THE USEFULNESS PROBLEM IN INTELLECTUAL PROPERTY LAW
This article seeks to reformulate various rules that govern copyright and trademark protection for functional design elements. It argues that analysis under existing precedents mistakenly focuses on the role a feature plays in the putative rights-holder’s creation, rather than in the alleged infringer’s. The article goes on to develop a general doctrine of “functional fair use” and advocates its adoption.
INTELLECTUAL PROPERTY AND THE MYTH OF NON-RIVALRY
This paper challenges conventional assumptions about IP centered on the idea that intellectual goods are non-rivalrous by highlighting the significance of conflicts between those who want to use an intellectual good and those who object to that use.
INTELLECTUAL POSSESSION (with Dotan Oliar)
This paper analyzes the timing of the award of intellectual property rights by drawing on insights from the treatment of first possession rules in traditional property settings.
HOHFELD AND THE THIRD MAN
This paper argues that Wesley Hohfeld’s influential rights classification scheme fails to account for ways in which certain legal relationships affect more than two people and that this blindspot can distort understandings of property.