and accessed. At the same time, an approach that creates new avenues for cross-cultural enrichment needs to be considered. For example, the circumstances where trans-border injunctions are permissible can be specified to include consideration of cultural, health, and safety issues. Other issues of prime interest to the information industries can also be considered: provisions on contract disputes can be tailored to deal with mass-market contracts, which are becoming prevalent in certain intellectual property transactions; provisions on infringement can be made sensitive to the interests of the "new media", such as Internet Service Providers. Most important, the convention can be confined to rights covered by the intellectual property part of the General Agreement on Tariffs and Trade ("TRIPs Agreement") and open to signature only to countries that have joined the WTO and fully implemented the TRIPs Agreement. Since these are countries that have agreed to enforce intellectual property law and are subject to dispute resolution proceedings if they fail to do so, these limitations would reduce concerns that forum shopping will undermine the delicate balance that each nation has struck between the rights of intellectual property users and owners. And although dispute resolution under the WTO cannot provide litigants with a substitute for a centralized and authoritative appellate body (such as the US Supreme Court or the European Court of Justice), it can provide assurance of transparent and efficient judicial process, along with institutional mechanisms (such as dispute resolution panels, the Dispute Settlement Board, and the Council for TRIPs) for examining intellectual property law as it develops through consolidated adjudication of multinational disputes.
• Drug Patents at the Supreme Court
  C. Scott Hemphill, Bhaven Sampat
  "Drug Patents at the Supreme Court," 339 Science 1386 (2013) (with Bhaven Sampat)
  Abstract: U.S. pharmaceutical patent policy is poised for a major review by the U.S. Supreme Court. Later this month, the Court will hear a case, Federal Trade Commission (FTC) v. Actavis, Inc., about a tactic alleged to be illegal by U.S. regulators, so-called “reverse payment” settlements of patent litigation. A maker of a branded drug pays a “generic” drug maker offering a competing, unbranded version of a drug, to abandon its challenge of the branded firm's patent. This tactic has also received regulatory scrutiny in Europe (1, 2). The Court's ruling promises to reset the innovation/access balance for drugs, whatever the result. We explain the stakes of the case, and how settlements of “secondary” patents affect that balance.
• Dynamic Patent Disclosure
  Jeanne C. Fromer
  "Dynamic Patent Disclosure," 69 Vanderbilt Law Review 1715 (2016)
• Eat, Drink and Be Wary: Why the US Should Oppose Extending Stringent Intellectual Property Rights on Wine and Spirit Names to Other Products
  Kal Raustiala, Christopher Jon Sprigman
  "Eat, Drink and Be Wary: Why the US Should Oppose Extending Stringent Intellectual Property Rights on Wine and Spirit Names to Other Products," FindLaw, Dec. 12, 2002 (with Kal Raustiala)
• Economic Espionage as Reality or Rhetoric: Equating Trade Secrecy with National Security
  Rochelle C. Dreyfuss, Orly Lobel
  "Economic Espionage as Reality or Rhetoric: Equating Trade Secrecy with National Security," 20 Lewis & Clark L. Rev. 419 (2016) (with Orly Lobel)
  Abstract: In the last few years, the Economic Espionage Act (EEA), a 1996 statute that criminalizes trade secrecy misappropriation, was amended twice, once to increase the penalties and once to expand the definition of trade secrets and the types of behaviors that are illegal. Recent developments also reveal a pattern of expansion in investigation, indictments, and convictions under the EEA as well as the devotion of large resources by the FBI and other agencies to warn private industry against the global threats of trade secret theft. At the international level, the United States government has been advocating enhanced levels of trade secrecy protection in new regional trade agreements This article asks about the effects these developments on innovation. The article examines the rhetoric the government is using to promote its trade secrecy agenda, uncovering that the argument for greater protection appears to derive at least some of its power from xenophobia, and most importantly, from a conflation of private economic interests with national security concerns, interjecting a new dimension to the moral component of innovation policy debates. Analyzing recent empirical research about innovation policy, we ask about the effects of these recent trends on university research and on private market innovation, including entrepreneurship, information flows and job mobility. We argue that, paradoxically, the effort to protect valuable information and retain the United States’ leadership position could disrupt information flows, interfere with collaborative efforts, and ultimately undermine the inventive capacity of American innovators. The article offers suggestions for reconciling legitimate concerns about national security with the balance intellectual property law traditionally seeks to strike between incentivizing innovation and ensuring the vibrancy of the creative environment. We conclude that a legal regime aimed at protecting incumbency is not one that can also optimally foster innovation.
• Endogenous Choice of Stakes Under Common Ownership
  C. Scott Hemphill, Marcel Kahan
  "Endogenous Choice of Stakes Under Common Ownership," 1 University of Chicago Business Law Review 217 (2022) (with Marcel Kahan)
  Abstract: We present a simple model of common ownership in which an investor chooses its stake in competing firms in light of the effects on firm behavior and firm profits. Two firms compete in Cournot duopoly, and ownership affects a firm’s objective function in the manner posited by Bresnahan & Salop (1986) and Salop & O’Brien (2000). We show that an investor with equal stakes in both firms—?a so-called common concentrated owner (CCO)—?places a greater value on an additional share of a firm, compared to atomistic owners. The same is true of a noncommon concentrated owner (NCO) with a stake in just one firm. Both the CCO and the NCOs thus have incentives to acquire any shares held by atomistic owners. Our model yields two testable empirical predictions. First, equilibrium ownership structure in noncompetitive industries should be systematically more concentrated than in competitive industries. Second, within the investment portfolio of institutional investors, holdings in noncompetitive industries should be systematically more concentrated than holdings in competitive industries.
• Evaluating Competing Agent Strategies for a Voice Email Agent
  Marilyn A. Walker, Donald Hindle, Jeanne C. Fromer, Giuseppe Di Fabbrizio, Craig Mestel
  "Evaluating Competing Agent Strategies for a Voice Email Agent," in Proceedings of Eurospeech '97 (1997) (with Marilyn A. Walker, Donald Hindle, Giuseppe Di Fabbrizio & Craig Mestel)
• Experimental Tests of Intellectual Property Laws’ Creativity Thresholds
  Christopher Buccafusco, Zachary Burns, Jeanne C. Fromer, Christopher Jon Sprigman
  "Experimental Tests of Intellectual Property Laws’ Creativity Thresholds," 92 Texas Law Review 1921 (2014) (with Christopher Buccafusco, Zachary Burns and Christopher Jon Sprigman)
  Abstract: The article focuses on the creativity threshold requirements under intellectual property law in the U.S. in 2014. Topics include the exclusive rights of copyright holders, patentable subject matter, and the connection between incentives and behavior. Information is provided on utilitarianism in intellectual property.
• Experiments in Intellectual Property
  Christopher Buccafusco, Christopher Jon Sprigman
  Experiments in Intellectual Property, in 2 Research Handbook on the Economics of Intellectual Property Law: Analytical Methods 579 (Peter S. Menell, David L. Schwartz et al. eds., Edward Elgar Publishing, 2019) (with Christopher Buccafusco)
• Expressive Genericity: Trademarks as Language in the Pepsi Generation
  Rochelle C. Dreyfuss
  "Expressive Genericity: Trademarks as Language in the Pepsi Generation," 65 Notre Dame L. Rev. 397 (1990)
• Expressive Incentives in Intellectual Property
  Jeanne C. Fromer
  "Expressive Incentives in Intellectual Property," 98 Virginia Law Review 1745 (2012)
  Abstract: The article examines two theories including the utilitarian and moral-rights in context of moral-right concerns and tries to inquire the optimal structure of incentives. It mentions that these theories are very important from the point of incentives in intellectual property. It focuses on expressive interest of users of copyrightable and patentable works in the works they consume.
• Fair Use and Legal Futurism
  Barton Beebe
  "Fair Use and Legal Futurism," 25 Law & Literature 10 (2013)
• Fake Trademark Specimens: An Empirical Study
  Barton Beebe, Jeanne C. Fromer
  "Fake Trademark Specimens: An Empirical Study," 120 Columbia Law Review Forum 217 (2020) (with Barton Beebe)
• Fashion and Intellectual Property
  David Tan, Jeanne C. Fromer, Dev S. Gangjee
  Fashion and Intellectual Property (Cambridge University Press, 2025) (ed. with Dev Gangjee and David Tan)
• Fashion’s Function in Intellectual Property Law
  Christopher Buccafusco, Jeanne C. Fromer
  "Fashion’s Function in Intellectual Property Law," 93 Notre Dame Law Review 51 (2017) (with Christopher Buccafusco)
• Faster Fashion:The Piracy Paradoxand Its Perils
  Kal Raustiala, Christopher Jon Sprigman
  "Faster Fashion: The Piracy Paradox and Its Perils," 39 Cardozo Arts & Ent. L.J. 535 (2021) (with Kal Raustiala)
  Abstract: Fashion today is faster than ever and knockoffs more common, but fashion copying is nothing new. For over a century the fashion industry has bemoaned the ubiquity and ease of copying. Writing in 1916, one industry observer explained the problem: Despite “the expense of thousands of dollars to create a design…copies appeared within forty-eight hours. The only recourse was multiplicity and rapidity of design at such frequent intervals that competitors would lag behind.” Copyists could not be defeated in the marketplace or in court. They could only be outraced. The story is unchanged today. Seeking to explain how the fashion industry curiously survives, and even thrives, in the face of extensive copying that IP theory suggests should destroy the incentive to create, in 2006 we introduced the concept of the “piracy paradox.” The legal freedom to copy designs paradoxically helps, not harms, the fashion industry and makes the industry more, not less, creative. In the years since we published The Piracy Paradox, others have pointed out the ill consequences of ever-faster fashion cycles--firms such as Fashion Nova introduce 600–900 new items per week--including environmental destruction, the exploitation of labor, and the wasteful status competition. In this article, part of a special symposium on The Piracy Paradox published by the Cardozo Arts & Entertainment Law Review, we offer some general comments about these critiques of fast fashion and their connection to foundational questions of intellectual property in the apparel industry.
• First Do No Harm Why judges should butt out of the fight over health care reform
  Christopher Jon Sprigman
  "First Do No Harm Why judges should butt out of the fight over health care reform," Slate, Feb. 11, 2011
• First Ideas
  Jeanne C. Fromer
  "First Ideas," 114 Georgetown Law Journal 353 (2025)
• Fix Prices Globally, Get Sued Locally: International Cartels and Antitrust Jurisdiction
  Christopher Jon Sprigman
  "Fix Prices Globally, Get Sued Locally: International Cartels and Antitrust Jurisdiction," 72 U. Chi. L. Rev. 265 (2005)
• Foreword: Privacy and Information Technology
  Rochelle C. Dreyfuss, David W. Leebron
  "Foreword: Privacy and Information Technology," 1986 Ann. Surv. Am. L. 495 (with David W. Leebron)
• Forgetting Functionality
  Christopher Buccafusco, Jeanne C. Fromer
  "Forgetting Functionality," 166 University of Pennsylvania Law Review Online 119 (2017) (with Christopher Buccafusco)
• Forums of the Future: The Role of Specialized Courts in Resolving Business Disputes
  Rochelle C. Dreyfuss
  "Forums of the Future: The Role of Specialized Courts in Resolving Business Disputes," 61 Brook. L. Rev. 1 (1995)
• Fostering Dynamic Innovation, Development and Trade: Intellectual Property as a Case Study in Global Administrative Law
  Rochelle C. Dreyfuss
  "Fostering Dynamic Innovation, Development and Trade: Intellectual Property as a Case Study in Global Administrative Law," 2009 Acta Juridica 237
  Abstract: International intellectual property law furnishes a case study on the need for norms of global governance. In an earlier era, multilateral intellectual property instruments recognized the dynamic nature of information production; under their terms, nations could balance the interests of producers in earning a return from their intellectual investments against the interests of users in accessing new knowledge for both consumptive and productive purposes. Now that IP is part of the WTO trade regime, information streams have been intensely commodified and an emphasis has been placed on raising IP protection to ever-higher levels. While there are traders in the North and in some emerging economies that are reaping rewards from this system, the TRIPS Agreement is operating as a tax on the South and is chilling innovation is the North. Ostensibly, TRIPS permits nations to strike the appropriate local balance between proprietary and access interests. However, because the drafters of TRIPS incompletely theorized the function of exclusive right regimes, WTO adjudicators have had difficulty evaluating challenges to public-regarding legislation and nations have little guidance for enacting TRIPS-compatible law. But TRIPS does include two potential saving graces. It contemplates close cooperation with WIPO, which now administers upward of 20 intellectual property instruments. Furthermore, the Agreement sets up a Council to oversee compliance. The combined expertise of these two entities could be exploited to rectify the deficits in TRIPS. This paper explores the institutional design issues that must be resolved for these institutions to function effectively. These include mechanisms for incorporating WIPO's expertise into the interpretive process, for insuring that WIPO and the Council operate within the scope of authority delegated by WTO members, for controlling forum shopping, and ensuring transparency, competence, and participation. It ends with suggestions for substantive reform to supplement these administrative devices.
• Fraudulent Trademarks: Statement of Professors Barton Beebe and Jeanne C. Fromer (Senate Judiciary)
  Barton Beebe, Jeanne C. Fromer
  Fraudulent Trademarks: How They Undermine the Trademark System and Harm American Consumers and Businesses: Hearing Before the Subcomm. on Intellectual Property of the S. Comm. on the Judiciary, 116th Cong. (Dec. 3, 2019) (statement of Professors Barton Beebe and Jeanne C. Fromer)
• Free Fall: The Online Market's Consumer Preference Disconnect
  Katherine J. Strandburg
  "Free Fall: The Online Market's Consumer Preference Disconnect," 2013 U. Chi. Legal F. 95
  Abstract: Do Internet users “pay” for online products and services with personal data? The common analogy between online data collection for behaviorally targeted advertising and payment for purchases is seriously misleading. There is no functioning market based on exchanges of personal information for access to online products and services. In a functioning market, payment of a given price signals consumer demand for particular goods and services, transmitting consumer preferences to producers. Data collection serves as “payment” in that critical sense only if its transfer from users to collectors adequately signals user preferences for online goods and services. It does not. Indeed, for reasons explored in this article, the behavioral advertising business model leads to a failed online market and erects barriers to entry for no-data-collection alternatives. The market failure is due in part to the intertwined nature of personal information and involves collective action problems that cannot be solved by consent-based approaches to single transactions. Those collective action problems, in turn, erect barriers to entry for online businesses employing paid or contextual advertising business models. As a result of these factors, the online market is likely to be stuck in a failed state in which products and services are tailored to advertiser preferences for data extraction, rather than to consumer preferences.
