Christopher Buccafusco, Zachary C. Burns, Jeanne C. Fromer & Christopher Jon Sprigman
92 Texas L. Rev. 1921
Despite the fact that Copyright and Patent law are both meant to encourage the production of new creative works and inventions, they have separate thresholds of proof necessary to determine whether some new creation is sufficiently innovative to merit legal protection. In this article, Professors Buccafusco, Burns, Fromer, and Sprignman present their results from a series of experiments meant to determine what affect these different thresholds have on innovation and creativity. Specifically, they test whether the existence of a creativity threshold that conditions entry into a prize lottery on meeting certain performance standards affects how creative people are. Professors Buccafusco, Burns, Fromer, and Sprigman report four original experiments designed to measure the effects of different thresholds on creativity. They then discuss the implications of their findings for IP law and for creativity and innovation more generally.Further, they contribute to the growing debate of whether the copyright threshold should be raised to further stimulate creativity.
Christopher A. Cotropia & James Gibson
92 Texas L. Rev. 1981
One of the most important ways to measure the impact of copyright law is through empirical examination of actual copyright infringement cases. Yet scholars have universally overlooked this rich source of data. In this Article, Professors Cotropia and Gibson present a study that fills this gap through a comprehensive empirical analysis of copyright infringement litigation, examining the pleadings, motion, and dockets from more than nine hundred copyright lawsuits filed from 2005 through 2008. Using this data, Gibson and Cotropia examine a wide variety of copyright issues, such as the rate of settlements versus judgments; the incidence of litigation between major media companies, small firms, and individuals; the kinds of industries and works involved in litigation; the nature of the alleged infringement; the success rates of particular parties and claims; and the nature of remedies sought and awarded. They also analyze the data to identify ways in which copyright litigation differs from other civil suits and to show that certain plaintiff characteristics are more predictive of success.
Shari Seidman Diamond & David J. Franklyn
92 Texas L. Rev. 2029
Currently, when a plaintiff alleges trademark infringement or claims that false advertising is likely to confuse or deceive, proof of consumers’ reactions to an advertisement is largely presented through the use of systematic survey evidence. While these surveys can be effective tools, several scholars have questioned the role that these surveys actually play in trademark cases. Using a survey that investigated how attorneys in the United States and internationally use surveys in trademark litigation, Professors Diamond and Franklyn examine the role these surveys play in trademark litigation. In this article, Professors Diamond and Franklyn provide a description of the primary legal topics that appear in trademark and deceptive advertising surveys. They then review the recent studies that investigate the presence and influence of surveys in reported infringement decisions. They examine a sample of cases that did not include survey evidence to assess why surveys are or are not submitted in trademark cases. Finally, they offer an explanation of why surveys may be underrepresented in reported cases, and when surveys succeed and fail as persuasive evidence.
John M. Golden
92 Texas L. Rev. 2075
With the advent of the “Information Age,” most judges, lawmakers, and scholars tend to focus on high tech fields when discussing U.S. patent law. However, in this article, Professor Golden suggests that there may be substantial commonalities between the subject matter of present-day patents and the subject matter of patents typical of the Industrial Revolution. While performing an empirical study, Professor Golden found that many of the patents issued today cover relatively straighforward “machines and manufactures” and, further, that these simple patents play a disproportionate role in the granting of injunctive relief by U.S. district courts. These relatively mundane cases are surprising given the conventional view that patent litigation involves high stakes and costs. Professor Golden explores the implications of this discovery by first using a rational profit-maximizer model to confirm the commonly invoked bases for the view that patent litigation involves high-stakes. He then discusses the nature and contents of a patent-infringement injunction data set. Finally, Professor Golden explores potential explanations for the frequent mundanity of the subject matter targeted by injunctions in that data set.
David A. Hyman & David J. Franklyn
92 Texas L. Rev. 2117
Most Internet searches result in unpaid (organic or algorithmic) results, and paid ads. The specific ads that are displayed are dictated by the user’s search terms (“keywords”). In 2004, Google began offering trademarks for use as keywords on an unrestricted basis, followed in due course by other search engines. Once that happened, any entity (including sellers of competing products) could have their ads appear in response to a search for the trademarked product. Trademark owners responded by filing more than 100 lawsuits in the United States and Europe, making the dispute the hottest controversy in the history of trademark law. Litigation has focused on purchases by competitors—giving the impression that competitors account for a large portion of such purchases. In this article, Professors Hyman and Franklyn present data showing that competitors account for a relatively small percentage of keyword purchases, and many trademark owners purchase their own marks as keywords. They also find a high degree of fluctuation in the number of paid ads and the domain names to which those ads are linked. They conclude that the risk of widespread abuse is low. Trademark owners’ objections seem to have more to do with objections to free riding than with the zone of interests currently protected by U.S. trademark law.
