Brett M. Frischmann

The Evolving Common Law Doctrine of Copyright Misuse: A Unified Theory and Its Application to Software

This Article explores the common law defense of copyright misuse from a variety of angles in an effort to refine and unify existing views. The unified model that emerges is then applied to software copyright, addressing the tension that software creates within copyright law as well as between copyright, patent, and antitrust law. Part I develops a jurisprudential model for understanding the substantive relationship between the copyright misuse doctrine and copyright, patent, and antitrust laws, and the procedural approaches taken by courts when formulating and applying misuse principles-per se rules and the rule of reason. Part Ill examines four Supreme Court cases that provide guidance for the application of misuse principles in the copyright context. It then turns to an analysis of the application of copyright misuse in the federal courts of appeals. These discussions enable a distillation of guiding principles from the case law in an attempt to clarify the current state of the copyright misuse doctrine. Part V applies the principles derived in Parts II and 111 to software copyrights and proposes a per se rule against licensing restrictions upon reverse engineering that complements antitrust-based misuse and the fair use doctrine. Rather than attempt to provide a comprehensive set of public policy-based misuse rules, this Article instead presents a single rule as

Commercializing University Research Systems in Economic Perspective: A View from the Demand Side

Universities face incredibly difficult, complex decisions concerning the degree to which they participate in the process of commercializing research. The U.S. government has made an explicit policy decision to allow funded entities to obtain patents and thereby has encouraged participation in the commercialization of federally funded research. The Bayh-Dole Act enables universities to participate in the commercialization process, but it does not obligate or constrain them to pursue any particular strategy with respect to federally funded research. Universities remain in the drivers seat and must decide carefully the extent to which they wish to participate in the commercialization process.The conventional view of the role of patents in the university research context is that patent-enabled exclusivity improves the supply-side functioning of markets for university research results as well as those markets further downstream for derivative commercial end-products. Both the reward and commercialization theories of patent law take patent-enabled exclusivity as the relevant means for fixing a supply-side problem – essentially, the undersupply of private investment in the production of patentable subject matter or in the development and commercialization of patentable subject matter that would occur in the absence of patent-enabled exclusivity.While the supply-side view of the role of patents in the university research context is important, a view from the demand side is needed to fully appreciate the role of patents in the university research context and to fully inform university decisions about the extent to which they wish to participate in the commercialization process. Introducing patents into the university research system, along with a host of other initiatives aimed at tightening the relationship between universities and industry, is also (if not primarily) about increasing connectivity between university science and technology research systems and the demands of industry for both university research outputs (research results and human capital) and upstream infrastructural capital necessary to produce such outputs.In this chapter, I explore how university science and technology research systems perform economically as infrastructural capital and explain how these systems generate social value. I explain how the availability of patents, coupled with decreased government funding, may lead to a slow and subtle shift in the allocation of infrastructure resources.

Compliance Institutions in Treaties

Due to the costs of negotiating treaties, signatories may defer the resolution of uncertainty to the future rather than include all possible states of nature in a treaty. This particularly will be the case when addressing uncertainty will increase the negotiating costs. In such a context, the existence and form of compliance institutions is of particular importance. We develop a formal model to consider the relationship among treaty negotiation, compliance institutions, and uncertainty over future states of nature. In our model, states of nature determine the costs of compliance with a treaty. We explain that when resolving uncertainty is deferred to the future and compliance costs are unobservable, an escape clause facilitates viability of a treaty. When escape is considered to be de jure compliance, and signatories are incompletely informed about one anothers compliance costs, an incentive for opportunistic breach arises. In such a context, we demonstrate that a dispute resolution mechanism that discloses compliance costs of a signatory invoking escape can deter spurious use of the clause. We incorporate uncertainty through the specification of a discrete time, continuous-state stochastic compliance function. Because many policies for which treaties are negotiated exhibit persistence in their costs of compliance, we contrast compliance cost processes with and without persistence. We explain how persistence in compliance costs that exhibit uncertainty may undermine the effectiveness of an escape clause, even with a dispute resolution mechanism. Persistence also increases the cost of negotiation by increasing the expected costs of compliance, which may result in fewer commitments, rendering the treaty less viable. We examine two options to mitigate these effects: dynamic adjustment of commitments through an institutional compliance structure specified in the treaty, and renegotiation. When an escape clause fails to preserve compliance under persistence, dynamic adjustment may be more likely, as renegotiation requires a stronger commitment to the agreement. When dynamic adjustment entails periodic scheduled reconvening of signatories, however, compliance may be undermined and disputes may be more frequent.