• From Corn to Norms: How IP Entitlements Affect What Stand-Up Comedians Create
  Dotan Oliar, Christopher Jon Sprigman
  "From Corn to Norms: How IP Entitlements Affect What Stand-Up Comedians Create," 95 Va. L. Rev. In Brief 57 (2009) (with Dotan Oliar)
• From Incentive to Commodity to Asset: How International Law Is Reconceptualizing Intellectual Property
  Rochelle C. Dreyfuss, Susy Frankel
  "From Incentive to Commodity to Asset: How International Law Is Reconceptualizing Intellectual Property," 36 Mich. J. Int'l L. 557 (2015) (with Susy Frankel)
• FromBilskiBack toBenson: Preemption, Inventing Around, and the Case of Genetic Diagnostics
  Rochelle C. Dreyfuss, James P. Evans
  "From Bilski Back to Benson: Preemption, Inventing Around, and the Case of Genetic Diagnostics," 63 Stan. L. Rev. 1349 (2011) (with James P. Evans)
  Abstract: The long-anticipated decision in Bilski v. Kappos was supposed to end uncertainty regarding the patentability of process claims (or, at the least, business method claims). Instead, the opinion featured a series of anomalies: The Court emphasized strict construction of the Patent Act, but acknowledged three judgemade exceptions to patentability. It disapproved State Street, the Federal Circuit case that had upheld business method patents, but could muster only four votes for the proposition that business methods are in fact unpatentable. But even though the Court upheld business method patents, it invalidated all of Bilski's hedging claims. And while the Justices agreed on one thing--a patent that "preempts" something (a mathematical formula, an approach, a commonly used idea, a wide swath of technological developments, the public's access) is bad--they failed to operationalize the concept. That problem had plagued the law prior to State Street; in the interest of preventing the same set of problems from recurring, this Article uses recent empirical studies on gene patents to tease out indicia ("clues") to supplement the machine-or-transformation test for determining when a claim is preemptive and therefore invalid. Chief among these clues is the inability to invent around claims that cover broad prospects.
• Games Economists Play
  Rochelle C. Dreyfuss
  "Games Economists Play," 53 Vand. L. Rev. 1821 (2000)
  Abstract: In contrast to Americans, there is a paucity of interest in economic theory among continental scholars. One view is that the explanation lies in another aspect of the civil versus common law distinction - a difference in the mode of reasoning which makes the formalism of certain kinds of economic theory more congenial to common law lawyers than to their civil counterparts. If this is true - if economic analysis appeals to American lawyers partly because of its kinship to common law methodology - then there are several implications for law and economics. One is that the subjects of modeling need to be chosen carefully: if models have special salience for legal thinkers, then it is important to be offering models that are geared to the issues lawyers are thinking about. A second implication of seeing common law jurisprudence as particularly susceptible to economic analysis lies in making sure that the common features of the formalism in common law and in economics do not obscure a crucial distinction between the two. Common law's analogic reasoning looks at how particular rules play on specified facts; it is not terribly relevant whether the facts leading up to the rule matched the historical truth about the case where the rule was articulated. This is not so when law is derived from models-there, underlying facts matter.
• Generative AI is a Crisis for Copyright Law
  Kate Crawford, Jason M. Schultz
  "Generative AI is a Crisis for Copyright Law," Issues Sci. & Tech., Winter 2024, at 79 (with Kate Crawford)
• Giving the Federal Circuit a Run for Its Money: Challenging Patents in the PTAB
  Rochelle C. Dreyfuss
  "Giving the Federal Circuit a Run for Its Money: Challenging Patents in the PTAB," 91 Notre Dame L. Rev. 235 (2015)
• Governing the Digital Commons
  Madelyn Rose Sanfilippo, Brett M. Frischmann, Michael J. Madison, Katherine J. Strandburg
  "Governing the Digital Commons," 59 Proc. Haw. Int’l Conf. Sys. Sci. 4369 (2026) (with Madelyn Rose Sanfilippo, Brett M. Frischmann and Michael J. Madison)
• Guest Column: Tarantino vs. Miramax — Behind the NFT ‘Pulp Fiction’ Case, and Who Holds the Advantage
  Kal Raustiala, Christopher Jon Sprigman
  "Guest Column: Tarantino vs. Miramax — Behind the NFT ‘Pulp Fiction’ Case, and Who Holds the Advantage," Hollywood Reporter, Nov. 2021 (with Kal Raustiala)
• Harmonization Without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty
  Jerome H. Reichman, Rochelle C. Dreyfuss
  "Harmonization Without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty," 57 Duke L.J. 85 (2007) (with Jerome H. Reichman)
  Abstract: In this Article, we contend that the World Intellectual Property Organization's proposed Substantive Patent Law Treaty (SPLT) is premature. Developing countries are struggling to adjust to the heightened standards of intellectual property protection required by the TRIPS Agreement of 1994. With TRIPS, at least, these countries obtained side payments (in the form of trade concessions) to offset the rising costs of knowledge products. A free-standing instrument, such as the SPLT, would shrink the remaining flexibilities in the TRIPS Agreement with no side payments and no concessions to the catch-up strategies of developing countries at different stages of technological advancement.
• Hillary for President
  Christopher Jon Sprigman
  "Hillary for President," Chicago Tribune, Aug. 15, 2011
• Home, Home on the Web and Other Fourth Amendment Implications of Technosocial Change
  Katherine J. Strandburg
  "Home, Home on the Web and Other Fourth Amendment Implications of Technosocial Change," 70 Md. L. Rev. 614 (2011)
  Abstract: The rapidly changing social role of the Internet and other digital media requires a rethinking of the scope of Fourth Amendment protection. The social role of the Internet and related technologies goes far beyond serving as a new means of communication, analogous to the telephone and postal mail. To preserve Fourth Amendment protections in the face of changing technology, courts must focus not only on the potential for increasing intrusion into time-honored private realms, as the Supreme Court did in Kyllo, but also on the privacy implications of technology-mediated social change that were recognized in Katz. First, courts should recognize that an aggressive form of third party doctrine suggesting that any exposure of private data to an intermediary destroys reasonable expectations of privacy is inconsistent with Fourth Amendment doctrine relating to shared social spaces. Second, courts should adopt an approach of technosocial continuity, acknowledging both the increasing intrusiveness that technology makes possible and the intertwined and changing social structure of the physical and digital worlds. Viewed from a technosocial perspective, much cloud computing is an extension of the home or office. Similarly, social networking platforms sometimes serve as technosocial extensions of the home, connecting people with their friends, families, and intimates and aggregating the varied pieces of private life in ways that mirror the home's valued social role. To maintain technosocial continuity with Fourth Amendment protection of traditional bastions of privacy, such as the home, courts should zoom out from a focus on translating the Fourth Amendment’s protections to cyberspace and see digitally-mediated social behavior for what it frequently is - an inextricable part of social and private life. To maintain a space for private life away from government scrutiny, the Fourth Amendment’s protections must reflect the technosocial reality of citizens' private lives.
• How New York's Telehealth Shield Law Protects Abortion Care: A Guide for Clinicians
  Christopher J. Morten
  How New York's Telehealth Shield Law Protects Abortion Care: A Guide for Clinicians (Doctors for America & Columbia Law School Science, Health & Information Clinic, Feb. 2025)
• Human Rights in a Technological Age: The Right to Participate in Science
  Rochelle C. Dreyfuss
  "Human Rights in a Technological Age: The Right to Participate in Science," 55 N.Y.U. J. Int’l L. & Pol. 581 (2023)
• Immoral or Scandalous Marks: An Empirical Analysis
  Barton Beebe, Jeanne C. Fromer
  "Immoral or Scandalous Marks: An Empirical Analysis," 8 NYU Journal of Intellectual Property & Entertainment Law 169 (2019) (with Barton Beebe)
• In Memory of Nicholas Day Walrath
  Rochelle C. Dreyfuss
  "In Memory of Nicholas Day Walrath," 92 N.Y.U. L. Rev. 387 (2017)
• In Search of Institutional Identity: The Federal Circuit Comes of Age
  Rochelle C. Dreyfuss
  "In Search of Institutional Identity: The Federal Circuit Comes of Age," 23 Berkeley Tech. L.J. 787 (2008)
  Abstract: The article offers information on the spring 2008 issue of "Berkeley Technology Law Journal." The journal covers emerging issues of law in the areas of intellectual property, cyberlaw, and biotechnology, as well as antitrust and telecommunications law. It is edited by the students of the University of California School of Law, Berkeley, and published four times per year by the Regents of the University of California. Information about the various topics published within this issue is also provided.
• Incorporating Uncertainty in Trademark Surveys: Do Respondents Really Know What They Are Talking About?
  Barton Beebe, Roy Germano, Christopher Jon Sprigman, Joel H. Steckel
  "Incorporating Uncertainty in Trademark Surveys: Do Respondents Really Know What They Are Talking About?," 113 Trademark Reporter 838 (2023) (with Roy Germano, Christopher Jon Sprigman and Joel H. Steckel)
• Indirect Enforcement of the Intellectual Property Clause
  Christopher Jon Sprigman
  "Indirect Enforcement of the Intellectual Property Clause," 30 Colum. J.L. & Arts 565 (2007)
• Information Products: A Challenge to Intellectual Property Theory
  Rochelle C. Dreyfuss
  "Information Products: A Challenge to Intellectual Property Theory," 20 N.Y.U. J. Int’l L. & Pol. 897 (1988)
• Innovation Heuristics: Experiments on Sequential Creativity in Intellectual Property
  Stefan Bechtold, Christopher Buccafusco, Christopher Jon Sprigman
  "Innovation Heuristics: Experiments on Sequential Creativity in Intellectual Property," 91 Ind. L.J. 1251 (2016) (with Christopher Buccafusco and Stefan Bechtold)
  Abstract: All creativity and innovation build on existing ideas. Authors and inventors copy, adapt, improve, interpret, and refine the ideas that have come before them. The central task of intellectual property (IP) law is regulating this sequential innovation to ensure that initial creators and subsequent creators receive the appropriate sets of incentives. Although many scholars have applied the tools of economic analysis to consider whether IP law is successful in encouraging cumulative innovation, that work has rested on a set of untested assumptions about creators’ behavior. This Article reports four novel creativity experiments that begin to test those assumptions. In particular, we study how creators decide whether to copy, or “borrow,” from existing ideas or to innovate around them. Our data suggest that creators do not consistently behave the way that economic analysis assumes. Instead of rationally weighing the objective costs and benefits of different courses of action, creators instead were influenced by decision-making heuristics and individual preferences that often led to suboptimal and inefficient creative behavior. Many of our subjects chose to borrow when innovating was the optimal strategy, and even more chose to innovate when borrowing was the optimal strategy. We find that subjects are only mildly responsive to external incentives. Rather, choices between innovation and borrowing correlated much more powerfully with their internal, subjective beliefs about the difficulty of innovating. We conclude by exploring the implications of our data for innovation markets and IP doctrine.
• Integrated Drug Reviews at the US Food and Drug Administration—Legal Concerns and Knowledge Lost
  Matthew Herder, Christopher J. Morten, Peter Doshi
  "Integrated Drug Reviews at the US Food and Drug Administration—Legal Concerns and Knowledge Lost," 180 Journal of the American Medical Association Internal Medicine 629 (2020) (with Matthew Herder and Peter Doshi)
• Intellectual Property Law and Post-Scarcity Society
  Barton Beebe
  "Intellectual Property Law and Post-Scarcity Society," 2019 Singapore Journal of Legal Studies 377
• Intellectual Property Law and the Sumptuary Code
  Barton Beebe
  "Intellectual Property Law and the Sumptuary Code," 123 Harvard Law Review 809 (2010)
  Abstract: This Article assesses intellectual property law's emerging role as a modern form of sumptuary law. The Article observes that we have begun to rely on certain areas of intellectual property law to provide us with the means to preserve our conventional system of consumption-based social distinction, our sumptuary code, in the face of incipient social and technological conditions that threaten the viability of this code. Through sumptuary intellectual property law, we seek in particular to suppress the revolutionary social and cultural implications of our increasingly powerful copying technology. Sumptuary intellectual property law is thus taking shape as the socially and culturally reactionary antithesis of the more familiar technologically progressive side of intellectual property law. The Article identifies the conditions that are bringing about this peculiar juncture of intellectual property law and sumptuary law and evidences this juncture in various evolving intellectual property law doctrines. The Article further predicts that intellectual property law cannot succeed in sustaining our conventional system of consumption-based social distinction and identifies in this failure the conditions for a different and superior system of social distinction, one characterized more by the production of distinction than by its consumption and one in which intellectual property law promises to play a crucial - and progressive - social role.
• Intellectual Property and the Manufacture of Aura
  Stefan Bechtold, Christopher Jon Sprigman
  "Intellectual Property and the Manufacture of Aura," 36 Harv. J.L. & Tech. 291 (2023) (with Stefan Bechtold)
• Is the Trademark Office a Rubber Stamp?
  Barton Beebe
  "Is the Trademark Office a Rubber Stamp?," 48 Hous. L. Rev. 751 (2011) — VERIFY cite in approval pass
• Law and the Science of Networks: An Overview and an Application to the 'Patent Explosion,'
  Katherine J. Strandburg, Gábor Csárdi, Jan Tobochnik, Péter Érdi, László Zalányi
  "Law and the Science of Networks: An Overview and an Application to the 'Patent Explosion,'" 21 Berkeley Tech. L.J. 1293 (2006) (with Gábor Csárdi, László Zalányi, Jan Tobochnik and Péter Érdi)
  Abstract: The article presents an overview on the evolution and structure of technical relationships between patents in the U.S. patent system. It argues that the legal scholars should engage on network science trend because it provides significant conceptual advances and analytical tools. It illustrates the application of a network approach to empirical data by identifying the result of a network science study of patent acknowledgement.
• Law's Empire and the Final Frontier: Legalizing the Future in the Early Corpus Juris Spatialis
  Barton Beebe
  "Law's Empire and the Final Frontier: Legalizing the Future in the Early Corpus Juris Spatialis," 108 Yale L.J. 1737 (1999) (note)
• Learning Optimal Dialogue Strategies: A Case Study of a Spoken Dialogue Agent for Email
  Marilyn A. Walker, Jeanne C. Fromer, Shrikanth Narayanan
  "Learning Optimal Dialogue Strategies: A Case Study of a Spoken Dialogue Agent for Email," in Proceedings of COLING/ACL '98 (1998) (with Marilyn A. Walker & Shrikanth Narayanan)
• Less Restrictive Alternatives in Antitrust Law
  C. Scott Hemphill
  "Less Restrictive Alternatives in Antitrust Law," 116 Columbia Law Review 927 (2016)
  Abstract: Antitrust courts often confront “mixed” conduct that has two contrasting effects, one harmful and the other beneficial. For example, a nationwide agreement not to pay college football players harms the players while benefiting fans of amateur sports. An important tool for analyzing mixed conduct is to compare the action to a hypothesized alternative and to ask whether the alternative action is “less restrictive” and hence less harmful. The less restrictive alternative (LRA) test is used widely, from the rule of reason to mergers to monopolization. The test often assumes a particular, narrow form, that the alternative must be dominant: not only less restrictive but also equally effective. In other words, could the benefits have been achieved equally well with less harm? This Article offers a new account of the LRA test that draws inspiration from constitutional law and other fields. Dominant LRAs offer a shortcut that avoids the difficult tradeoff between increased benefit and increased harm. However, most LRAs are less effective rather than dominant. Such an alternative offers a basis for condemning conduct when the alternative is preferable on balance to the conduct. Balancing in antitrust is not a myth as many believe; instead, a tradeoff of incremental benefit and harm occurs in the assessment of LRAs. The LRA test serves the further function of “smoking out” an inference of anticompetitive effect. As the Article shows, courts that restrict their analysis to dominant LRAs run a high risk of false negatives, particularly when they also ignore the overall competitive effects of the restraint, as in the recent O’Bannon v. NCAA decision. Finally, the Article proposes best practices in assessing LRAs to minimize the risk of false positives.
