• Archive for March, 2010

    New Professor Ed Lee Reviews Lessig’s Book

    by  • March 30, 2010 • Scholarship • 0 Comments

    For those who haven't heard, Ed Lee, from Ohio State Law School, will be joining Chicago-Kent in the Fall as a full-time faculty member.  He will also serve as director of the Intellectual Property Program.  

    Professor Lee's most recent piece is a review of Larry Lessig's new IP-themed book Remix.  Here's Ed's abstract:

    This book review analyzes – and remixes – Lawrence Lessig's last copyright-related book, "Remix." It takes the central ideas, including some quotations, from Remix, and transforms them with some new examples and commentary of my own. Part I summarizes and critiques Lessig’s discussion of (1) the remix and read-write (RW) culture, and (2) its relationship to the sharing, commercial, and hybrid economies. Part II discusses some of Lessig’s reform proposals for our copyright system to foster a remix culture.

    Download the paper here

    Professor Buccafusco posts “Valuing Intellectual Property: An Experiment”

    by  • March 15, 2010 • Scholarship • 1 Comment

    Professor Buccafusco has just added a new paper to ssrn:  Valuing Intellectual Property:  An Experiment.  The paper, co-authored with Christopher Sprigman of the University of Virginia, will be published in the Cornell Law Review in November.  Here's the abstract:

    In 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.

    The Northern District of Illinois: Where Leprechauns Meet Marking Trolls

    by  • March 11, 2010 • Faculty Commentary • 0 Comments

    By Jason Du Mont, LivSafe Intellectual Property Law Fellow,

    In Chicago the streets and billboards are once again flooded with images of four-leaf clovers, bar celebrations, and parades.  Much like February 2nd is to Punxsutawney Phil, St. Patrick’s Day marks the first day of the year that many have come out of their homes since winter.  To celebrate, we dye the river – and even our beer – green this time of year.  Indeed, few cities can match Chicago’s passion for St. Patrick’s Day.  So why is the Northern District of Illinois talking about “marking trolls” instead of leprechauns this March?

    While it’s not entirely clear why patent attorneys have such a penchant for this mythical creature, trolls are not new to patent law.  In fact, the “patent troll” moniker has been pejoratively used since the 90’s to describe entities that enforce their patents to recover large settlements and royalty fees, yet have no intention of utilizing or producing these technologies.  (See Humorous examples of patent trolls: 1, 2, 3, 4)  The “marking troll,” however, is a new breed of troll that was recently spawned by a Federal Circuit decision in December. 


    The Public vs. the Supreme Court: A Comment on the Citizens United Case

    by  • March 3, 2010 • Faculty Commentary • 7 Comments

    The following is the text of remarks that Professor Heyman made at a forum on Citizens United v. Federal Election Commission which was held at Chicago-Kent on February 24, 2010, and which was co-sponsored by the Student Bar Association and the Chicago-Kent chapters of the American Constitution Society and the Federalist Society. Professor Sheldon Nahmod also spoke at the forum; his discussion of the case can be found here and here.

    By Steven Heyman

    In the Citizens United case, the Supreme Court was sharply divided, with five conservative Justices in the majority and four liberals in dissent. The immediate political reaction also followed predictable lines. President Obama and the congressional Democrats denounced the decision as a fundamental blow to our democracy. On the other hand, Republicans like Mitch McConnell, the Senate minority leader, hailed the decision as a victory for freedom of speech.

    All of this might lead one to believe that the issue in Citizens United is just one more area where the country is deeply divided along ideological lines, just as it is on issues like health care reform or government spending or abortion. But there are some indications that this isn’t true. For example, last week the Washington Post and ABC News released a poll that showed that four out of five Americans disagree with the Court’s decision in this case. Still more remarkably, the poll shows very little difference among political groups: 85 percent of Democrats oppose the ruling, but so do 81 percent of Independents and 76 percent of Republicans. And the poll also suggests that this is an issue that people feel deeply about: 65 percent of respondents say that they are strongly opposed to the decision, and 72 percent say they would support congressional action to reinstate the limits on corporate advertising in elections.

    So the question that arises is this: What led the Supreme Court to make a decision that is so broadly rejected by the public?