Engelberg Center | Faculty Research

BARTON BEEBE John M. Desmarais Professor of Intellectual Property Law

Current Projects:

Intellectual Property Law and the Problem of Aesthetic Progress, an article discussing how intellectual property law struggles to conceptualize and promote aesthetic progress.

The Suppressed Origins of Trademark Dilution Law, an article showing how U.S. trademark antidilution law originated in German antidilution law in the early-twentieth century. The article reveals how the U.S. trademark lawyer and scholar Frank Schechter deliberately misquoted German case law to suppress the misappropriation basis of antidilution law. Schechter’s conduct helps to explain fundamental differences to this day between European and U.S. trademark antidilution law.

Trademark Empirical Data Workshop, a two-day workshop co-sponsored by the Engelberg Center and the USPTO to occur at the USPTO in September 2013 on the empirical study of trademark registration data and other trademark-related data.

Empirical Study of Substantial Similarity in Courts, an empirical study of all district and appellate court decisions on substantial similarity in copyright law to assess the effect of various doctrinal choices on case outcomes and understand the implications of the Second and Ninth Circuits’ different frameworks for analyzing copyright infringement. This project is in collaboration with Jeanne Fromer (NYU School of Law), Neil Netanel (UCLA School of Law) and Matthew Sag (Loyola University School of Law).

Jeanne Fromer Professor of Law

Current Projects:

An Information Theory of Copyright Law, an article that utilizes information theory, a branch of applied mathematics that quantifies information and suggests optimal ways of transmitting the information, to answer important questions related to what sorts of works copyright law seeks to encourage. The project explores many of the central doctrines of copyright law and proposes that copyright law seeks to preserve certain forms of information, sometimes in redundant ways and at other times in quite sparse ways. It further considers whether it is better to have distinct creators communicating these valuable types of information or to unify particular communications of information in a single creator.

The State(s) of Copyright Law, an article showing that there is an ignored actor in the development of copyright law: the states. The article includes a review of all post-1976 state court decisions and current state laws that mention copyright to show how state courts are influencing copyright policy, despite Congress’s 1976 copyright revision giving states far less say in copyright matters. The article discusses the costs and benefits, as well as the legality, of state intervention in copyright law.

Empirical Study of Substantial Similarity in Courts, an empirical study of all district and appellate court decisions on substantial similarity in copyright law to assess the effect of various doctrinal choices on case outcomes and understand the implications of the Second and Ninth Circuits’ different frameworks for analyzing copyright infringement. This project is in collaboration with Barton Beebe (NYU School of Law), Neil Netanel (UCLA School of Law) and Matthew Sag (Loyola University School of Law).

Experimental Studies of Incentives in Intellectual Property, a series of experiments testing the differential effects of rules conditioning protection of creators’ work on the creators achieving certain thresholds of creativity. The experiments are meant to model existing copyright and patent laws, which set very different thresholds for the amount of creativity necessary to secure IP rights. The project will culminate in an article describing the data gathered and discussing the implication for IP law and policy. This project is in collaboration with Christopher Sprigman (NYU School of Law), and Christopher Buccafusco (IIT Chicago-Kent College of Law).

ROCHELLE DREYFUSS Pauline Newman Professor of Law

Current Projects:

Intellectual Property at the Edge: The Contested Contours of Intellectual Property, a collection of essays on emerging IP rights. Topics include dilution, trade secrets, geographical indications, traditional knowledge and paracopyright as well as public-regarding principles such as the right to parody, limitations on patentable subject matter, and the recognition of open innovation. The collection is being edited by Professor Dreyfuss and Professor Jane Ginsburg of Columbia Law School and includes chapters by Engelberg Center faculty co-directors Barton Beebe, Jeanne Fromer, and Katherine Strandburg. It will be published by Cambridge University Press.

Percolation, Uniformity, and Coherent Adjudication: The Federal Circuit Experience, the fifth in a series of articles by Professor Dreyfuss analyzing the concentration of appellate litigation over patent issues in the Federal Circuit. The article will be published in a forthcoming symposium issue of the SMU Law Review.

Constructing an International Intellectual Property Acquis for the Agricultural Sciences, a chapter by Professor Dreyfuss for University of British Columbia researcher Emily Marden’s forthcoming book, Innovation in Agricultural Genomics: Overcoming Complexities in the Intellectual Property-Regulatory Complex.

Wealth & Health in Latin America, a book analyzing the implementation of international obligations regarding patent law in Latin America. In particular, the book asks why it is that some countries have managed to maintain access to low-cost medicines and others have not. The book includes empirical studies of 11 countries designed to identify factors that lead to a good outcome, along with short commentaries from a variety of scholars. Along with César Rodríguez Garavito of the Universidad de los Andes Law School in Colombia, Professor Dreyfuss is editing and contributing to the book, part of NYU’s IILJ series on Global Administrative Law, and will be published by Oxford University Press.