• Less as More in Intellectual Property Law
  Barton Beebe
  "Less as More in Intellectual Property Law: A Response to Jessica Silbey's Against Progress," 102 B.U. L. Rev. Online 61 (2022)
• Let Them Eat Fake Cake: The Rational Weakness of China’s Anti-Counterfeiting Policy
  Kal Raustiala, Christopher Jon Sprigman
  Let Them Eat Fake Cake: The Rational Weakness of China’s Anti-Counterfeiting Policy, in The Luxury Economy and Intellectual Property: Critical Reflections 263 (Haochen Sun, Barton Beebe and Madhavi Sunder, eds., Oxford University Press, 2015) (with Kal Raustiala)
• Limitless Worker Surveillance
  Ifeoma Ajunwa, Kate Crawford, Jason M. Schultz
  "Limitless Worker Surveillance," 105 Cal. L. Rev. 735 (2017) (with Ifeoma Ajunwa and Kate Crawford)
• Lohan, Noriega video game lawsuits are a troubling sign for the arts
  Kal Raustiala, Christopher Jon Sprigman
  "Lohan, Noriega video game lawsuits are a troubling sign for the arts," Los Angeles Times, Oct. 30, 2014 (with Kal Raustiala)
• Looking to Statutory Intertext: Toward the Use of the Rabbinic Biblical Interpretive Stance in American Statutory Interpretation
  Jeanne C. Fromer
  "Looking to Statutory Intertext: Toward the Use of the Rabbinic Biblical Interpretive Stance in American Statutory Interpretation," 115 Harvard Law Review 1456 (2002)
• Machines as the New Oompa-Loompas: Trade Secrecy, the Cloud, Machine Learning, and Automation
  Jeanne C. Fromer
  "Machines as the New Oompa-Loompas: Trade Secrecy, the Cloud, Machine Learning, and Automation," 94 NYU Law Review 706 (2019)
• Market Effects Bearing on Fair Use
  Jeanne C. Fromer
  "Market Effects Bearing on Fair Use," 90 Washington Law Review 615 (2015)
  Abstract: Copyright law, which promotes the creation of cultural and artistic works by protecting these works from being copied, excuses infringement that is deemed to be a fair use. Whether an otherwise infringing work is a fair use is determined by courts weighing at least four factors, one of which is the effect of the otherwise infringing work on the market for the copyrighted work. The Supreme Court's decision just over twenty years ago in Campbell v. Acuff-Rose Music, Inc. opened the door to a laudable analytical framework for the bearing of market effects on fair use. First, Campbell supports a more full-bodied investigation of the market effects--both harms and benefits--of defendants' works on plaintiffs' copyrighted works. Courts can eliminate conclusory reasoning by appreciating that both market harms and benefits can matter in assessing fair use. In so doing, courts avoid weighing only the mere possibility that a licensing market does or could exist for a copyrighted work as a reflection of market harm and ignoring the possibility that a use of a copyrighted work might confer benefits on the copyright holder. Second, Campbell implied two important ways to divide relevant from irrelevant market effects. One ought to exclude market effects from consideration if they are empirically unlikely or if there are effects unrelated to the protectable aspects of the copyrighted work, such as its ideas or the societal value attributed to the work. This analytical framework for market effects bearing on fair use advances copyright's goal of promoting the creation of artistic and cultural works from which society can benefit.
• Memes on Memes and the New Creativity
  Amy Adler, Jeanne C. Fromer
  "Memes on Memes and the New Creativity," 97 NYU Law Review 453 (2022) (with Amy Adler)
• Mergers that Harm Sellers
  C. Scott Hemphill, Nancy L. Rose
  "Mergers that Harm Sellers," 127 Yale Law Journal 2078 (2018) (with Nancy L. Rose)
  Abstract: This Feature examines the antitrust treatment of mergers that harm sellers. We separately consider two mechanisms of harm, increased classical monopsony power and increased bargaining leverage. We show that lost upstream competition is an actionable harm to the competitive process. Our central claim is that harm to sellers in an input market is sufficient to support antitrust liability. We defend this conclusion against the contrary view that demonstrated harm to the merging firms’ downstream purchasers or final consumers is an essential element of any antitrust claim. Nor is it necessary for plaintiffs to demonstrate a reduction in the input quantity transacted. We further argue that claimed “efficiencies” premised on a reduction in buy-side competition are not efficiencies at all.
• Mindgeek, or the Biggest Digital Streaming Platform You've Never Heard Of
  Kal Raustiala, Christopher Jon Sprigman
  "Mindgeek, or the Biggest Digital Streaming Platform You've Never Heard Of," Reason, Aug. 8, 2018 (with Kal Raustiala)
• Minds, Machines, and the Law: The Case of Volition in Copyright Law
  Mala Chatterjee, Jeanne C. Fromer
  "Minds, Machines, and the Law: The Case of Volition in Copyright Law," 119 Columbia Law Review 1887 (2019) (with Mala Chatterjee)
• Misappropriation on a Global Scale: Extraterritoriality and Applicable Law in Transborder Trade Secrecy Cases
  Rochelle C. Dreyfuss, Linda Silberman
  "Misappropriation on a Global Scale: Extraterritoriality and Applicable Law in Transborder Trade Secrecy Cases," 8 Cybaris Intell. Prop. L. Rev. 265 (2017) (with Linda Silberman)
• Much Ado About Preemption
  Katherine J. Strandburg
  "Much Ado About Preemption," 50 Hous. L. Rev. 563 (2012)
  Abstract: Preemption has emerged as the leading contender for conceptual grounding of the patentable subject matter doctrine's exclusion of abstract ideas and natural phenomena from patentability. Despite the Supreme Court?s frequent use of preemption rhetoric, however, the concept cannot provide a satisfactory explanation of the Court's patentable subject matter jurisprudence or a sound theoretical basis for the doctrine. Patentable subject matter jurisprudence has two distinct threads, one concerned with overly broad impact on downstream innovation and the other based on per se exclusion of abstract ideas and natural phenomena from patentability. Most of the Court's patentable subject matter decisions apply a per se exclusion analysis. While preemption is conceptually related to the downstream impact thread, the term is misleading even in that context. When preemption rhetoric is employed in the majority of cases, which are based on per se exclusion, it leads to confusion and incoherence. This Article disentangles the preemption rhetoric from the per se exclusion analysis in the Supreme Court's cases. Per se exclusion analysis necessarily involves two steps: identifying the per se excluded elements in a claim and applying some rule to determine whether additional claim limitations render the claim patentable. The Article identifies these two steps within the Supreme Court's cases and seeks to prepare the ground for coherent theoretical analysis. Preemption rhetoric is a distraction from important questions that must be answered to give patentable subject matter doctrine a firm theoretical grounding. First, what are the normative bases of the per se exclusions? As the discussion of the cases shows, failing to answer this question leads to seemingly arbitrary (or result-driven) identification of the per se excluded elements in a claim. Second, what rules should be used to determine whether a particular claim incorporating per se excluded elements along with other limitations is patentable subject matter? The current muddle in patentable subject matter analysis is due largely to failure to moor these second-step rules to the normative basis for per se exclusion.
• Negotiation for Automated Generation of Temporal Multimedia Presentations
  Mukesh Dalal, Steven Feiner, Kathleen McKeown, Shimei Pan, Michelle Zhou, Tobias Höllerer, James Shaw, Yong Feng, Jeanne C. Fromer
  "Negotiation for Automated Generation of Temporal Multimedia Presentations," in Proceedings of ACM Multimedia '96 55 (1996) (with Mukesh Dalal, Steven Feiner, Kathleen McKeown et al.)
• Net Neutrality Is Great, but It Won’t Make Broadband Cheaper
  Christopher Jon Sprigman
  "Net Neutrality Is Great, but It Won’t Make Broadband Cheaper," New Yorker, June 21, 2016
• Nonobviousness: A Comment on Three Learned Papers
  Rochelle C. Dreyfuss
  "Nonobviousness: A Comment on Three Learned Papers," 12 Lewis & Clark L. Rev. 431 (2008)
  Abstract: This Article, a comment on the contributions of John Duffy, Rebecca Eisenberg, and Gregory Mandel, addresses three areas where improvements could be made in the law on nonobviousness. First, the quantum of inventiveness required for patentability should reflect the capabilities of the ordinary artisan. Second, the asymmetry in the error rate of nonobviousness determinations should be taken into account in setting the standard of nonobviousness. Third, the concept of nonobviousness—or, better, inventive step—should be operationalized by considering the opportunities, risks, and nonpatent incentives the inventor faced at the time of the innovation.
• Note, Promoting the Vindication of Civil Rights Through the Attorney's Fees Awards Act
  Rochelle C. Dreyfuss
  "Note, Promoting the Vindication of Civil Rights Through the Attorney's Fees Awards Act," 80 Colum. L. Rev. 346 (1980)
• Open Source Hardware Weather Report 2020
  Clarissa Redwine, Michael Weinberg
  "Open Source Hardware Weather Report 2020," (October 2020) (with Clarissa Redwine)
• Pam Samuelson and the Emergence of the Technology Law and Policy Clinical Movement
  Jason M. Schultz
  "Pam Samuelson and the Emergence of the Technology Law and Policy Clinical Movement," 39 Berkeley Tech. L.J. 1117 (2024)
• Panel 2: Liability Issues and 3d Printing
  Mark Bartholomew, Gianni P. Servodidio, Katherine Strandburg, Felix Wu
  "Panel 2: Liability Issues and 3d Printing," 34 Cardozo Arts & Ent. L.J. 32 (2016) (with Mark Bartholomew et al.)
• Parental Initiative in the Age of Signal Bleed
  Barton Beebe
  "Parental Initiative in the Age of Signal Bleed," 109 Yale L.J. 627 (1999) (case note)
• Patent Carrots and Sticks: An Economic Model of Nonobviousness
  Katherine J. Strandburg, Michael J. Meurer
  "Patent Carrots and Sticks: An Economic Model of Nonobviousness," 12 Lewis & Clark L. Rev. 547 (2008) (with Michael J. Meurer)
  Abstract: The authors develop an informal model of the impact of the nonobviousness standard on the choice of research projects. Previous models assume that the basic question confronting a researcher is, “Shall I produce this particular invention?” More realistically, the authors think a researcher asks, “Which research path shall I pursue?” The model shows that a patent serves as a carrot to induce the choice of more difficult projects than would be pursued under the nonpatent alternative. The nonobviousness standard serves as a stick to prod researchers to choose even more difficult projects. The results of the model help us understand why a fact-intensive issue like obviousness is a question of law. The model also helps us understand the optimal relationship between the nonobviousness standard and patentable subject-matter exclusions. Commentators often suggest subject-matter exclusions are unnecessary if the nonobviousness standard is used appropriately. The authors' model suggests this intuition is wrong for inventions characterized by large social spillovers and high social costs of patenting; a simple subject-matter exclusion would be more efficient.
• Patent Citation Networks Revisited: Signs of a Twenty-First Century Change?
  Katherine J. Strandburg, Gabor Csardi, Jan Tobochnik, Peter Erdi, Laszlo Zalanyi
  "Patent Citation Networks Revisited: Signs of a Twenty-First Century Change?," 87 N.C. L. Rev. 1657 (2009) (with Gabor Csardi, Jan Tobochnik, Peter Erdi and Laszlo Zalanyi)
  Abstract: This Article reports an empirical study of the network composed of patent “nodes” and citation “links” between them. It builds on an earlier study in which we argued that trends in the growth of the patent citation network provide evidence that the explosive growth in patenting in the late twentieth century was due at least in part to the issuance of increasingly trivial patents. We defined a measure of patent stratification based on comparative probability of citation; an increase in this measure suggests that the USPTO is issuing patents of comparatively less technological significance. Provocatively, we found that stratification increased in the 1990s during the “patent explosion.” Here we report a further study indicating that the trend toward increasing stratification leveled off beginning around 2000. This observation suggests that there was a de facto tightening of patentability standards well before the doctrinal shifts reflected in the Supreme Court’s flurry of patent activity beginning around 2005. We also investigate the possibility that changes in our measure of stratification are due to something other than changes in patentability standards. While not conclusive, our results suggest that neither shifts in predominance of technological areas nor changes in citation practice account for our observations. We have thus identified an apparent puzzle: What happened around 2000 to cause a de facto tightening of patentability standards at the USPTO?
• Patent Disclosure
  Jeanne C. Fromer
  "Patent Disclosure," 94 Iowa Law Review 539 (2009)
  Abstract: Patent law is premised on the onward march of science and technology. Patent law encourages cumulative innovation, both by dangling the patent before the inventor as an incentive to invent in the first instance and by requiring him to disclose to the public his invention so that science can progress by building on the divulged knowledge. Patent disclosure is essential. It indirectly stimulates others' future innovation by revealing to them the invention so that they can use it fruitfully when the patent term expires and so that they can design around, improve upon, or be inspired by the invention both during and after the patent term. Judicial decisions and nearly all legal scholarship on patent law have therefore not surprisingly consistently cited disclosure's critical role in the patent system, but they do so without much theoretical or institutional analysis. The rare handful of articles addressing the issue of patent disclosure suggests that disclosure is and ought to be of almost no importance in designing the patent system. This Article disagrees and argues in favor of its centrality in the patent system. Given this deserved centrality, this Article maintains that patent disclosures should be, well, patent, so that inventors can use these disclosures to culminate scientific and technological progress more effectively, thereby fulfilling the underlying premise of the patent system-stimulating innovation. The Article contends that the disclosure function is underperforming due to four systemic reasons-the inadequacies of the writer, the index, the reader, and enforcement-and suggests how to improve them. Surely, invigoration of the patent system's disclosure function carries with it costs, which this Article explores, suggesting they might not be too significant in relation to the benefits that patent disclosure offers in terms of growth of innovation. The Article then posits how invigoration of the patent system's disclosure function bridges what has seemed to be an impassable gap between those who believe in strong patent rights and those who think instead that inventions and information about them should be freely available.
• Patent Fair Use 2.0
  Katherine J. Strandburg
  "Patent Fair Use 2.0," 1 U.C. Irvine L. Rev. 265 (2011)
  Abstract: It is time to update the idea of “patent fair use” to account for the evolution of technology and of inventive paradigms in the years since O’Rourke’s seminal proposal in 2000. A fair-use-type ex post approach to cabining patent exclusivity is even more attractive as a theoretical matter now than it was in 2000. In this article I propose and justify a set of “patent fair use 2.0” factors: 1) Is there a “justifiable” failure to purchase or license? 2) Did the infringer make a substantial improvement over the patentee’s invention and was there some reason for blocking patent failure? 3) Does the availability of alternative innovation paradigms in the technological arena provide evidence of reduced importance of patent incentives? 4) Was the infringer a knowing copyist, independent inventor, or something in between? If the infringer was not a knowing copyist was her failure to locate the patent through search reasonable in light of patent search costs in the particular technology, custom in the industry, the foreseeability of infringement, and the infringer’s commercial, non-commercial, or small entity status?