Ronald J. Mann
92 Texas L. Rev. 2149
Many outspoken critics of the current patent system have argued that the decline in the quality of patents could undermine the competitiveness of the national economy. In recent years, these arguments have begun to focus attention on the role of examiners in the patent process. If examiners differ from each other in how they approach applications, then they introduce arbitrariness into the process. In this article, Professor Mann offers a deeper look into this idiosyncrasy among patent examiners. Using data collected by the National Bureau of Economic Research and by the Patent Office itself, Professor Mann is able to come to three important conclusions. First, that past scholarly articles have overemphasized the importance of an examiner’s experience. Second, that the effects of tenure substantially affect the quality of the patents that an examiner produces. Finally, that education affects the work of examiners in important ways.
Erin O’Hara O’Connor & Christopher R. Drahozal
92 Texas L. Rev. 2177
Recent studies tend to show that parties to innovative contracts and those operating in innovative environments rely more heavily on lawyers and contract documents than parties in other non-innovative environments. Despite this reliance, many of these parties still express a strong commitment against resolving disputes through the use of the court system. However, a significant number of contracting parties continue to demand that their right to resolve particular claims through the court system be preserved in their innovative contracts. In this article, Professors O’Connor and Drahozal explore party use of contract terms to express a preference for courts for the enforcement of rights surrounding innovation. They then explain the advantages of using courts over arbitration in protecting innovation. They describe the empirical findings that prove private parties demand courts for the protection of their innovation. The article concludes by exploring the implications of these findings for the applicable rules applied by courts.
Dotan Oliar, Nathaniel Pattison & K. Ross Powell
92 Texas L. Rev. 2211
The registration records at the U.S. Copyright Office provide a valuable lens on the use and performance of the copyright system, but have not yet been studied systematically. Using an original data set containing all 2.3 million registrations from 2008 to 2012, Professors Oliar, Pattison, and Powell provide a snapshot of current patterns of registration. In this article, they describe who is registering what, where, when, and why. Their main findings include the types of work being registered, how the registrations of individuals and firms differ, when works are being registered relative to their date of creation and date of publication, the age distribution of authors in different creative fields, and the geographic distribution and concentration of registration claimants.
The registration data collected and reported are superior to those relied upon in prior literature and should therefore prove useful to lawmakers and scholars wishing to measure the effect of copyright law on creativity or otherwise reform the copyright law of the United States.
Matthew R. Christiansen & William N. Eskridge, Jr.
92 Texas L. Rev. 1317
Over the past years, many law professors and other academics have undertaken the daunting task of coding the number of congressional overrides of Supreme Court decisions concerning statutory interpretation. In this article, Professors Christiansen and Eskridge present the results from their most recent empirical study identifying these overrides. Using improved methodologies and a better understanding of the inner workings of Congress, Christiansen and Eskridge have worked to identify every statutory override that has been passed in Congress since 1967. Based on this data, they analyze the relationship between the Supreme Court and Congress while also identifying several patterns inherent in the data. Christiansen and Eskridge identify several factors that increase the chance that Congress will override a decision of the Supreme Court. Finally, they consider several normative issues and present suggestions for the institutions that create and elaborate upon policy in the United States.
92 Texas L. Rev. 1543
Are minimum wage laws just? Existing legal academic debate implies that they are not. Drawing on neoclassical labor-market models, various legal scholars have argued that minimum wage laws increase unemployment and cause other inefficiencies, and therefore that legal scholars have argued that direct transfers to the working poor are a superior means of ensuring distributive justice. Accepting for the sake of argument that minimum wage laws have such economic effects, this Article nevertheless defends them on grounds of justice. It builds on well-worn arguments that a just state will not just redistribute resources but will also enable citizens to relate to one another as equals. This ideal of “social equality” is most commonly associated with republican and communitarian theories of justice, but it is also central to major strands of egalitarian liberalism. Professor Rogers argues that minimum wage laws advance social equality, and do so better than direct transfers in several ways. He states that they increase workers’ wages, which are a primary measure of the social value of work; they alter workplace power relationships by giving workers rights vis-a-vis employers; and they require employers and consumers to internalize costs of higher wages rather than mediating all distribution through the state. Professor Rogers concludes that minimum wage laws help ensure decent work, work that enhances rather than undermines workers’ self-respect. Reduced demand for extremely low-wage labor is a cost worth bearing to ensure decent work and may even be an affirmative good.