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November 27, 2005

New Law and Technology Papers from Bepress

Announcing new papers in Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology), part of the bepress Legal Repository found at
http://law.bepress.com/repository

PUBLISHER: The Berkeley Electronic Press

EDITORS:      
Peter S. Menell - Professor of Law, UC Berkeley Boalt Hall School of Law and Director, BCLT
Robert P. Merges - Wilson Sonsini Professor of Law, UC Berkeley Boalt Hall School of Law and Director, BCLT
Pamela Samuelson - Professor of Information Management & Law, UC Berkeley SIMS & Boalt Hall School of Law and Director, BCLT
Howard A. Shelanski - Professor of Law, UC Berkeley Boalt Hall School of Law and Director, BCLT

TABLE OF CONTENTS:
Thomas Nachbar "Monopoly, Mercantilism, and Intellectual Property".
http://repositories.cdlib.org/bclt/lts/9

Kenneth Himma "Justifying Intellectual Property Protection: Why the Interests of Content-Creators Usually Wins over Everyone Else's".
http://repositories.cdlib.org/bclt/lts/13

Kenneth Himma "Information and Intellectual Property Protection: Evaluating the Claim That Information Should Be Free".
http://repositories.cdlib.org/bclt/lts/12

Kenneth Himma "Abundance, Rights, and Interests: Thinking about the Legitimacy of Intellectual Property".
http://repositories.cdlib.org/bclt/lts/11

Pam Samuelson "The Story of Baker v. Selden".
http://repositories.cdlib.org/bclt/lts/10

Read the abstracts in the continuation.

ABSTRACTS:

Thomas Nachbar, "Monopoly, Mercantilism, and Intellectual Property" (May 6, 2005). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 9.
http://repositories.cdlib.org/bclt/lts/9

ABSTRACT:
Within intellectual property, Darcy v. Allen and the Statute of Monopolies are frequently, almost reflexively, invoked as establishing a baseline norm of economic freedom from which governments depart when they grant exclusive rights to deal in any trade or article of commerce. Against this free-market backdrop, all such grants are suspect, and only those that are justified by reference to their originality or utility are valid. Rejecting the dominant view of Darcy and the Statute of Monopolies, the paper provides a more detailed political and legislative history of both the compromise leading to Darcy and the adoption of the Statute of Monopolies than any to date, and consequently demonstrates that their true importance lies in their political, not economic, content. This reinterpretation suggests that both events are best viewed through the lens of political accountability, not economic doctrine. The paper concludes by considering the ramifications that this new understanding has for modern debates about intellectual property.

This paper is forthcoming in the Virginia Law Review.

Kenneth Himma, "Justifying Intellectual Property Protection: Why the Interests of Content-Creators Usually Wins over Everyone Else's" (November 15, 2005). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 13.
http://repositories.cdlib.org/bclt/lts/13

ABSTRACT:
I attempt to show that the law should, as a matter of political morality, provide limited protection of intellectual property interests. To this end, I argue that the issue of whether the law ought to coercively restrict liberty depends on an assessment of all the relevant competing interests. Further, I argue that the interests of content-creators in controlling the disposition of the content they create outweighs the interests of other persons in using that content in most, but not all, cases. I conclude that, in these cases, morality protects the interests of content-creators, but not the interests of other persons and hence would justify limited legal protection of the former interests.

Forthcoming in Emma Rooksby (ed.), Information Technology and Social Justice, Idea Group, 2006.

Kenneth Himma, "Information and Intellectual Property Protection: Evaluating the Claim That Information Should Be Free" (August 12, 2005). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 12.
http://repositories.cdlib.org/bclt/lts/12

ABSTRACT:
The claim "information should be free" (hereinafter ISBF) has become a rallying cry for those who believe intellectual property rights are illegitimately protected by the state. In this essay, I will attempt to (1) determine what ISBF means (which will require determining what the concept-term "information" means as used in ISBF); (2) evaluate what kind of support there is for ISBF; (3) determine whether ISBF conforms to ordinary views about the propriety of certain restrictions on the free flow of information; and (4) determine whether ISBF provides good reason for thinking that legal protection of intellectual property rights is illegitimate. I will argue that the most charitable interpretation of ISBF lacks adequate support in mainstream moral views and thus cannot ground a wholesale challenge to the legitimacy of intellectual property rights.