• Patentography
  Jeanne C. Fromer
  "Patentography," 85 N.Y.U. Law Review 1444 (2010)
  Abstract: Many critics have noted that patent litigation’s institutional structure is riddled with shortcomings that lead to unjust and inefficient outcomes and decrease public faith in the legal system. This Article relies on theory and empirical data to propose that the patent litigation system can be improved by harnessing patentography—the geography of patent disputes. There are three principal concerns with patent litigation’s institutional structure: widespread forum shopping in district court patent cases, district courts’ typically poor factfinding and lawmaking in these cases, and insufficient deference by the Federal Circuit—the court hearing nearly all patent appeals—to district courts’ factual findings. Harnessing patentography by restricting venue in patent litigation to the principal place of business of one of its defendants will help repair each problem. It will clamp down on forum shopping. Contrary to conventional wisdom, it will also improve district courts’ patent decisionmaking. As industries tend to cluster stably in discrete geographic areas, my proposed rule will tend to cluster patent cases by technology in particular districts, such as software cases in the Northern District of California and pharmaceutical cases in the District of New Jersey. Clustering together large numbers of an industry’s patent cases in a limited number of district courts will develop those courts’ proficiencies in patent law and in the underlying industry-specific facts critical to sound legal determinations. Under my proposal, this clustering will occur in districts in which judges and juries already tend to have background industry knowledge, given the associated industry cluster. An empirical review of patent cases filed in district courts in 2005 confirms that harnessing patentography as I propose would intensify patent litigation clusters. Finally, improving district courts’ decisionmaking ought to encourage the Federal Circuit to defer more appropriately to district courts’ factual findings. - See more at: http://www.nyulawreview.org/issues/volume-85-number-5/patentography#sthash.4W8G9WKk.dpuf
• Patents, Innovation, and Competition in Pharmaceuticals: The Hatch-Waxman Act after 40 Years
  C. Scott Hemphill, Bhaven N. Sampat
  "Patents, Innovation, and Competition in Pharmaceuticals: The Hatch-Waxman Act after 40 Years," 39 Journal of Economic Perspectives, Spring 2025, at 27 (with Bhaven N. Sampat)
• Pathological Patenting: The PTO as Cause or Cure
  Rochelle C. Dreyfuss
  "Pathological Patenting: The PTO as Cause or Cure," 104 Mich. L. Rev. 1559 (2006)
  Abstract: Reviews the book "Innovation and Its Discontents: How Our Broken Patent System Is Endangering Innovation and Progress and What To Do About It," by Adam B. Jaffe and Josh Lerner.
• Patient Access to Health Device Data: Toward a Legal Framework
  Charles Duan, Christopher J. Morten
  Patient Access to Health Device Data: Toward a Legal Framework, in Digital Health Care Outside of Traditional Clinical Settings: Ethical, Legal, and Regulatory Challenges and Opportunities 27 (I. Glenn Cohen, Daniel B. Kramer, Julia Adler-Milstein and Carmel Shachar, eds., Cambridge University Press, 2024) (with Charles Duan)
• Paying for Delay: Pharmaceutical Patent Settlement as a Regulatory Design Problem
  C. Scott Hemphill
  "Paying for Delay: Pharmaceutical Patent Settlement as a Regulatory Design Problem," 81 New York University Law Review 1553 (2006)
• Percolation, Uniformity, and Coherent Adjudication: The Federal Circuit Experience
  Rochelle C. Dreyfuss
  "Percolation, Uniformity, and Coherent Adjudication: The Federal Circuit Experience," 66 SMU L. Rev. 505 (2013)
  Abstract: The article offers information the role of U.S. Federal Circuit in adjudicating the patent law related cases to influence the decision of the U.S. Supreme Court. It discusses various topics including percolation, uniformity and coherent adjudication. It also discusses the reforms in the patent law and its administration in the U.S.
• Pharmaceutical Manufacturer Kickback Resolutions and Associated Financial Penalties, 2000-2025
  Tobias Liu, Joseph S. Ross, Christopher J. Morten
  "Pharmaceutical Manufacturer Kickback Resolutions and Associated Financial Penalties, 2000-2025," 9 Journal of the American Medical Association Network Open, no. 3, Art. e261735, 2026, at 1 (with Tobias Liu, Joseph S. Ross and Reshma Ramachandran)
• Pioneers of Open: Three Case Studies of Library and Museum Early Adopters
  Michael Weinberg
  "Pioneers of Open: Three Case Studies of Library and Museum Early Adopters," (January 2023)
• Piracy Fuels the Fashion Industry
  Kal Raustiala, Christopher Jon Sprigman
  "Piracy Fuels the Fashion Industry," New York Times, Sept. 26, 2016 (with Kal Raustiala)
• Politics, Science, and the Future of FDA Drug Regulation: FDA’s Review of Mifepristone REMS as a Litmus Test
  Reshma Ramachandran, Christopher J. Morten
  "Politics, Science, and the Future of FDA Drug Regulation: FDA’s Review of Mifepristone REMS as a Litmus Test," 335 Journal of the American Medical Association 585 (2026) (with Reshma Ramachandran)
• Privacy Decision-Making and the Effects of Privacy Choice Architecture: Experiments Toward the Design of Behaviorally-Aware Privacy Regulation
  Christopher Jon Sprigman, Stephan Tontrup
  "Privacy Decision-Making and the Effects of Privacy Choice Architecture: Experiments Toward the Design of Behaviorally-Aware Privacy Regulation," 21 J. Empirical Legal Stud. 577 (2024) (with Stephan Tontrup)
  Abstract: For many reasons the current notice and choice privacy framework fails to empower individuals in effectively making their own privacy choices. In this Article we offer evidence from three novel experiments showing that at the core of this failure is a cognitive error. Notice and choice caters to a heuristic that people employ to make privacy decisions. This heuristic is meant to judge trustworthiness in face-to-face-situations. In the online context, it distorts privacy decision-making and leaves potential disclosers vulnerable to exploitation. From our experimental evidence exploring the heuristic’s effect, we conclude that privacy law must become more behaviorally aware. Specifically, privacy law must be redesigned to intervene in the cognitive mechanisms that keep individuals from making better privacy decisions. A behaviorally-aware privacy regime must centralize, standardize and simplify the framework for making privacy choices. To achieve these goals, we propose a master privacy template which requires consumers to define their privacy preferences in advance—doing so avoids presenting the consumer with a concrete counterparty, and this, in turn, prevents them from applying the trust heuristic and reduces many other biases that affect privacy decision-making. Our data show that blocking the heuristic enables consumers to consider relevant privacy cues and be considerate of externalities their privacy decisions cause. The master privacy template provides a much more effective platform for regulation. Through the master template the regulator can set the standard for automated communication between user clients and website interfaces, a facility which we expect to enhance enforcement and competition about privacy terms.
• Privacy Governing Knowledge in Public Facebook Groups for Political Activism
  Madelyn Rose Sanfilippo, Katherine J. Strandburg
  "Privacy Governing Knowledge in Public Facebook Groups for Political Activism," 24 Info. Commc’n & Soc’y 960 (2021) (with Madelyn Rose Sanfilippo)
• Privacy Regulation and Innovation Policy
  Yafit Lev-Aretz, Katherine J. Strandburg
  "Privacy Regulation and Innovation Policy," 22 Yale J.L. & Tech. 256 (2020) (with Yafit Lev-Aretz)
• Protecting Open Innovation: The Defensive Patent License as a New Approach to Patent Threats, Transaction Costs, and Tactical Disarmament
  Jason M. Schultz, Jennifer M. Urban
  "Protecting Open Innovation: The Defensive Patent License as a New Approach to Patent Threats, Transaction Costs, and Tactical Disarmament," 26 Harv. J.L. & Tech. 1 (2012) (with Jennifer M. Urban)
• Protecting the Public Domain of Science: Has the Time for an Experimental Use Defense Arrived?
  Rochelle C. Dreyfuss
  "Protecting the Public Domain of Science: Has the Time for an Experimental Use Defense Arrived?," 46 Ariz. L. Rev. 457 (2004)
  Abstract: Addresses questions about the public domain of science in the U.S. Considerations whether the scientific community needed the help of an experimental use defense to patent infringement; Impact of previous notions which postulates that science was distinct from technology; Development of strategies for preserving a rich sphere of public science.
• Public Sector Innovation and the Constraints of ‘Platform Thinking’: An Account of Johnson & Johnson's Adenoviral Vector Vaccines
  Karim Sariahmed, Janice E. Graham, Matthew Herder, Christopher J. Morten
  "Public Sector Innovation and the Constraints of ‘Platform Thinking’: An Account of Johnson & Johnson's Adenoviral Vector Vaccines," 387 Social Science & Medicine, Art. 118687, Dec. 2025, at 1 (with Karim Sariahmed, Janice E. Graham and Matthew Herder)
• Publicizing Corporate Secrets
  Christopher J. Morten
  "Publicizing Corporate Secrets," 171 University of Pennsylvania Law Review 1319 (2023)
• Recommendations for Statutory Reform of the Patent Term Extension System
  Ethan Lin
  Recommendations for Statutory Reform of the Patent Term Extension System to Increase Public Accountability and Fight Soaring Drug Prices (NYU Engelberg Center & Technology Law and Policy Clinic report, Mar. 2021) (Ethan Lin; edited by Christopher J. Morten)
• Reconciling Intellectual and Personal Property
  Aaron Perzanowski, Jason M. Schultz
  "Reconciling Intellectual and Personal Property," 90 Notre Dame L. Rev. 1211 (2014) (with Aaron Perzanowski)
  Abstract: The article looks at the copy ownership and its functions in the copyright system to construct a workable notion of consumer property rights in digital media in the U.S. Topics discussed include relationship between intellectual and personal property; the erosion of the notion of consumer ownership; and the opinion of an American court in "Parton v. Prang" case.
• Reconsidering Experimental Use
  Rochelle C. Dreyfuss
  "Reconsidering Experimental Use," 50 Akron L. Rev. 699 (2016)
  Abstract: In the years since the Supreme Court began to narrow the scope of patentable subject matter, uncertainties in the law have had a deleterious impact on several important innovation sectors, including, in particular, the life sciences industry. There are now initiatives to expand patentable subject matter legislatively. In this article, I suggest that the Supreme Court’s jurisprudence is an outgrowth of the concern that patents on fundamental discoveries impede scientific research. To deal with that issue, any measure to expand the subject matter of patenting should be coupled with a parallel expansion of defenses to infringement liability, including the restoration of a robust research defense. Most developed countries recognize strong defenses in favor of researchers and as OECD studies show, several are developing creative environments that lure scientists to relocate. It is therefore essential that the United States move quickly to enact laws that both encourage and facilitate research and that will preserve its technological dominance.
• Reducing the Power of the Supreme Court: Neither Liberal nor Conservative but Necessary (and Possible)
  Eric J. Segall, Christopher Jon Sprigman
  "Reducing the Power of the Supreme Court: Neither Liberal nor Conservative but Necessary (and Possible)," N.Y.U. J. Legis. & Pub. Pol’y Quorum (2020) (with Eric J. Segall)
• Reply: Remix and Cultural Production
  C. Scott Hemphill, Jeannie Suk
  "Reply: Remix and Cultural Production," 61 Stanford Law Review 1227 (2009) (with Jeannie Suk)
• Reply: The Complexity of Commons
  Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg
  "Reply: The Complexity of Commons," 95 Cornell L. Rev. 839 (2010) (with Michael J. Madison and Brett M. Frischmann)
  Abstract: Constructing Commons in the Cultural Environment, and responses to that article by Professors Thráinn Eggertsson, Wendy Gordon, Gregg Macey, Robert Merges, Elinor Ostrom, and Lawrence Solum. This short Reply comments briefly on each of those responses.
• Resale Royalties Would Hurt Emerging Artists
  Christopher Jon Sprigman, Guy Rub
  "Resale Royalties Would Hurt Emerging Artists," Artsy, Aug. 8, 2018 (with Guy Rub)
• Researcher Access to Social Media Data: Lessons From Clinical Trial Data Sharing
  Christopher J. Morten, Gabriel Nicholas, Salomé Viljoen
  "Researcher Access to Social Media Data: Lessons From Clinical Trial Data Sharing," 39 Berkeley Technology Law Journal 109 (2024) (with Gabriel Nicholas and Salomé Viljoen)
• Retelling Copyright: The Contributions of the Restatement of Copyright Law
  Jeanne C. Fromer, Jessica Silbey
  "Retelling Copyright: The Contributions of the Restatement of Copyright Law," 44 Columbia Journal of Law & the Arts 341 (2021) (with Jessica Silbey)
• Rethinking Post-Sale Confusion
  Kal Raustiala, Christopher Jon Sprigman
  "Rethinking Post-Sale Confusion," 108 Trademark Reporter 881 (2018) (with Kal Raustiala)
  Abstract: Are trademark owners harmed when observers on the street mistake knockoffs for the real thing? The concept of "post-sale confusion"—which has resulted in verdicts over over $300 million—is predicated on the notion that trademarks can be harmed even if no consumer is ever confused about what they are purchasing. In this commentary, we critique the concept of post-sale confusion and unpack the logic and empirics that undergird efforts to base liability on it. We lay out the conditions under which post-sale confusion might exist. First, we explain why the real-world conditions required to generate post-sale confusion are more difficult to prove than courts and litigants have previously recognized. Those conditions are fairly limited, and the resulting path to a defensible assertion of post-sale confusion is narrow. We conclude that post-sale confusion is real, but rare. Next, we consider the type of harm that may ensue when onlookers are confused post-sale. We identify two types of possible harm: (1) harm to the senior brand's reputation for quality; and (2) harm to the ability of either the senior brand or consumers to signal status via exclusivity. We explain the circumstances under which each of these forms of harm may occur. But it is important to underscore that post-sale confusion often produces neither form of harm. Indeed, we go further. In some cases, post-sale confusion may even benefit mark owners, consumers, or both.
• Rulemaking and Inscrutable Automated Decision Tools
  Katherine J. Strandburg
  "Rulemaking and Inscrutable Automated Decision Tools," 119 Colum. L. Rev. 1851 (2019)
• Scales of Justice
  Kal Raustiala, Christopher Jon Sprigman
  "Scales of Justice," Slate, May 12, 2014 (with Kal Raustiala)
• Search and Persuasion in Trademark Law
  Barton Beebe
  "Search and Persuasion in Trademark Law," 103 Michigan Law Review 2020 (2005)
  Abstract: Conceptualizes search sophistication and persuasion sophistication, two distinct forms of consumer sophistication. Meaning of trademark distinctiveness; Concept of search sophistication; Relation between trademark distinctiveness and persuasion.
• Shanzhai, Sumptuary Law, and Intellectual Property Law in Contemporary China
  Barton Beebe
  "Shanzhai, Sumptuary Law, and Intellectual Property Law in Contemporary China," 47 U.C. Davis L. Rev. 849 (2014)
• Should Progressives Wage War on the Supreme Court?
  Daniel Hemel, Christopher Jon Sprigman
  "Should Progressives Wage War on the Supreme Court?," Slate, Oct. 11, 2018 (with Daniel Hemel)
• Should Software Companies be Able, Through Contracts, to Prevent Their Competitors from "Reverse Engineering" Their Products?
  Christopher Jon Sprigman
  "Should Software Companies be Able, Through Contracts, to Prevent Their Competitors from "Reverse Engineering" Their Products?," FindLaw, Sept. 26, 2002
• Should the Law Care Why Intellectual Property Rights Have Been Asserted?