Jason Schultz Associate Professor of Clinical Law Director, Technology Law & Policy Clinic

Current Projects:

Technology Law & Policy Clinic, Technology Law & Policy Clinic, a semester-long course that focuses on the representation of individuals, nonprofits, and consumer groups who are engaged with critical and complex questions related to privacy, consumer rights, free speech, and intellectual property from a public interest point-of-view. The Clinic involves a mixture of fieldwork and seminar discussion ranging from technology law and policy to the ethical challenges of representing public interest organizations. This past year, representative matters have included:

Challenging suspicion-less searches of laptops at the international border

Filing public record lawsuits to inform the public about government surveillance programs

Challenging unconstitutional Internet filtering

Filing briefs in important copyright cases such as Viacom v. YouTube

Counseling open source software, open science, and DIY makers to develop appropriate licensing mechanisms

Filing patent oppositions on behalf of non-profit and public health groups to prevent artificial price inflation of life saving HIV drugs in poor countries by pharmaceutical companies

Filing comments and testifying before the U.S. Copyright Office in favor of exemptions to the Digital Millennium Copyright Act to allow for non-commercial remixing of DVD content and “jailbreaking” of devices in order to facilitate scientific research, competition, and access to amateur “homebrew” computer programs

Defensive Patent License, a new legal mechanism to protect innovators by networking patents into powerful, mutually-beneficial legal shields that are 100% committed to defending innovation and reducing the impact of frivolous and costly litigation. The license also prevents proprietary patenting of open source technologies.

Christopher Sprigman Professor of Law

Current Projects:

Experimental Studies of Incentives in Intellectual Property, a series of experiments testing the differential effects of rules conditioning protection of creators’ work on the creators achieving certain thresholds of creativity. The experiments are meant to model existing copyright and patent laws, which set very different thresholds for the amount of creativity necessary to secure IP rights. The project will culminate in an article describing the data gathered and discussing the implication for IP law and policy. This project is in collaboration with Jeanne Fromer (NYU School of Law) and Christopher Buccafusco (IIT Chicago-Kent College of Law).

Experimental Studies of Sequential Innovation Rules in Intellectual Property, a series of experiments testing the differential effects of IP rules governing the right of follow-on creators to build on other's pre-existing work. The experiments are meant to model existing copyright and patent laws, which contain very different rules governing sequential innovation. The project will culminate in an article describing the data gathered and discussing the implication for IP law and policy. This project is in collaboration with Christopher Buccafusco (IIT Chicago-Kent College of Law), Stefan Bechtold (ETH-Zurich), and Zachary Burns (Northwestern University).

Berne's Vanishing Ban on Formalities, an article examining the "ban" on copyright formalities set out in the Berne Convention (and enforced via the TRIPs Accord), and argues that signatory nations retain wide latitude to condition access to remedies, such as injunctions and disgorgement damages, on provision of current ownership information via a registration formality.

The Poverty of Intellectual Property's Philosophy, a project that examines the principal instrumentalist and deontic justifications for intellectual property, considers whether they provide an overarching justification for the existence of some sort of IP system, and also whether they provide lower-level and more specific guidance useful in determining what an IP system's features should be.

Katherine Strandburg Alfred B. Engelberg Professor of Law

Current Projects:

User and Open Innovation, a research agenda for exploring the implications of user and open innovation for patent theory and doctrine. User and open innovation concepts are employed to illuminate the patentable subject matter doctrine and to advocate certain infringement exemptions, as well as to understand physician attitudes toward patenting.

Design Patents, Competition and Progress, a project undertaking a first principles inquiry into the purposes of and need for design patenting, in light of real world industrial design practice and of existing copyright and trade dress coverage of design. The project focuses on the implications for design patent policy of differences between the ways that “progress” is understood in the patent and copyright contexts and differences between the ways that various IP regimes affect competition’s role in motivating progress. This project is in collaboration with Mark McKenna (Notre Dame Law School).

Information Privacy, Surveillance, and the Co-Evolution of Technology and Society, a research project focusing on how First and Fourth Amendment protections against government surveillance should respond to technological changes and to the social changes engendered by new technology.

Information Privacy and Big Data, a project to consider how we should think about privacy and surveillance in a democratic society in which the amassing and processing of data for various purposes is increasingly pervasive. The project involves significant interactions with researchers at NYU’s Center for Urban Science and Progress.

Knowledge Commons Governance, a framework for understanding how IP law interacts with social norms and institutions to govern and potentially enhance or inhibit innovation and creativity. The framework is based on Nobel Laureate Elinor Ostrom’s application of case-study-based research in the natural resource context. Current work on this project is focused on studying the governance of the NIH Rare Disease Clinical Research Network and its member consortia. The project will convene a series of workshops on knowledge commons governance, including a 2013-2014 workshop on knowledge commons governance in the medical arena. An edited volume based on an initial workshop held at NYU last fall will be published in late 2013. This project is in collaboration with Brett Frischmann (Cardozo Law School) and Michael Madison (University of Pittsburgh School of Law).