William and Mary Law Review

Professional publication covering law.

Articles from Vol. 51, No. 2, November

Administering Fair Use
ABSTRACT Fair use is not working. As written by Congress and applied by the courts, the fair use law fails to give individuals sufficiently clear guidance to determine in advance whether their uses of copyrighted works are fair and therefore noninfringing....
An Alternate Approach to Channeling?
ABSTRACT Intellectual property law has developed a variety of doctrines to police the boundaries between various forms of protection. Courts and scholars alike overwhelmingly conceive of these doctrines in terms of the nature of the objects of protection....
A New Deal for End Users? Lessons from a French Innovation in the Regulation of Interoperability
ABSTRACT In 2007, France created the Regulatory Authority for Technical Measures (l'Autorite de Regulation des Measures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed...
Developing a Private International Intellectual Property Law: The Demise of Territoriality?
TABLE OF CONTENTS INTRODUCTION I. THE PRIVATE INTERNATIONAL LAW OF INTELLECTUAL PROPERTY A. Public Private International Intellectual Property Law B. Taking a Broader View C. Core Principles 1. Choice of Law: Scope...
Distinguishing Lost Profits from Reasonable Royalties
INTRODUCTION Patent damages are designed to compensate patentees for their losses, not punish accused infringers or require them to disgorge their profits. (1) The governing statute provides for "damages adequate to compensate for the infringement,...
Economies of Desire: Fair Use and Marketplace Assumptions
ABSTRACT At the moment that "incentives" for creation meet "preferences" for the same, the economic account of copyright loses its explanatory power. This piece explores the ways in which the desire to create can be excessive, beyond rationality,...
How to Write a Life: Some Thoughts on Fixation and the Copyright/privacy Divide
TABLE OF CONTENTS INTRODUCTION I. THE COMPETING INTERESTS: COPYRIGHT LAW AND PRIVACY LAW A. The Creator as Author: Copyright Law's Incentives B. The Subject as Author: Privacy and Related Torts II. FIXATION AND ITS EFFECTS A. History ...
Introduction: Boundaries of Intellectual Property Symposium
You have in your hands thirteen papers on intellectual property, (1) written by some of the most outstanding and widely recognized scholars working in the area today. What a collection of probing analyses, on topics ranging from the morality of patents,...
Patent Examination Priorities
TABLE OF CONTENTS INTRODUCTION I. A MODEL OF PATENT EXAMINATION ERRORS A. Introduction to the Model B. The Source of Errors C. The Social Cost of Examination Errors II. STRATEGIC PROSECUTION III. INCENTIVES AND MONITORING IV. EFFORT COST V....
Rules and Standards on the Forefront of Patentability
TABLE OF CONTENTS INTRODUCTION I. CHALLENGES IN DEFINING THE LIMITS OF PATENTABILITY II. THE HISTORY OF FAILED PATENTABILITY RULES A. The Unpatentability of Changes in Form and Proportions B. The Unpatentability of Plants and Animals ...
Spillovers Theory and Its Conceptual Boundaries
INTRODUCTION Wendy Gordon has noted that "most of IP law is concerned with internalizing positive externalities." (1) In two recent articles, Spillovers (2) (with Mark Lemley) and Evaluating the Demsetzian Trend in Copyright Law, (3) I challenge...
Statutory Damages in Copyright Law: A Remedy in Need of Reform
TABLE OF CONTENTS INTRODUCTION I. THE EVOLUTION OF STATUTORY DAMAGES IN U.S. COPYRIGHT LAW A. Statutory Damages Under the 1909 Act B. Statutory Damages Under the 1976 Act 1. Respects in Which Congress Limited Statutory ...
The New Invention Creation Activity Boundary in Patent Law
ABSTRACT This Essay identifies a new boundary in patent law--illegal or immoral invention creation activity--and explores the possible challenges and opportunities it may facilitate. The boundary currently is neither robust nor extensive, and whether...
Trademarks and the Boundaries of the Firm
ABSTRACT Coase's theory of the firm has become a familiar tool to analyze the structure and organization of businesses. Such analyses have increasingly focused on property-based theories of the firm, including intellectual property. In previous...

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