  Jeanne C. Fromer
  "Should the Law Care Why Intellectual Property Rights Have Been Asserted?," 53 Houston Law Review 549 (2015)
  Abstract: The American legal system has standard justification stories for our intellectual property systems. Copyright law exists to stimulate the creation and dissemination of creative and artistic works valued by society. Patent law does the same for scientific and technological inventions. These laws offer to creators time-limited exclusive rights to foster these valuable creations without imposing too much cost on society’s use of these creations. The intellectual property laws do so by affording rightsholders an opportunity to vindicate certain interests in their covered works—that are directly related to these laws’ purpose—vis-à-vis third parties. Yet a not insignificant number of assertions of copyright and patent rights against third parties seek not to protect these interests, but others, such as privacy, protection of ancillary markets, or mere extraction of rents without making a sufficient contribution to society. The question is whether patent and copyright laws concern themselves with and should concern themselves with why these rights have been asserted. I argue that assertions of rights with ill-fitting motivations are sufficiently worrisome that courts ought to strongly consider weighing these motivations before granting relief. (This Article was delivered as the University of Houston Law Center Institute for Intellectual Property & Information Law Twelfth Annual Spring Lecture (sponsored by Baker Botts L.L.P.).)
• Should the U.S. Government Actively Assert Its Own Patents?
  Christopher Morten, Barry Datlof, Amy Kapczynski, Donna Meuth, Zain Rizvi
  "Should the U.S. Government Actively Assert Its Own Patents?," 11 New York University Journal of Intellectual Property and Entertainment Law 19 (2021) (with Barry Datlof, Amy Kapczynski, Donna Meuth and Zain Rizvi)
• Specialized Adjudication
  Rochelle C. Dreyfuss
  "Specialized Adjudication," 1990 BYU L. Rev. 377
  Abstract: It has been suggested that Congress should alleviate the federal court docket crisis by establishing a series of specialized courts with limited jurisdiction over particular areas. Specialization courts, in theory, enable the judiciary to meet the US' adjudication needs effectively and may even produce benefits of its own. However, the specialized court proposal is not without its problems. Since the jurisdiction of the court must be narrow and defined with precision, the judges would get a parochial view of the legal landscape that could lead to distorted decision making. Problems can be minimized through the choice of specialty fields and by implementing the strategy with care. Specialization should be used only when there is some public consensus on the policies underlying the law that the special tribunal administers.
• Squelching Creativity
  Kal Raustiala, Christopher Jon Sprigman
  "Squelching Creativity," Slate, Mar. 12, 2015 (with Kal Raustiala)
• Standing With a Bundle of Sticks: The All Substantial Rights Doctrine in Action
  Mark J. Abate, Christopher J. Morten
  "Standing With a Bundle of Sticks: The All Substantial Rights Doctrine in Action," 28 Fordham Intellectual Property, Media and Entertainment Law Journal 477 (2018) (with Mark J. Abate)
• Star Athletica and the Problem of Panaestheticism
  Barton Beebe
  "Star Athletica and the Problem of Panaestheticism," 9 UC Irvine L. Rev. 275 (2019)
• State Supreme Courts Can Resolve Early Legal Recruiting Mess
  Jeanne C. Fromer
  "State Supreme Courts Can Resolve Early Legal Recruiting Mess," Bloomberg Law (June 23, 2026)
• Statutory Damages Under the Copyright Act: An Empirical Study
  Benjamin K. Brady, Roy Germano, Christopher Jon Sprigman
  "Statutory Damages Under the Copyright Act: An Empirical Study," 2022 Mich. St. L. Rev. 1179 (with Benjamin K. Brady and Roy Germano)
• Stitching Together a Solution: Lessons from the Open Source Hardware Response to COVID-19
  Anne Bowser, Alex Long, Alexandra Novak, Alison Parker, Michael Weinberg
  "Stitching Together a Solution: Lessons from the Open Source Hardware Response to COVID-19," (February 2021) (with Anne Bowser, Alex Long, Alexandra Novak and Alison Parker)
• Strategic Games and Algorithmic Secrecy
  Ignacio N. Cofone, Katherine J. Strandburg
  "Strategic Games and Algorithmic Secrecy," 64 McGill L.J. 623 (2019) (with Ignacio N. Cofone)
• Strengthening the FDA’s Enforcement of ClinicalTrials.gov Reporting Requirements
  Reshma Ramachandran, Christopher J. Morten, Joseph S. Ross
  "Strengthening the FDA’s Enforcement of ClinicalTrials.gov Reporting Requirements," 326 Journal of the American Medical Association 2131 (2021) (with Reshma Ramachandran and Joseph S. Ross)
• Stripping the Courts’ Jurisdiction
  Christopher Jon Sprigman
  "Stripping the Courts’ Jurisdiction," American Prospect, May 5, 2021
• Systematic Overview of Freedom of Information Act Requests to the Department of Health and Human Services from 2008 to 2017
  Alexander C. Egilman, Christopher J. Morten, Joseph S. Ross
  "Systematic Overview of Freedom of Information Act Requests to the Department of Health and Human Services from 2008 to 2017," 4 Research Integrity and Peer Review, Article number 26, 2019, at 1 (with Alexander C. Egilman, Joshua D. Wallach, Peter Lurie and Joseph S. Ross)
• TRIPS and the Dynamics of Intellectual Property Lawmaking
  Graeme B. Dinwoodie, Rochelle C. Dreyfuss
  "TRIPS and the Dynamics of Intellectual Property Lawmaking," 36 Case W. Rsrv. J. Int’l L. 95 (2004) (with Graeme B. Dinwoodie)
  Abstract: In prior work, we took up the question of the TRIPs Agreement's resilience to changes in domestic law. We argued that such resilience is necessary because information production is a dynamic enterprise. As new industries emerge and mature, nations must have the flexibility to modify their intellectual property rules to readjust the balance between public and private rights. In the course of that study, we examined approaches to TRIPs dispute resolution that could cabin the choices of legislation available to deal with emergent substantive problems, and which could distort the legal environment in which creative enterprises are conducted. In this piece, we continue our consideration of the resilience of the Agreement and its commitment to neo-federalism. Here, however, we move from a focus on outcomes to the dynamics of the legislative process, examining the extent to which TRIPs dispute resolution adequately accommodates the operation of each member's political economy as it relates to intellectual property lawmaking. Frequently, as intellectual property lawmaking becomes fiercely contested, reforms can only occur when a balanced package of rules can be reached. We ask whether such deals (or perhaps which of such deals, depending upon the connection between the reforms) should be taken into account by WTO panels. We argue that when legislation represents offsetting benefits and detriments, respect for domestic political dynamics requires panels to consider constituent pieces of such legislation in the context of the package in which they were enacted. In previous work, we questioned whether the jurisprudence that has developed with regard to the GATT's trade provisions should apply equally to intellectual property, noting that differences between trade and intellectual property policy mandated different approaches. Here we reiterate that position, but make something of a converse argument as well: there are commonalities between the problems that nations experience in executing their trade commitments and their intellectual property commitments. Thus, it is significant that in its early years, the GATT incorporated strategies that created flexibility and permitted nations to deal autonomously with matters of domestic trade; we argue that similar mechanisms are required in TRIPs jurisprudence, especially in the Agreement's formative stage. We also focus on the effect that TRIPs, as currently understood, has on domestic lawmaking. If WTO panel decisions intrude more into national law, might lawmakers begin to enact legislation in reliance on international invalidation of whole or parts of the enactment? Should formulation of domestic policy take this into account? Further, would the formalistic approach that has been taken to TRIPs jurisprudence benefit domestic lawmaking by reducing the effect of lobbying? Or would it simply induce more nuanced log-rolling, or the enactment of laws aimed at influencing intellectual property production but under a different legislative rubric (such as food and drug regulation or consumer law)? Indeed, answers to these questions might affect not only lawmaking at the national level but, in turn, the form of WTO dispute settlement. We go so far as to suggest that there may be a role for the (much-feared) nonviolation complaints in navigating these complexities.
• TRIPS—Round II: Should Users Strike Back?
  Rochelle C. Dreyfuss
  "TRIPS—Round II: Should Users Strike Back?," 71 U. Chi. L. Rev. 21 (2004)
  Abstract: The TRIPS Agreement, the instrument of the General Agreement on Tariffs and Trade (GATT) governing intellectual property protection at the international level, is structured to directly protect the rights of intellectual property holders. It does little, however, to explicitly safeguard the interests of those who seek to use protected works. User interests are largely left to domestic practice through provisions like the famous "three-part" tests, which permit members to create limited derogations from protection, but only so long as they do not unreasonably conflict with normal exploitation of the protected work or unreasonably prejudice the right holder (taking into account, in the case of patents, the interests of third parties). It is rapidly becoming evident, however, that there are problems with a bifurcated system that, in effect, permits members to expand intellectual property rights, but which makes them subject to challenge before the WTO when they reduce any of the incidents of protection. Developing countries are the most obviously vulnerable. This essay is mainly designed to make a case for using the next round of GATT negotiations to add explicit user rights to the Agreement.
• Taking Intellectual Property into Their Own Hands
  Amy Adler, Jeanne C. Fromer
  "Taking Intellectual Property into Their Own Hands," 107 California Law Review 1455 (2019) (with Amy Adler)
• Taxonomizing Synthetic Data for Law
  Katherine J. Strandburg, Ignacio Cofone, Nicholas Tilmes
  "Taxonomizing Synthetic Data for Law," 110 Iowa L. Rev. Online 217 (2025) (with Ignacio Cofone and Nicholas Tilmes)
• Technological Self-Sufficiency and the Role of Novelty Traps
  Rochelle C. Dreyfuss, Daniel Benoliel
  "Technological Self-Sufficiency and the Role of Novelty Traps," 24 Vand. J. Ent. & Tech. L. 441 (2022) (with Daniel Benoliel)
• Testing for Trademark Dilution in Court and the Lab
  Barton Beebe, Roy Germano, Christopher Jon Sprigman, Joel H. Steckel
  "Testing for Trademark Dilution in Court and the Lab," 86 University of Chicago Law Review 611 (2019) (with Roy Germano, Christopher Jon Sprigman and Joel H. Steckel)
• The 99¢ Question
  Christopher Jon Sprigman
  "The 99¢ Question," 5 J. Telecomm. & High Tech. L. 87 (2006)
• The ALI Principles on Transnational Intellectual Property Disputes: Why Invite Conflicts?
  Rochelle C. Dreyfuss
  "The ALI Principles on Transnational Intellectual Property Disputes: Why Invite Conflicts?," 30 Brook. J. Int’l L. 819 (2005)
• The Anti-Ownership Ebook Economy: How Publishers and Platforms Have Reshaped the Way We Read in the Digital Age
  Sarah Lamdan, Jason M. Schultz, Michael Weinberg, Claire Woodcock
  "The Anti-Ownership Ebook Economy: How Publishers and Platforms Have Reshaped the Way We Read in the Digital Age," (July 2023) (with Sarah Lamdan, Michael Weinberg and Claire Woodcock)
• The Audience in Intellectual Property Infringement
  Jeanne C. Fromer, Mark A. Lemley
  "The Audience in Intellectual Property Infringement," 112 Michigan Law Review 1251 (2014) (with Mark A. Lemley)
  Abstract: Every intellectual property (“IP”) right has its own definition of infringement. In this Article, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP infringement. That patent law, for example, focuses on an expert audience while trademark looks to a consumer audience explains many of the differences in how patent and trademark cases are decided. Expert audiences are likely to evaluate infringement based on the technical similarity between the plaintiff’s and defendant’s works. Consumers, by contrast, are likely to pay more attention to market substitution and less attention to how things work under the hood. Understanding the different audiences in IP infringement is critical to understanding how the IP regimes variously define infringement. The focus on audience has normative as well as descriptive implications. Neither patent law, with its focus on experts and technical similarity, nor trademark law, with its market-based consumer focus, has it entirely correct. Rather, we suggest that as a general matter, infringement of an IP right should require both technical similarity and market substitution. An ideal IP regime should care about a defendant’s conduct only if that conduct actually causes injury to the plaintiff’s market and its work is sufficiently like the plaintiff’s that it is reasonable to give the plaintiff control over that work. Assessing infringement through the expert’s eyes ensures that the law prevents closely related works in the field while permitting sufficiently different contributions. The consumer vantage point ensures that we protect IP owners only when they have been harmed in the marketplace. IP owners who want to show infringement should have to demonstrate both that the defendant’s work is technically similar to their own from the expert’s vantage point and that the defendant’s use causes the plaintiff harm in the marketplace. Copyright law, which looks to both experts and consumers at various points in the infringement analysis, is on the right track.
• The Big Data Regulator, Rebooted: Why and How the FDA Can and Should Disclose Confidential Data on Prescription Drugs
  Christopher J. Morten, Amy Kapczynski
  "The Big Data Regulator, Rebooted: Why and How the FDA Can and Should Disclose Confidential Data on Prescription Drugs," 109 California Law Review 493 (2021) (with Amy Kapczynski)
• The Compatibility of Patent Law and the Internet
  Jeanne C. Fromer
  "The Compatibility of Patent Law and the Internet," 78 Fordham Law Review 2783 (2010)
  Abstract: The essay explores how patent law in the U.S. can be structured to support Internet innovation. The theories of the Internet, as put forth by the books "The Future of the Internet--And How to Stop It," by Jonathan Zittrain, and "In Search of Jefferson's Moose: Notes on the State of Cyberspace," by David Post, are discussed. The importance of patents for startup Internet software companies, which prevents larger firms from copying their software, is noted.
• The Constitutionality of Medicare Drug-Price Negotiation Under the Takings Clause
  Raj Bhargava, Nathan Brown, Amy Kapczynski, Christopher J. Morten, Aaron S. Kesselheim et al.
  "The Constitutionality of Medicare Drug-Price Negotiation Under the Takings Clause," 51 The Journal of Law, Medicine and Ethics 961 (2023) (with Raj Bhargava, Nathan Brown, Amy Kapczynski, Aaron S. Kesselheim et al.)
• The Continuing Debacle of U.S. Antidilution Law: Evidence from the First Year of Trademark Dilution Revision Act Case Law
  Barton Beebe
  "The Continuing Debacle of U.S. Antidilution Law: Evidence from the First Year of Trademark Dilution Revision Act Case Law," 24 Santa Clara Computer & High Tech. L.J. 449 (2008)
• The Creative Employee and the Copyright Act of 1976
  Rochelle C. Dreyfuss
  "The Creative Employee and the Copyright Act of 1976," 54 U. Chi. L. Rev. 590 (1987)
• The Creativity Effect
  Christopher Buccafusco, Christopher Jon Sprigman
  "The Creativity Effect," 78 U. Chi. L. Rev. 31 (2011) (with Christopher Buccafusco)
  Abstract: This Article reports the first experiment to demonstrate the existence of a valuation anomaly associated with the creation of new works. To date, a wealth of social science research has shown that the least amount of money that owners of goods are willing to accept to part with their possessions is often far greater than the amount that purchasers would be willing to pay to obtain them. This phenomenon, known as the endowment effect, may create substantial inefficiencies in many markets. Our experiment demonstrates the existence of a related "creativity effect." We show that creators of works value their creations substantially more than do both potential purchasers of their works and mere owners of the works. The creators in our study valued their works (in this case, paintings) more than four times higher than potential buyers did and almost twice as high as did owners of the works. Further, we provide evidence that these differences are the result of creators' irrational optimism about the quality of their works. We conclude by discussing the implications of these findings for intellectual property (IP) theory in general and IP licensing in particular. Our findings challenge the classical economic approach to IP rights, and they suggest that IP markets may be less efficient than previously recognized.