The Application of User Innovation and Knowledge Commons Governance to Mental Health Intervention

User innovation has been applied in many fields (von Hippel 2005), including those related to health care. This chapter describes what is, to our knowledge, the first application of user innovation to the mental health field. We apply user innovation and knowledge commons governance to a mental health problem of considerable importance: child traumatic stress. As we detail, user innovation provides a unique opportunity to develop and adapt interventions that meet the needs of children with traumatic stress and their families. Knowledge commons governance provides a way to share, vet, and improve these user innovations. This approach provides a solution to a critical problem related to the delivery of effective interventions in the mental health field, where the development of effective treatments often is impeded by the inflexibility of evidence-based treatments (Saxe and Acri 2016). First, we describe the problem of child traumatic stress and the imperative to provide effective treatments for children who suffer from it. Second, we detail the problem within the mental health field about adapting interventions so that they meet the needs of individuals with mental health problems and can be delivered in a variety of typical care settings. Third, we describe how we encourage user innovation and harness it in a knowledge commons by creating an intervention model for traumatized children that is flexible enough to address their needs in a variety of typical care settings and by providing infrastructure for sharing and vetting the innovations made by users in adapting the model to their particular circumstances. This intervention model is called Trauma Systems Therapy. It is currently disseminated in 14 states and has been adapted to work in a wide variety of service settings via the process of user

Governance of Biomedical Research Commons to Advance Clinical Translation: Lessons from the Mouse Model Community

The translation of laboratory and clinical research into interventions that improve individual and population health is an iterative process with systemic directionality from basic research through preclinical research, clinical research, clinical implementation, and population health outcomes research (National Center for Advancing Translational Sciences 2015). Engaged in translation are patients and patient advocacy organizations, researchers from public and private sectors and from multiple disciplinary backgrounds, clinical practitioners, as well as a myriad of ancillary support professionals, from business executives, accountants, and marketing/sales staff to venture capitalists and public and philanthropic fund administrators to health and safety regulators. New models of collaboration within this complex ecosystem are required to overcome waste and inefficiencies in current research and development (R&D)

Challenges and Opportunities in Developing and Sharing Solutions by Patients and Caregivers: The Story of a Knowledge Commons for the Patient Innovation Project

The Patient Innovation project is an initiative that aims to create a knowledge commons for patients and nonprofessional caregivers to share and further develop their innovative solutions to medical care–related problems through an online platform, https://patient-innovation.com. Patients and nonprofessional caregivers are the largest, and most important, group of stakeholders in the health care value chain. After all, the system exists for their benefit. Traditionally, however, they have been perceived as passive recipients of medical care, merely buying and consuming the solutions and products that “medical producers” create and provide. This perspective has influenced the development of an entire health care ecosystem that reinforces the passive position of patients and caregivers. The assumption of passivity is highly flawed, as demonstrated by research aimed at studying innovation activity by “users” in health care and understanding the role of patients of chronic diseases (or their nonprofessional caregivers) in developing innovative solutions to help them cope with their health conditions (e.g., Oliveira et al. 2015; Oliveira and Canhão 2016). That collaborative and interdisciplinary research effort demonstrated that patients and their nonprofessional caregivers are major sources of health care product and service “user innovations” (e.g., Oliveira and von Hippel 2011; Oliveira et al. 2015; von Hippel 1988, 2005). Most of the studies of innovation activity by patients build on several decades of “user innovation” research. This research demonstrated that ordinary users, not only commercial entities and research laboratories, are an important source of innovation. In his seminal work in this area, Eric von Hippel, defined user innovators as firms and