Kenneth Himma, "Abundance, Rights, and Interests: Thinking about the Legitimacy of Intellectual Property" (August 12, 2005). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 11.
http://repositories.cdlib.org/bclt/lts/11

ABSTRACT:
It is sometimes argued that legal protection of intellectual property is illegitimate because intellectual objects are not subject to conditions of scarcity and can simultaneously be consumed by everyone. I argue that this line of argument is problematic. By itself, the claim that intellectual objects are unlimited and can be consumed by everyone simultaneously does not imply that we have some sort of moral claim to intellectual objects that is inconsistent with the legal protection of intellectual property. While this claim is certainly a reason against thinking that protection of intellectual property is morally justified, it falls well short of conclusive because it does not contain any information about what respective interests the creator and third parties have in intellectual objects. I conclude that a proper analysis of the legitimacy of intellectual property rights must take into account the morally protected interests that content-creators have both in the expenditure of their limited resources (e.g., time, energy, and intellectual labor) and in the value that the expenditures of such efforts brings into the world.

Pam Samuelson, "The Story of Baker v. Selden" (June 15, 2005). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 10.
http://repositories.cdlib.org/bclt/lts/10

ABSTRACT:
The Story of Baker v. Selden: Sharpening the Distinction between Authorship and Invention
To be published in Jane C. Ginsburg and Rochelle C. Dreyfuss, Intellectual Property Stories (forthcoming Foundation Press 2005)

This Story grows out of a study of the Supreme Court Record and other historical materials about the well-known 1880 copyright case of Baker v. Selden. Among the surprises the Story reveals are that Selden was not, as some have surmised, the author of a treatise on bookkeeping, nor was he the inventor of the now universally used T-account system of bookkeeping. Selden's books are better described as minor variants on one another, consisting of 20-some pages of bookkeeping forms with sample entries, a short preface, and an introduction. Most of the 650 words of text in the last book puff the merits of his system rather than explaining how to use it. Baker, not Selden, is mentioned in works on the history of bookkeeping, and Baker's books on bookkeeping (but not Selden's) are still available in various public and university libraries. Though burdened with thousands of dollars of debt, Selden's widow hired a prominent intellectual property lawyer to represent her in the lawsuit against Baker which charged him with pirating the Selden system. She believed she was owed damages (in today's dollars) of a quarter-million dollars a year from Baker and his customers. Baker probably lost at the trial court level because he hired an inexperienced young lawyer; Baker won before the Supreme Court in part because he was represented by a team of supple heavy-hitters.
The most important lesson of this Story concerns the legal principle the Court was trying to promulgate. Although Baker v. Selden is widely cited as the genesis of the "idea/expression" distinction in copyright law, the Story shows that this distinction predated Baker. Nor is Baker the genesis of the "merger" doctrine (which holds that if an idea can only be expressed in one or a small number of ways, copyright law will not protect the expression because it has "merged" with the idea). The main objective of the Supreme Court's decision was to sharpen the distinction between authorship and invention. The complaint spoke of Selden as the author and inventor of several books and of a bookkeeping system. His lawyer kept speaking about its novelty in the state of the art. Selden's widow claimed exclusive rights not only to stop Baker from publishing competing books, but also to collect damages from all of Baker's customers for their use of the infringing system. That Selden had sought, but apparently not obtained, a patent on his bookkeeping system seems to have affected the Court.

To clarify the proper roles of patent and copyright in protecting the fruits of intellectual labor, the Baker opinion introduced a new framework for analyzing copyright claims. It directed courts to consider whether the defendant had copied the author's description, explanation, illustration, or depiction of a useful art (such as a bookkeeping system) or ideas, or had only copied the useful art or ideas themselves. In the absence of a patent, the useful art depicted in a work, along with its ideas, could be used and copied by anyone, even in directly competing works. Any necessary incidents to implementing the art (e.g., blank forms illustrating use of the system) could likewise be used and copied by second comers without fear of copyright liability.
The Baker opinion's rich analysis of the roles of copyright and patent in protecting intellectual creations has, over the past 125 years, spawned at least eight significant copyright doctrines, including four codified in the Copyright Act of 1976, as well as a few enduring controversies.

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