• The Debate Over § 1367: Defining the Power to Define Federal Judicial Power
  Rochelle C. Dreyfuss
  "The Debate Over § 1367: Defining the Power to Define Federal Judicial Power," 41 Emory L.J. 13 (1992)
• The Development of Endo-selective Epoxide-opening Cascades in Water
  Christopher J. Morten, Jeffery A. Byers, Aaron R. Van Dyke, Ivan Vilotijevic, Timothy F. Jamison
  "The Development of Endo-selective Epoxide-opening Cascades in Water," 38 Chemical Society Review 3175 (2009) (with Jeffery A. Byers, Aaron R. Van Dyke, Ivan Vilotijevica and Timothy F. Jamison)
• The Enemies of Invention
  Christopher Jon Sprigman, Kal Raustiala
  "The Enemies of Invention," Psychology Today, May 7, 2013 (with Kal Raustiala)
• The Federal Circuit as an Institution: What Ought We to Expect?
  Rochelle C. Dreyfuss
  "The Federal Circuit as an Institution: What Ought We to Expect?," 43 Loy. L.A. L. Rev. 827 (2010)
  Abstract: Congress created the U.S. Court of Appeals for the Federal Circuit to alleviate the overcrowded dockets of the regional circuits and to send all patent appeals to one court. The court has achieved many of the goals for which it was created, but it may not be responding effectively to some fields' patent issues. Further, in the last decade the Supreme Court has reversed a very high percentage of the Federal Circuit's patent decisions. In their articles, Professors Cotropia and Wagner dispute some of the criticism that the Federal Circuit has attracted. Cotropia refutes the critics with empirical evidence of the rates of dissents and en banc decisions in the Federal Circuit. Wagner discusses the problems caused by the conflicting roles of the Federal Circuit (decider of cases versus manager of patent law adjudication). This Article posits that patent law must be reinterpreted given the massive changes technology has undergone in the last twenty-eight years. Although either Congress or the Supreme Court could take on a larger role with respect to patent law, this Article argues that the Federal Circuit should take on that role as it is best equipped to handle it. Reprinted by permission of the publisher.
• The Federal Circuit: A Case Study in Specialized Courts
  Rochelle C. Dreyfuss
  "The Federal Circuit: A Case Study in Specialized Courts," 64 N.Y.U. L. Rev. 1 (1989)
• The Federal Circuit: A Continuing Experiment in Specialization
  Rochelle C. Dreyfuss
  "The Federal Circuit: A Continuing Experiment in Specialization," 54 Case W. Rsrv. L. Rev. 769 (2004)
  Abstract: Presents the result of a study of the administration of patent law by the Federal Circuit of the U.S. Court of Appeals. Move of the court to delegate the adjudication of patent disputes in the Federal Circuit; Observation of benefits and detriments of specialization in the court; Efforts of the court to use its special position to focus considerable thought on key patent law issues; Detection of some problems faced by the court.
• The Federal Circuit’s Reach as a Specialized Court Beyond Patent Law
  Jeanne C. Fromer
  The Federal Circuit’s Reach as a Specialized Court Beyond Patent Law, in Improving Intellectual Property 138 (Susy Frankel, Margaret Chon, Graeme B. Dinwoodie, Jens Schovsbo et al. eds., 2023)
• The Filtration Problem in Copyright's 'Substantial Similarity' Infringement Test
  Christopher Jon Sprigman, Samantha Fink Hedrick
  "The Filtration Problem in Copyright's 'Substantial Similarity' Infringement Test," 23 Lewis & Clark L. Rev. 571 (2019) (with Samantha Fink Hedrick)
  Abstract: Copyright protects original artistic and literary expression. It does not protect ideas, facts, or other elements that may be found in artistic and literary works but which Section 102(b) of the Copyright Act, or the judge-made merger and scènes à faire doctrines, place outside the scope of copyright protection. The principle that copyright protects expression but not ideas is easy enough to articulate, but actually implementing it in copyright infringement litigation is considerably more difficult. This Article focuses not on the theory of idea/expression boundary-setting, but on the mechanics. In particular, how can we make sure that the distinction between protectable expression and unprotectable ideas is faithfully reflected in infringement verdicts? To implement the copyright infringement standard, judges typically engage in a process of “filtration,” by which they separate out ideas and other unprotectable elements of a work. But this procedure does not, by itself, ensure that the idea/expression distinction plays its intended role in the ultimate decision regarding infringement, especially when that decision is made by a jury. If the court’s initial filtration is to have any role in ensuring that infringement is found only on the basis of similarity of protected elements, the jury must be instructed regarding the elements of the works at issue that are protected by copyright and those that are not. But in some cases, instructions may not be enough. To ensure that the idea/expression distinction is reflected faithfully, the jury must be able to replicate and apply the court’s filtration in reaching its verdict. As it stands today, the ways courts have formulated the infringement standard in copyright litigation actively undermines this critical obligation of the jury, encouraging jurors to consider unprotectable elements in their ultimate determinations. Part III sets out some measures that courts could take to more effectively communicate to juries the boundary between protected and unprotected elements in particular infringement cases. We will caution up front that it is unlikely that our recommendations, either singly or if implemented together, will eliminate a problem that seems endemic to our current copyright law, and a more dramatic change to the infringement standard may be required. The idea/expression distinction is likely to be systematically underenforced so long as juries are encouraged to use intuition rather than discernment in deciding about infringement—even if courts do a better job than they do now of providing juries with the instructions and other resources necessary for them to implement the idea/expression distinction.
• The Future of Trademarks in a Global Multilingual Economy: Evidence and Lessons from the European Union
  Barton Beebe, Jeanne C. Fromer
  "The Future of Trademarks in a Global Multilingual Economy: Evidence and Lessons from the European Union," 112 Trademark Reporter 902 (2022) (with Barton Beebe)
• The German Misappropriation Origins of Trademark Antidilution Doctrine: A Translation of the 1924OdolOpinion of the Elberfeld Landgericht
  Barton Beebe
  The German Misappropriation Origins of Trademark Antidilution Doctrine: A Translation of the 1924 Odol Opinion of the Elberfeld Landgericht, in Transition and Coherence in Intellectual Property Law: Essays in Honour of Annette Kur 460 (Niklas Bruun, Graeme B. Dinwoodie, Marianne Levin and Ansgar Ohly, eds., Cambridge University Press, 2021)
• The Great Regulatory Dodge
  Helen Nissenbaum, Katherine J. Strandburg, Salomé Viljoen
  "The Great Regulatory Dodge," 37 Harv. J.L. & Tech. 1231 (2023) (with Helen Nissenbaum and Salomé Viljoen)
• The Intellectual Property Clause's External Limitations
  Jeanne C. Fromer
  "The Intellectual Property Clause's External Limitations," 61 Duke Law Journal 1329 (2012)
  Abstract: The text, structure, and history of the Intellectual Property Clause (IP Clause), as well as subsequent governmental activity, Supreme Court doctrine, and policy, show that the IP Clause limits Congress from using any of its other powers "To promote the Progress of Science and useful Arts" through laws that reach beyond the power conferred by the IP Clause to "secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." That is, the evidence marshaled by this Article shows that the IP Clause externally limits Congress from seeking, via legislation, to promote the progress of science and useful arts, in any way other than by enacting laws that secure to authors and inventors exclusive rights in their writings and discoveries for limited times. Yet the story of Congress's power in this area has another side: Since the late twentieth century, Congress has increasingly reached beyond the IP Clause's means to promote the Clause’s ends, often asserting its expansive—and less limited—commerce and treaty powers. To some degree, this shift reflects the fact that laws regulating intellectual property often have multiple purposes, including trade and foreign relations interests, which sometimes point in more expansive directions than do those of the more limited IP Clause. This Article synthesizes these competing purposes and provides an analytical framework under which courts, legislators, and others can assess the constitutionality of federal legislation. This framework affords a presumption against the constitutionality of laws that promote the IP Clause's ends but subvert its means, a presumption that may be overcome only by clear and convincing evidence that Congress, pursuant to its other more permissive powers, intentionally chose to supersede the IP Clause's means because of paramount, legitimate interests. This framework suggests that a number of existing federal laws, such as federal trade-secrecy provisions and antibootlegging laws, might be unconstitutional. The framework also suggests how to assess the constitutionality of laws that would protect databases, laws passed pursuant to international agreements with other countries, and laws that establish federal funding for scientific and artistic works.
• The Intellectual Property Clause's Preemptive Effect
  Jeanne C. Fromer
  The Intellectual Property Clause's Preemptive Effect, in Intellectual Property and the Common Law 265 (Shyamkrishna Balganesh, ed., Cambridge University Press, 2013)
• The Internet of Things We Don’t Own?
  Jason M. Schultz
  "The Internet of Things We Don’t Own?," Comm. ACM (ACM/New York, N.Y.), May 2016, at 36
• The Jeffersonian Model of U.S. Cultural Property Law
  Christopher Jon Sprigman
  "The Jeffersonian Model of U.S. Cultural Property Law," 2024 Tutela & Restauro [Prot. & Restoration] (Monografie 1, Supplemento [Monograph 1 Supp.], The Italian Law of Cultural Heritage: A Dialogue with the United States) 155
• The Jurisprudence of Genetics
  Rochelle C. Dreyfuss, Dorothy Nelkin
  "The Jurisprudence of Genetics," 45 Vand. L. Rev. 313 (1992) (with Dorothy Nelkin)
• The Law Applicable to Secondary Liability in Intellectual Property Cases
  Graeme B. Dinwoodie, Rochelle C. Dreyfuss, Annette Kur
  "The Law Applicable to Secondary Liability in Intellectual Property Cases," 42 N.Y.U. J. Int’l L. & Pol. 201 (2009) (with Graeme B. Dinwoodie and Annette Kur)
  Abstract: In recent years, intellectual property law has paid increasing attention to issues of private international law. The American Law Institute promulgated Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Dispute in 2008. In Europe, the Max Planck Institutes’ Conflict of Laws in Intellectual Property Conflicts of Law effort is expected in 2010. However, neither of these projects has dealt explicitly with choice of law on contributory liability (or any other form of secondary liability that makes one party liable for the harm caused by another). Yet, actions premised on secondary liability are rapidly becoming the favored route for efficient enforcement on a worldwide basis. Examples include cases that attempt to impose liability on manufacturers of copying technologies for infringements caused by those who use their equipment; on purveyors of peer-to-peer file sharing software for the activities of those who download material without rightholders’ permissions; on internet service providers for subscribers’s infringing postings; and on other intermediaries, such as auction sites. In principle, secondary liability actions can occur in all areas of intellectual property law. However, for purposes of this paper, we concentrate on trademark cases, such as the litigation involving the responsibility of the online auction house, e-Bay, for the sale of counterfeit goods on its website. The problems posed in that area are particularly complex. After offering a stylized fact pattern to illustrate the problems, we consider the different ways in which courts might deal with questions arising in cases where secondary liability claims are asserted. We suggest that the traditional approach to choice of law in trademark cases generates unacceptable uncertainties for intermediaries and that a genuine engagement with conflicts scholarship would help mediate among the diverse interests and policy concerns. In the end, however, we conclude that private international law solutions may not resolve all the complications of multinational secondary liability cases. Thus, we are moved to propose, as an alternative solution, an autonomous (substantive) principle applicable in these cases. We conclude with some thoughts about how the different approaches engage with existing models for the resolution of trans-border intellectual property disputes and with the international intellectual property regime more generally.
• The Law, Culture, and Economics of Fashion
  C. Scott Hemphill, Jeannie Suk
  "The Law, Culture, and Economics of Fashion," 61 Stanford Law Review 1147 (2009) (with Jeannie Suk)
  Abstract: Fashion is one of the world's most important creative industries. As the most immediate visible marker of self-presentation, fashion creates vocabularies for self-expression that relate individuals to society. Despite being the core of fashion and legally protected in Europe, fashion design lacks protection against copying under U.S. intellectual property law. This Article frames the debate over whether to provide protection to fashion design within a reflection on the cultural dynamics of innovation as a social practice. The desire to be in fashion - most visibly manifested in the practice of dress - captures a significant aspect of social life, characterized by both the pull of continuity with others and the push of innovation toward the new. We explain what is at stake economically and culturally in providing legal protection for original designs, and why a protection against close copies only is the proper way to proceed. We offer a model of fashion consumption and production that emphasizes the complementary roles of individual differentiation and shared participation in trends. Our analysis reveals that the current legal regime, which protects trademarks but not fashion designs from copying, distorts innovation in fashion away from this expressive aspect and toward status and luxury aspects. The dynamics of fashion lend insight into dynamics of innovation more broadly, in areas where consumption is also expressive. We emphasize that the line between close copying and remixing represents an often underappreciated but promising direction for intellectual property today.
• The Layers of Obviousness in Patent Law
  Jeanne C. Fromer
  "The Layers of Obviousness in Patent Law," 22 Harvard Journal of Law & Technology 75 (2008)
• The Legal Imitation Game: Generative AI’s Incompatibility with Clinical Legal Education
  Jake Karr, Jason M. Schultz
  "The Legal Imitation Game: Generative AI’s Incompatibility with Clinical Legal Education," 92 Fordham L. Rev. 1867 (2024) (with Jake Karr)
• The NIH-Moderna Vaccine: Public Science, Private Profit, and Lessons for the Future
  Christopher J. Morten
  "The NIH-Moderna Vaccine: Public Science, Private Profit, and Lessons for the Future," 51 The Journal of Law, Medicine and Ethics (Issue S2) 35 (2023)
• The NSA's Culture of 'Legal Compliance' Still Breaks the Law
  Christopher Jon Sprigman
  "The NSA's Culture of 'Legal Compliance' Still Breaks the Law," JustSecurity, Feb. 24, 2014
• The Nature of Sequential Innovation
  Christopher Buccafusco, Stefan Bechtold, Christopher Jon Sprigman
  "The Nature of Sequential Innovation," 59 Wm. & Mary L. Rev. 1 (2017) (with Christopher Buccafusco and Stefan Bechtold)
  Abstract: When creators and innovators take up a new task, they face a world of existing creative works, inventions, and ideas, some of which are governed by intellectual property (IP) rights. This presents a choice: Should the creator pay to license those rights? Or, alternatively, should the creator undertake to innovate around them? Our Article formulates this “build on/build around decision” as the fundamental feature of sequential creativity, and it maps a number of factors—some legal, some contextual—that affect how creators are likely to decide between building on existing IP or building around it. Importantly, creators are influenced by more than just formal IP rights. We identify three other sets of factors—(1) Technological and Artistic, (2) Market, and (3) Creator—that can also affect the path of sequential innovation by encouraging either building on or building around. Our focus on creators’ build on/build around decisions offers a richer, but more complex, account of the nature of sequential innovation and, in so doing, yields insights into its efficient legal regulation.
