Inspired by Marginal Revolution-style minimalism & eclecticism, here are some pieces I read through today and enjoyed:
2. Mark Lemley, Should a Licensing Market Require Licensing? The central idea:
Copyright owners have persuaded the courts that they should win cases in which a defendant’s use doesn’t injure their market directly, but in which they could and would have charged a fee to grant permission for the use. Even assuming courts are right to have accepted this argument, it is unreasonable to then give the copyright owner not just the fee they would have charged but the power to prevent the use altogether or to collect damages far in excess of that fee. Licensing market cases are excellent choices for separating compensation and control, giving copyright owners the right to get paid without giving them control over transformative uses.
Lemley has some terrific examples in the paper, including a case where someone may have infringed Hitler’s copyright in Mein Kampf in order to distribute the original version when Hitler was “selling an authorized translation that toned down his anti-Semitism.” Well, if Grokster can invent an inducement offense in copyright, perhaps courts could devise a necessity defense in a case like that.
3. Jeffrey Lynch Harrison: Status Signaling and Trademark: Tattoos for the Privileged. The argument:
Trademarks are [sometimes] used as a means for individuals to communicate information about themselves to others. Very typically, the signaling relates to status or wealth. Courts have held that this function of trademarks is something the law should advance. This Article makes the case that there appear to be little or no economic or moral bases for a public policy of supporting the efforts of the privileged to advertise, signal, or communicate their status to others.
Sounds like a good piece of the foundation for an “egalitarian trademark” theory.