Tuesday, January 7, 2014
Jennifer E. Rothman, Loyola Law School, Los Angeles, has published E-Sports as a Prism for the Role of Evolving Technology in Intellectual Property at 161 U. Pa. L. Rev. Online 317 (2013). Here is the abstract.
This essay challenges the preference for legislating in the face of new technology. Responding to Dan Burk’s recent article, Owning E-Sports: Proprietary Rights in Professional Computer Gaming, this essay considers how technology influences intellectual property law, both in the context of professional video gaming, e-sports, and beyond. The essay provides two major insights. First, that changing technology and new industries often can reveal misguided approaches taken by the common law in intellectual property cases. The concept of “persona” in right of publicity law and the “initial interest confusion” doctrine in trademark law are two prime examples of this phenomenon. Second, that consideration of underlying principles and policies should be a preferred starting point for addressing issues raised by new technology through current legal mechanisms. For this point, the essay focuses on copyright law and the failings of recent technology-specific legislation. The essay advocates that technology-specific legislation should be a last resort, only to be undertaken once some degree of technological stabilization has been reached and, even then, with broad principles – rather than industry-specific considerations — in mind. The essay was presented as part of the University of Pennsylvania’s Symposium on The Evolving Internet.Download the essay from SSRN at the link.