• The New Copyright Opportunist
  Jeanne C. Fromer
  "The New Copyright Opportunist," 67 Journal of the Copyright Society of the U.S.A. 1 (2020)
• The One Redeeming Quality of NFTs Might Not Even Exist
  Kal Raustiala, Christopher Jon Sprigman
  "The One Redeeming Quality of NFTs Might Not Even Exist," Slate, Apr. 2021 (with Kal Raustiala)
• The Piracy Paradox Revisited
  Kal Raustiala, Christopher Jon Sprigman
  "The Piracy Paradox Revisited," 61 Stan. L. Rev. 1201 (2009) (with Kal Raustiala)
• The Piracy Paradox: Innovation and Intellectual Property in Fashion Design
  Kal Raustiala, Christopher Jon Sprigman
  "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design," 92 Va. L. Rev. 1687 (2006) (with Kal Raustiala)
  Abstract: The orthodox justification for intellectual property is utilitarian. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. This orthodox justification is logically straightforward and well reflected in the law. Yet a significant empirical anomaly exists: the global fashion industry, which produces a huge variety of creative goods without strong IP protection. Copying is rampant as the orthodox account would predict. Yet innovation and investment remain vibrant. Few commentators have considered the status of fashion design in IP law. Those who have almost uniformly criticize the current legal regime for failing to protect apparel designs. But the fashion industry itself is surprisingly quiescent about copying. Firms take steps to protect the value of trademarks, but appear to accept appropriation of designs as a fact of life. This diffidence about copying stands in striking contrast to the heated condemnation of piracy and associated legislative and litigation campaigns in other creative industries. Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected - and economically successful? The fashion industry is a puzzle for the orthodox justification for IP rights. This paper explores this puzzle. We argue that the fashion industry counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it. We call this the piracy paradox. This paper offers a model explaining how the fashion industry's piracy paradox works, and how copying functions as an important element of and perhaps even a necessary predicate to the industry's swift cycle of innovation. In so doing, we aim to shed light on the creative dynamics of the apparel industry. But we also hope to spark further exploration of a fundamental question of IP policy: to what degree are IP rights necessary to induce innovation? Are stable low-IP equilibria imaginable in other industries as well? Part I describes the fashion industry and its dynamics and illustrates the prevalence of copying in the industry. Part II advances an explanation for the piracy paradox that rests on two features: induced obsolescence and anchoring. Both phenomena reflect the status-conferring power of fashion, and both suggest that copying, rather than impeding innovation and investment, promotes them. Part II also considers, and rejects, alternative explanations of the endurance of the low-IP status quo. Part III considers extensions of our arguments to other fields. By examining copyright's negative space - those creative endeavors that copyright does not address - we argue can we can better understand the relationship between copyright and innovation.
• The Right of Publicity: A New Framework for Regulating Facial Recognition
  Jason M. Schultz
  "The Right of Publicity: A New Framework for Regulating Facial Recognition," 88 Brook. L. Rev. 1039 (2023)
• The Role of Creativity in Trademark Law
  Jeanne C. Fromer
  "The Role of Creativity in Trademark Law," 86 Notre Dame Law Review 1885 (2011)
  Abstract: The article discusses various aspects of U.S. trademark law, including the differences between it and the patent and copyright branches of intellectual property law, trademark's promotion of creativity, and the expansion of coverage under trademark law. The author examines the role of creativity in trademark law by analyzing the 2010 legal dispute between Stefani Germanotta, also known as entertainer Lady Gaga, and her ex-boyfriend and music producer Rob Fusari.
• The Science of Proving Trademark Dilution
  Barton Beebe, Roy Germano, Christopher Jon Sprigman, Joel H. Steckel
  "The Science of Proving Trademark Dilution," 109 Trademark Reporter 955 (2019) (with Roy Germano, Christopher Jon Sprigman and Joel H. Steckel)
• The Scope of Strong Marks: Should Trademark Law Protect the Strong More Than the Weak?
  Barton Beebe, C. Scott Hemphill
  "The Scope of Strong Marks: Should Trademark Law Protect the Strong More Than the Weak?," 92 New York University Law Review 1339 (2017) (with C. Scott Hemphill)
• The Second Digital Disruption: Streaming and the Dawn of Data-Driven Creativity
  Kal Raustiala, Christopher Jon Sprigman
  "The Second Digital Disruption: Streaming and the Dawn of Data-Driven Creativity," 94 N.Y.U. L. Rev. 1555 (2019) (with Kal Raustiala)
  Abstract: This Article explores how the explosive growth of online streaming is transforming the market for creative content. Two decades ago, the popularization of the internet led to what we refer to here as the first digital disruption: Napster, file-sharing, and the re-ordering of numerous content industries, from music to film to news. The advent of mass streaming has led us to a second digital disruption, one driven by the ability of streaming platforms to harvest massive amounts of data about consumer preferences and consumption patterns. Coupled to powerful computing, the data that firms like Netflix, Spotify, and Apple collect allows those firms to know what consumers want in incredible detail. This knowledge has long shaped advertising; now it is beginning to shape the content streaming firms purchase or even produce, a phenomenon we call "data-driven creativity.” This Article explores these phenomena across a range of firms and content industries. In particular, we take a close look at the firm that is perhaps farthest along in its use of data-driven creativity. We show how MindGeek, the little-known parent company of Pornhub and a leader in the market for adult entertainment, has leveraged streaming data not only to organize and suggest content to consumers but even to shape creative decisions. MindGeek is itself the product of the same forces—the shift to digital distribution and the accompanying explosion of free content—that transformed mainstream creative industries and paved the way for the rise of streaming. We first show how the adult industry adapted to the first digital disruption; that story aligns with similar accounts of how creative industries adapt to a loss of control over intellectual property. We then show how MindGeek and other streaming firms such as Netflix, Spotify, and Amazon are leveraging the second digital disruption, using data to make decisions about content promotion, aggregation, dissemination, and investment. Finally, we consider what these trends suggest for competition and innovation in markets for creative work. By making creative production far less risky, data-driven creativity may drive down the need for strong IP rights and reshape conventional assumptions about the purpose and role of IP. At the same time, the rise of data-driven creativity may reinforce the tendency of online markets toward dominance by a few major firms, with significant implications for competition and innovation.
• The Second Patent Bargain
  Christopher J. Morten
  "The Second Patent Bargain," 111 Iowa Law Review 1583 (2026)
• The Semiotic Analysis of Trademark Law
  Barton Beebe
  "The Semiotic Analysis of Trademark Law," 51 UCLA Law Review 621 (2004)
  Abstract: Current thinking about trademark law is dominated by economic analysis, which views the law as a system of rules designed to promote informational efficiencies. Yet the economic analysis has failed to explain, because it is unequipped to do so, a number of concepts of fundamental importance in the law, most notably the concepts of trademark "distinctiveness" and trademark "dilution." This article proposes that a more robust understanding of trademark law may be achieved by viewing the law through the lens of semiotics, a systems-theoretical field of knowledge, of which structural linguistics forms a part, dedicated to the study of signs and sign-systems.
• The State of Open Source Hardware 2021
  Michael Weinberg
  "The State of Open Source Hardware 2021," (2021)
• The Strategies of Anticompetitive Common Ownership
  C. Scott Hemphill, Marcel Kahan
  "The Strategies of Anticompetitive Common Ownership," 129 Yale Law Journal 1392 (2020) (with Marcel Kahan)
  Abstract: Scholars and antitrust enforcers have raised concerns about anticompetitive effects that may arise when institutional investors hold substantial stakes in competing firms. Their concern rests on empirical evidence that such common concentrated ownership is associated with higher prices and lower output. This evidence sharply challenges both antitrust orthodoxy and corporate governance scholarship. In this Article, we examine the causal mechanisms that might link common ownership to anticompetitive effects. We consider whether the current empirical evidence supports the existence of these mechanisms and whether institutional investors would plausibly employ them. Our main conclusion is that most proposed mechanisms either lack significant empirical support or else are implausible. Notably, some widely discussed mechanisms—for example, cartel facilitation and passive failures to encourage competition among portfolio firms—are not empirically tested. Moreover, institutional investors’ incentives to increase portfolio value are weak, reducing the likelihood that these investors will pursue mechanisms that carry significant reputational or legal risks. We find, however, that a different mechanism, which we call “selective omission,” is both consistent with the evidence and plausibly employed by institutional investors. Looking ahead, our analysis suggests paths for future research and provides a guide for future investigation into how common owners and firms may interact to produce anticompetitive effects.
• The Suppressed Misappropriation Origins of Trademark Antidilution Law: The Landgericht Elberfeld’sOdolOpinion and Frank Schechter’s "The Rational Basis of Trademark Protection"
  Barton Beebe
  The Suppressed Misappropriation Origins of Trademark Antidilution Law: The Landgericht Elberfeld’s Odol Opinion and Frank Schechter’s "The Rational Basis of Trademark Protection", in Intellectual Property at the Edge: The Contested Contours of IP 59 (Rochelle Cooper Dreyfuss and Jane C. Ginsburg, eds., Cambridge University Press, 2014)
• The Supreme Court Is a Historically Regressive and Presently Expendable Institution
  Christopher Jon Sprigman
  "The Supreme Court Is a Historically Regressive and Presently Expendable Institution," Slate, Oct. 11, 2018
• The Supreme Court radically altered the meaning of the First Amendment this year — in an unsigned opinion
  Christopher Jon Sprigman
  "The Supreme Court radically altered the meaning of the First Amendment this year — in an unsigned opinion," Raw Story, May 29, 2021
• The Supreme Court’s Latest Ruling on Drug Liability and Its Implications for Future Failure-to-Warn Litigation
  Christopher J. Morten, Aaron S. Kesselheim, Joseph S. Ross
  "The Supreme Court’s Latest Ruling on Drug Liability and Its Implications for Future Failure-to-Warn Litigation," 47 The Journal of Law, Medicine and Ethics 783 (2019) (with Aaron S. Kesselheim and Joseph S. Ross)
• The U.S. Chamber of Commerce’s IP Myth
  Roy Germano, Christopher Jon Sprigman
  "The U.S. Chamber of Commerce’s IP Myth," Slate, June 21, 2016 (with Roy Germano)
• The Unending Search for the Optimal Infringement Filter
  Sonia Katyal, Jason M. Schultz
  "The Unending Search for the Optimal Infringement Filter," 122 Colum. L. Rev. Sidebar 83 (2012) (with Sonia Katyal)
• The University as Constructed Cultural Commons
  Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg
  "The University as Constructed Cultural Commons," 30 Wash. U. J.L. & Pol’y 365 (2009) (with Michael J. Madison and Brett M. Frischmann)
  Abstract: This paper examines commons as socially constructed environments built via and alongside intellectual property rights systems. We sketch a theoretical framework for examining cultural commons across a broad variety of institutional and disciplinary contexts, and we apply that framework to the university and associated practices and institutions.
• The Unregulated Certification Mark(et)
  Jeanne C. Fromer
  "The Unregulated Certification Mark(et)," 69 Stanford Law Review 121 (2017)
• TheActavisInterference: Theory and Practice
  Aaron Edlin, C. Scott Hemphill, Herbert Hovenkamp, Carl Shapiro
  "The Actavis Interference: Theory and Practice," 67 Rutgers University Law Review 585 (2015) (with Aaron Edlin, Herbert Hovenkamp and Carl Shapiro)
  Abstract: This paper is an effort to assist courts and counsel in implementing the Actavis Inference. First, we evaluate a variety of fact patterns that have arisen in the district courts since Actavis, including payment that takes a form other than cash. For example, a branded drug maker may promise not to offer an authorized generic drug. As we explain, under Actavis, such agreements are especially likely to violate antitrust law. We also consider how much detail a plaintiff must offer in its initial complaint to comply with federal pleading requirements. Second, we demonstrate that the Actavis Inference fully applies when multiple generic firms, rather than just one, threaten to enter the market. Our economic model shows that the Actavis Inference becomes stronger and more important in the presence of multiple generic firms. Our analysis demonstrates that the contrary conclusions reached in a recent paper by Bruce Kobayashi, Joshua Wright, Douglas Ginsburg, and Joanna Tsai (“KWGT”) are incorrect, inconsistent with KWGT’s own analysis, or irrelevant to a faithful implementation of Actavis. Third, we clarify the reasons not to litigate patents in antitrust cases. Thanks to the Actavis Inference, a trial court need not determine patent validity or infringement in order to assess the legality of the settlement. The antitrust question depends upon the ex ante prospects in patent litigation and not ex post litigation of the patent by a patent court or by the antitrust court considering the settlement. Litigating the patent is thus of limited probative value and not dispositive regarding a potential antitrust violation.
• There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy
  Dotan Oliar, Christopher Jon Sprigman
  "There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy," 94 Va. L. Rev. 1787 (2008) (with Dotan Oliar)
  Abstract: In this paper, we analyze how stand-up comedians protect their jokes using a system of social norms. Intellectual property law has never protected comedians effectively against theft. Initially, jokes were virtually in the public domain, and comedians invested little in creating new ones. In the last half century, however, comedians have developed a system of IP norms. This system serves as a stand-in for formal law. It regulates issues such as authorship, ownership, transfer of rights, exceptions to informal ownership claims and the imposition of sanctions on norms violators. Under the norms system, the level of investment in original material has increased substantially. We detail these norms, which often diverge from copyright law's defaults. Our description is based on interviews with comedians, snippets of which we include throughout the paper. Our study has implications for intellectual property theory and policy. First, its suggests that the lack of legal protection for intellectual labor does not entail a market failure by necessity, as social norms may induce creativity. Second, it suggests that the rules governing a particular creative practice affect not only how much material is created, but also its kind. Third, we suggest that comedians' IP norms system emerged over the past half century as technological change increased the benefit of having property rights in jokes and concomitantly reduced the costs of enforcing those rights. Fourth, we note that stand-up's norms system recognizes only a limited set of forms of ownership and transfer. We suggest that the system's crude rights structure is driven by the fact that effective enforcement requires that ownership be clear to the community. Lastly, social norms offer a way to regulate creative practices that do not sit well within IP law's one-size-fits-all mold. They do so, moreover, without imposing on society the costs of disuniformity in the formal law, including legal complexity and industry-driven lobbying. Stand-up's norms system has both benefits and costs, which we detail in the paper. However, norms-based IP systems offer an alternative (or supplementary) cost/benefit bundle which in some cases may be superior to that of formal law alone. In stand-up's case, norms economize on enforcement costs and appear to maintain a healthy level of incentives to create alongside a greater diversity in the kinds of humor produced. A final assessment of stand-up's social norms system awaits further work. With what we currently know, we are cautiously optimistic.
