Prof. Michael J. Madison: IP Seminar (Fall 2007)

Prof. Michael J. Madison
Associate Dean for Research
Associate Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA 15260
+1 412 648 7855 (ph)
+1 412 648 2648 (fax)
michael.j.madison [at] gmail [dot] com

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Foundations of Intellectual Property Law Seminar (Fall 2007)
This is the course homepage.
[Go to the Course Information page] [Download the Syllabus]

Reading and Class Assignments

The readings for the seminar will consist of the following law review articles, in their full, unedited glory. 

All of the articles listed below are available via Westlaw.  I have created a page on TWEN, the online Westlaw classroom support service, that automatically links to each of them.  You are not required to use TWEN, however, and you are welcome to obtain access to the materials in hard copy form, or via Lexis, FindLaw, or any other database provider of your choosing. 

There is no reading assignment for the first meeting of the seminar.  Come to class with a proposed topic for a seminar paper, and be prepared to discuss the topic and how it relates to a seminar on the theoretical foundations of intellectual property law.  At the first meeting, among other things we will discuss whether the work of the seminar will consist of traditional seminar papers, or the series of shorter research memos described below.

Each week's seminar meeting will focus on one of the following articles.  We will read and discuss them in the order listed here.

Each pair of articles is followed by short paper topic.  If the seminar elects to write short papers rather than long seminar papers, then the short paper described by that topic is due not later than the following class meeting, that is, one week after the meeting that discusses the second article.  For example, the paper discussing the first two articles is due not later than the meeting where the third article is discussed.

One: Justin Hughes, The Personality Interests of Authors and Inventors in Intellectual Property, 16 Cardozo Arts & Ent. L.J. 81 (1998)

  • Discussion topics:  Not all authors or creators are alike; if the law should recognize personality interests, whose interests should be recognized?  Is a creative work in any way infused with an author's "personality"?

Two: Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. 102 Yale L.J. 1533 (1993)

  • Discussion topics:  Should the First Amendment operate as an independent limit on the scope or enforcement of intellectual property rights?  If so, why?  Or can and should free speech interests be adequately accommodated within existing doctrines of IP?

Short (5-6 pp.) paper topic:  Use the arguments developed in the articles by Professor Hughes and Professor Gordon to argue for or against a broad attribution right in American copyright law.  If such a right should be recognized, what limitations or defenses, if any, should be built into it?

Three: William M. Landes and Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Leg. Stud. 325 (1989) (we will focus on the sections of this article that are excerpted at http://cyber.law.harvard.edu/IPCoop/89land1.html; a complete copy of the article is on Course Reserve in the Law Library and can be accessed electronically in the JSTOR database, via the Law Library homepage and a University of Pittsburgh IP address)

  • Discussion topics:  What features of modern copyright law are consistent with the Landes and Posner model?  What features are not?  Is the model wrong or incomplete, or should the law be changed?

Four: Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 Tex. L. Rev. 989 (1997)

  • Discussion topics:  What features of modern copyright law are consistent with Professor Lemley's analysis?  What features are not?  Is the analysis wrong or incomplete, or should the law be changed?

Short (5-6 pp.) paper topic:  Use the arguments developed in these two articles to evaluate whether Google should be held liable as a copyright infringer in the context of the Google Book Search program.

Five: John F. Duffy, Rethinking the Prospect Theory of Patents, 71 U. Chi. L. Rev. 439 (2003)

  • Discussion topics:  When is patent law like land law?  When should it be like land law?  When is it not like land law?  When should it not be like land law?

Six: Robert P. Merges & Richard R. Nelson, On the Complex Economics of Patent Scope, 90 Colum. L. Rev. 839 (1990)

  • Discussion topics:  Assume that there is no patent system in place today, but assume also that Congress is considering adopting a patent statute.  Should it do so?  Why?  Why not?

Short (5-6 pp.) paper topic:  Should "research tools" be patentable?  What is the right scope of "research tool" patents, if they exist?  Use the arguments explored in these two articles.

Seven: Rebecca S. Eisenberg, Patents and the Progress of Science: Exclusive Rights and Experimental Use, 56 U. Chi. L. Rev. 1017 (1989)

  • Discussion topics:  If we assume the scientists -- members of a certain "art" -- organize themselves and behave in certain disciplinary ways, why should patent law care?  What is the right relationship between industry or customary practice, on the one hand, and legal rules, on the other hand?  Should law adopt those practices, or should it adopt rules that encourage different behavior?

Eight: Julie E. Cohen, Creativity and Culture in Copyright Theory, 40 U.C. Davis L. Rev. 1151 (2007)

  • Discussion topics:  Is cultural theory superior to economic theory as a normative framework for intellectual property analysis?  Why?  Why not?

    •

Short (5-6 pp.) paper topic:  Describe and analyze an example of how "an examination of creative practice informed by social and cultural theory can indicate the appropriate content of pragmatic compromises designed to foster cultural mobility," to use Professor Cohen's phrase.  Is Professor Eisenberg's examination of the experimental use doctrine in patent law one such example?  Does your example suggest that Professor Cohen's argument can be implemented pragmatically?  Or that the argument is too complex to be helpful?  Neither?  Both?

Nine:  Mark P. McKenna, The Normative Foundations of Trademark Law, 82 Notre Dame L. Rev. 1839 (2007)

  • Discussion topics:  Is Professor McKenna persuasive in his claim that trademark law is less consumer-oriented than modern law conventionally understands?

Ten: Barton Beebe, Search and Persuasion in Trademark Law, 103 Mich. L. Rev. 2020 (2005)

  • Discussion topics:  Professor Beebe likewise reinterprets the modern trademark focus on consumer associations; among other things he appears to prescribe a stronger role for dilution theory.  Do you agree?  Should "likelihood of confusion" analysis be superseded by "dilution" analysis as the default mode of trademark law?

Eleven:  James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007)

Short (8-10 pp.) paper topic:  Prof. Beebe's Essay describes some fundamental conflicts in the consumer-centric view of trademark law.  Does Prof. MeKenna's article offer a view of trademark doctrine that resolves (or successfully avoids) those conflicts?  Do the two pieces, considered jointly, offer a view of trademark law that is ultimately helpful -- or not?

Last updated: November 12, 2007