The North American Mitochondrial Disease Consortium: A Developing Knowledge Commons

Because the number of people affected with any particular rare disease is relatively small and the number of rare diseases is so large, a host of challenges complicates the development of safe and effective drugs, biologics, and medical devices to prevent, diagnose, treat, or cure these conditions. These challenges include difficulties in attracting public and private funding for research and development, recruiting sufficient numbers of research participants for clinical studies, appropriately using clinical research designs for small populations, and securing adequate expertise at the government agencies that review rare diseases research applications or authorize the marketing of products for rare conditions.

Capabilities, Spillovers, and Intellectual Progress: Toward a Human Flourishing Theory for Intellectual Property

This essay takes a few steps toward a human flourishing theory of intellectual property. It begins with a brief explanation of the utilitarian economic theory of IP and my prior work on spillovers as an internal critique. Next, it discusses Amartya Sen’s development of the capabilities approach as an alternative to utilitarian economics (as well as rights based theoretical approaches). It provides the foundation for an external critique. It then highlights limitations in both the spillovers critique and the capabilities approach as an external critique, and suggests that some of the gaps left bare by the spillover critique may be filled by in the CA and vice versa. The essay also explains three ways in which law operates as a means for society to invest in capabilities: moral floors, social obligations, and leveraged resource allocation. Most of the CA literature that considers the role of law as means focuses on moral floors, such as minimum capability-based standards for nation-states rooted in human rights or manifest in Constitutions. The social obligations theory developed by Greg Alexander incorporates the normative values of the CA into property law and provides an excellent bridge to theory developed in this paper. Leveraged resource allocation, to my knowledge, has not received much, if any, attention elsewhere.Recognizing the intellectual property laws govern nonrival resources requires careful consideration of how society may use the law to leverage nonrivalry as a means for achieving various social objectives, including supporting various capabilities. The moral floors and social obligations theories help frame the conversation about which capabilities matter. But the ends (capabilities) best served (supported) by intellectual property laws are to a large extent limited by or dependent on the interdependent relationships between people, resources and actions within complex nested (economic, cultural, political, and social) systems. The social opportunities to leverage nonrivalry through law and other social institutions are constrained by these relationships, and we need to understand them better as we evaluate and possibly reform intellectual property laws. Integrating the spillovers and capabilities approaches reveals an incredibly useful mechanism by which society invests in public capabilities. The commons components of intellectual property leverage nonrivalry to sustain critically important public capabilities associated with intellectual, cultural, economic, political, and social development; legally-facilitated spillovers function as social investments in the capabilities of others.This essay does not resolve the underlying normative deficit problem in intellectual property. Many commentators, courts and casebooks will continue to assume (mistakenly) that intellectual property is fundamentally and unalterably utilitarian. As I have explained elsewhere, it is not. But even if we adopt human flourishing as our end and assume that developing capabilities within society is our normative objective, we still need to consider which capabilities to support and what mechanism to use for prioritizing or weighting different capabilities.Capabilities are tricky because maximization or optimization only make sense if you specify and prioritize or weight the various capabilities. In this essay, I do not engage that normative question and leave it open to political or other processes for making the normative commitments (and for further exploration in future scholarship). I may have my list and set of priorities, and you may have yours, but we might see areas of agreement emerge when we move off the moral floor debate and engage with the functional resource allocation concerns explored in this essay. Even if we do not find areas of agreement, we still might be able to leverage nonrivalry through the law in ways that leave it open for individuals or groups to decide for themselves what capabilities matter and when and how to exercise them.