• These key defects in the Constitution threaten democracy — because we ignored the warnings
  Christopher Jon Sprigman
  "These key defects in the Constitution threaten democracy — because we ignored the warnings," Raw Story, May 12, 2021
• Three Plans for Saving Voters From a Right-Wing Activist Supreme Court
  Christopher Jon Sprigman
  "Three Plans for Saving Voters From a Right-Wing Activist Supreme Court," Slate, Oct. 11, 2018
• Too Much of a Good Thing? A Governing Knowledge Commons Review of Abundance in Context
  Michael J. Madison, Brett M. Frischmann, Madelyn R. Sanfilippo, Katherine J. Strandburg
  "Too Much of a Good Thing? A Governing Knowledge Commons Review of Abundance in Context," 7 Frontiers Rsch. Metrics & Analytics art no. 959505 (2022) (with Michael J. Madison, Brett M. Frischmann and Madelyn R. Sanfilippo)
• Trade Secrecy and Innovation in Forensic Technology
  Eli Siems, Katherine J. Strandburg, Nicholas Vincent
  "Trade Secrecy and Innovation in Forensic Technology," 73 Hastings L.J. 773 (2022) (with Eli Siems and Nicholas Vincent)
• Trade Secrecy in Willy Wonka's Chocolate Factory
  Jeanne C. Fromer
  Trade Secrecy in Willy Wonka's Chocolate Factory, in The Law and Theory of Trade Secrecy: A Handbook of Contemporary Research 3 (Rochelle C. Dreyfuss and Katherine J. Strandburg, eds., Edward Elgar Publishing, 2011)
• Trade Secrets: How Well Should We Be Allowed To Hide Them? The Economic Espionage Act of 1996
  Rochelle C. Dreyfuss
  "Trade Secrets: How Well Should We Be Allowed To Hide Them? The Economic Espionage Act of 1996," 9 Fordham Intell. Prop. Media & Ent. L.J. 1 (1998)
  Abstract: In 1996, Congress enacted the Economic Espionage Act (EEA), 18 U.S.C. ?? 1831-39 (West 1998), which will become fully enforceable in 2001. The EEA is significant in several respects: it is the first comprehensive federal law addressing the problem of trade secrecy disclosure; it is one of the only laws providing criminal penalties for trade secrecy violations; and it is one of the few pieces of domestic intellectual property legislation that is explicitly extraterritorial in application. After describing the EEA in detail, this article analyzes its effects on innovation. The EEA was intended to plug "leaks" in the trade secrecy system, which Congress believed to be a threat to the vitality of the creative community. This article argues that this belief is, in some ways, misguided. All intellectual property regimes allow certain free uses of information. These leaks serve important functions. They enrich the public domain and create ways for new technologies to be improved upon and applied to new fields. They reduce deadweight losses. Although trade secrecy protection also has the positive effect of creating a way for inventors to capture returns on subpatentable and unpatented inventions, civil laws strike an appropriate balance between the access interests of the public and the proprietary needs of innovators. The EEA "ups the ante" with criminal penalties. Moreover, it punishes attempts and, as so far interpreted, can be applied even in the face of legal impossibility. It chills behavior that is, in fact, legal and even desirable. The article also notes other adverse consequences to over-enthusiastic application of the EEA: reduced mobility for workers in creative industries, differential treatment for identifiably ethnic employees, and difficulties in litigating cases based on foreign activity.
• Trademark Law: An Open-Access Casebook
  Barton Beebe
  Trademark Law: An Open-Access Casebook (Version 13, 2026 and earlier eds.)
• Trademark Ownfringement
  Jeanne C. Fromer
  "Trademark Ownfringement," 2023 Singapore Journal of Legal Studies 342
• Transparency of Regulatory Data Across the European Medicines Agency, Health Canada, and US Food and Drug Administration
  Alexander C. Egilman, Amy Kapczynski, Margaret E. McCarthy, Christopher J. Morten, Anita T. Luxkaranayagam et al.
  "Transparency of Regulatory Data Across the European Medicines Agency, Health Canada, and US Food and Drug Administration," 49 The Journal of Law, Medicine and Ethics 456 (2021) (with Alexander C. Egilman, Amy Kapczynski, Margaret E. McCarthy, Anita T. Luxkaranayagam et al.)
• Tribute to Judge Pauline Newman
  Rochelle C. Dreyfuss
  "Tribute to Judge Pauline Newman," 74 N.Y.U. Ann. Surv. Am. L. 7 (2018)
• Two Achievements of the Uruguay Round: Putting TRIPS and Dispute Settlement Together
  Rochelle C. Dreyfuss, Andreas F. Lowenfeld
  "Two Achievements of the Uruguay Round: Putting TRIPS and Dispute Settlement Together," 37 Va. J. Int’l L. 275 (1997) (with Andreas F. Lowenfeld)
• U.S Government Surveillance: Bad for Silicon Valley, Bad for Democracy Around the World
  Christopher Jon Sprigman, Jennifer Stisa Granick
  "U.S Government Surveillance: Bad for Silicon Valley, Bad for Democracy Around the World," Atlantic, June 28, 2013 (with Jennifer Stisa Granick)
• Unbalanced Interests: How the § 1201 Process Ate Itself
  Michael Weinberg
  "Unbalanced Interests: How the § 1201 Process Ate Itself," (April 2026)
• User Innovator Community Norms: At the Boundary Between Academic and Industry Research
  Katherine J. Strandburg
  "User Innovator Community Norms: At the Boundary Between Academic and Industry Research," 77 Fordham L. Rev. 2237 (2009)
  Abstract: The article presents the author's analysis on the research tools and materials called Pasteur's Quadrant use in basic science and applied overlap in the U.S. He explains that user innovation is in the form of collaborative communities, wherein, they share technical advances with other user. The article also presents various analyses of preference and social norms that highlight the scientific interest in the same research questions. In addition, it discusses the importance promotion of similar policies in different research tools by research funding agencies.
• Users as Innovators: Implications for Patent Doctrine
  Katherine J. Strandburg
  "Users as Innovators: Implications for Patent Doctrine," 79 U. Colo. L. Rev. 467 (2008)
  Abstract: User innovators range from commercial firms, which invent new production methods in expectation of competitive advantage, to individual hobbyists motivated entirely by their enjoyment of the inventive process. In this Article, I consider the implications for patent doctrine of the fact that many user innovators derive sufficient benefit simply from developing and using their inventions to motivate them to invest the effort necessary to invent them. Moreover, user innovators often benefit from 'freely revealing' their innovations to others. Trade secrecy and patenting are not central to motivating this inventive activity. This picture of user innovation contrasts sharply with the seller innovator picture which dominates patent policy. Because user innovators have different incentives, we should consider modifying patent doctrine so as to avoid the social costs of unnecessarily broad protection in contexts in which user innovation predominates. This Article lays out a framework for thinking about patent doctrine in the context of user innovation. It then explores one context in which user innovation plays a significant role - the development of inventions that can be used as research tools. Considering the specific incentives to invent, disclose, and disseminate research tools of different classes of research tool inventors leads to a proposal for a blanket exemption from infringement liability for research use. The Article also proposes an alternative, more modest, 'double-edged sword' exemption, which would excuse non-commercial research use of all patented inventions and all research use of inventions made by non-profit inventors.
• Valuing Intellectual Property: An Experiment
  Christopher Buccafusco, Christopher Jon Sprigman
  "Valuing Intellectual Property: An Experiment," 96 Cornell L. Rev. 1 (2010) (with Christopher Buccafusco)
  Abstract: n this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions. Perhaps the most important research in this field is that related to the “endowment effect” – the discovery that, contrary to economic predictions, people value the same object more when they own it than when they do not. To date, the endowment effect has been observed for a variety of goods including mugs, lottery tickets, and hunting permits. Our experiment establishes a substantial valuation asymmetry between authors of poems and potential purchasers of them. As we explain in detail in the article, we constructed a market for the poems that was modeled on a market for licensing IP. The observed differences in valuation indicate that IP licensing markets may be substantially less efficient that previously believed. Our results suggest that (1) the preferences of IP creators, owners, and purchasers are unstable and dependent on the initial distribution of property rights in creative works, and (2) large gaps arise between purchasers’ willingness to pay and sellers’ willingness to accept even though the poems are non-rival property and the contemplated alienation of the property is therefore only partial. Our findings suggest that private transactions in creative goods may face significant transaction costs arising from cognitive biases that drive the price that creators and owners of IP are likely to demand for transfers considerably higher than what buyers will, on average, be willing to pay. This does not mean, of course, that transactions in IP will not take place – we see such transactions happening out in the world every day. Our research suggests, however, that IP transactions may occur at a level that is significantly suboptimal, and that the baleful effect of cognitive and affective biases is likely to be more serious for transactions in works of relatively low commercial value, or for which no well-established custom or pattern helps to inform valuation. These results have considerable implications for the structuring of IP rights, IP formalities, IP licensing, and fair use.
• Virtual Reality, Appropriation, and Property Rights in Art: A Roundtable Discussion
  Rochelle C. Dreyfuss, Wendy J. Gordon
  "Virtual Reality, Appropriation, and Property Rights in Art: A Roundtable Discussion," 13 Cardozo Arts & Ent. L.J. 91 (1994) (with Wendy J. Gordon et al.)
• We Are Symbols and Inhabit Symbols, So Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity
  Rochelle C. Dreyfuss
  "We Are Symbols and Inhabit Symbols, So Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity," 20 Colum.-VLA J.L. & Arts 123 (1996)
• What Apple and Red Shoes Have in Common: Using Design to Block Competition
  Kal Raustiala, Christopher Jon Sprigman
  "What Apple and Red Shoes Have in Common: Using Design to Block Competition," Wired, Sept. 10, 2012 (with Kal Raustiala)
• What Can I Say?: Evaluating a Spoken Language Interface to Email
  Marilyn A. Walker, Jeanne C. Fromer, Giuseppe Di Fabbrizio, Craig Mestel, Don Hindle
  "What Can I Say?: Evaluating a Spoken Language Interface to Email," in Proceedings of CHI '98 582 (1998) (with Marilyn A. Walker, Giuseppe Di Fabbrizio, Craig Mestel & Don Hindle)
• What Judge Kavanaugh’s 'Originalism' Means for the Country
  Christopher Jon Sprigman
  "What Judge Kavanaugh’s 'Originalism' Means for the Country," JustSecurity, July 13, 2018
• What Role for Antitrust in Regulating Platforms?
  C. Scott Hemphill
  "What Role for Antitrust in Regulating Platforms?," Communications of the ACM, May 2020, at 36
• What Trademark Law Is Learning from the Right of Publicity
  Barton Beebe
  "What Trademark Law Is Learning from the Right of Publicity," 42 Colum. J.L. & Arts 389 (2019) (symposium contribution)
• What the Federal Circuit Can Learn from the Supreme Court -- and Vice Versa
  Rochelle C. Dreyfuss
  "What the Federal Circuit Can Learn from the Supreme Court -- and Vice Versa," 59 Am. U. L. Rev. 787 (2010)
  Abstract: Speech.
• What's In, and What's Out: How IP's Boundary Rules Shape Innovation
  Mark P. McKenna, Christopher Jon Sprigman
  "What's In, and What's Out: How IP's Boundary Rules Shape Innovation," 30 Harv. J.L. & Tech. 491 (2017) (with Mark P. McKenna)
  Abstract: Intellectual property law sorts subject matter into a variety of different regimes, each with different terms of protection and different rules of protectability, infringement, and defenses. For that sorting to be effective, IP needs principles to distinguish the subject matter of each system. This paper focuses on one of the most important aspects of border-drawing that our IP system undertakes — identifying “useful” subject matter. This aspect is critical because our IP system gives utility patent law pride of place and draws the boundaries of the other doctrines in large part to respect utility patent’s supremacy. Yet IP law’s sense of utility patent law’s domain is poorly theorized, and courts’ understanding of the boundaries of utility patent is mostly reductive and intuitive. While it’s clear that claimed inventions must be useful, courts inconsistently enforce a technological understanding of utility. That view of utility is normative rather than empirical. And its under-theorization has consequences for patent law itself — consequences that cascade across the other forms of IP because each of the other systems defers protection for these “useful” or “functional” features to utility patent. The problem is much more than a doctrinal one, since the sorting rules we develop cannot help but shape the nature and direction of innovation. IP incentives regarding software, for example, are necessarily shaped by the ways we sort some aspects into patent law and others into copyright. The choice of IP systems will also have significant competitive consequences. Different mixes of IP regimes (and of IP regimes with other types of regulatory exclusivity, etc.) will promote competition along different dimensions. A patent-heavy system will promote competition along utilitarian or conventionally “functional” characteristics, and systems that rely more on trademark/advertising are going to promote competition along other, more phenomenological, dimensions. Until we appreciate all of the forms of utility, and until we have a calculus for understanding their relative value, we can’t think coherently about which types of competition we want to promote or the costs of promoting that type of competition. Nor can we even think about how best to satisfy consumers’ actual demand, or how different IP regimes can actually help shape that demand. We are blind to a variety of considerations that actually affect consumer welfare.
• What's a Name Worth?: Experimental Tests of the Value of Attribution in Intellectual Property
  Christopher Jon Sprigman, Christopher Buccafusco, Zachary Burns
  "What's a Name Worth?: Experimental Tests of the Value of Attribution in Intellectual Property," 93 B.U. L. Rev. 1389 (2013) (with Christopher Buccafusco and Zachary Burns)
  Abstract: The article discusses experimental tests of the value of attribution in intellectual property (IP) in the U.S. as of July 2013, focusing on European IP laws, the legal rights of creators such as authors and painters, and American copyright and trademark laws. A call for the U.S. to adopt a default attribution right which is similar to those that are in effect in Europe is addressed. The Coase Theorem, which deals with economic efficiency and the costs associated with transactions, is mentioned.
• What’s Missing in Current and Former Officials’ Responses to DOJ Antitrust Whistleblower
  Christopher Jon Sprigman
  "What’s Missing in Current and Former Officials’ Responses to DOJ Antitrust Whistleblower," JustSecurity, July 16, 2020
• When Are IP Rights Necessary? Evidence from Innovation in IP's Negative Space
  Kal Raustiala, Christopher Jon Sprigman
  When Are IP Rights Necessary? Evidence from Innovation in IP's Negative Space, in 1 Research Handbook on the Economics of Intellectual Property Law: Theory 309 (Ben Depoorter et al. eds., Edward Elgar Publishing, 2019) (with Kal Raustiala)
• Who Deserves Those 4 Inches of Airplane Seat Space? An investigation into the economics of reclining
  Christopher Buccafusco, Christopher Jon Sprigman
  "Who Deserves Those 4 Inches of Airplane Seat Space? An investigation into the economics of reclining," Slate, Sept. 23, 2014 (with Christopher Buccafusco)
• Whose Tattoo is it Anyway?
  Kal Raustiala, Christopher Jon Sprigman
  "Whose Tattoo is it Anyway?," Los Angeles Times, Oct. 6, 2013 (with Kal Raustiala)
• Who’s Afraid of Section 1498? A Case for Government Patent Use in Pandemics and Other National Crises
  Christopher J. Morten, Charles Duan
  "Who’s Afraid of Section 1498? A Case for Government Patent Use in Pandemics and Other National Crises," 23 Yale Journal of Law & Technology 1 (2020) (with Charles Duan)
• Why Ripoffs Aren't All Bad
  Kal Raustiala, Christopher Jon Sprigman
  "Why Ripoffs Aren't All Bad," Daily Beast, Sept. 8, 2012 (with Kal Raustiala)
• Why Universities Have Started Arresting Student Protestors
  Christopher Jon Sprigman
  "Why Universities Have Started Arresting Student Protestors," New York Magazine- Intelligencer, May 23, 2024
• Why notice-and-takedown is a bit of copyright law worth saving
  Christopher Jon Sprigman, Mark Lemley
  "Why notice-and-takedown is a bit of copyright law worth saving," Los Angeles Times, June 21, 2016 (with Mark Lemley)
• With RBG’s Passing, Start Thinking About How to Rein in the Supreme Court
  Christopher Jon Sprigman
  "With RBG’s Passing, Start Thinking About How to Rein in the Supreme Court," JustSecurity, Sept. 20, 2020
• XOXO, Science
  Christopher J. Morten
  XOXO, Science, in 1996 219 (Matt Keegan and Svetlana Kitto, eds., Inventory Press, LLC/New York Consolidated, 2020)
• § 1498: A Guide to Government Patent Use
  Joseph Adamczyk, Adrienne Lewis, Shivani Morrison
  § 1498: A Guide to Government Patent Use — A Path to Licensing and Distributing Generic Drugs (NYU Technology Law & Policy Clinic white paper, co-published with PrEP4All, 2021) (supervised by Christopher J. Morten)