In the United States, intellectual property (IP) law is intended to encourage the production of new creative works and inventions. Copyright and patent laws do this by providing qualifying authors and inventors with a bundle of exclusive rights relating to the use and development of their...

American legal texts--from contracts to statutes to patents--are rarely complete on their own terms. They may not sufficiently anticipate all future factual situations or may simply be unclear. Such incompleteness is not unique: for thousands of years, Jewish legal authorities have struggled to...

Increasingly pervasive and important digital technologies, because of their technical intricacy, resist easy categorization in existing legal doctrine. Whether computer source code qualifies as protected speech under the First Amendment turns on the source code's expressive and functional...

Copyright law, which promotes the creation of cultural and artistic works by protecting these works from being copied, excuses infringement that is deemed to be a fair use. Whether an otherwise infringing work is a fair use is determined by courts weighing at least four factors, one of which is...

American trademark law has long operated on the assumption that there exists an inexhaustible supply of unclaimed trademarks that are at least as competitively effective as those already claimed. This core empirical assumption underpins nearly every aspect of trademark law and policy. This...

Delivered as the Copyright Society of the USA's 49th Annual Donald C. Brace Memorial Lecture (Nov. 4, 2019).After defining copyright opportunism, I review three recent litigation case studies that meet this definition of opportunism: one involving basketball players’ tattoos depicted in a...

Traditional canons of statutory interpretation have played an unclear role in reviewing agency constructions of statutes in recent years. This uncertainty derives from the Supreme Court's holding in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. that courts should defer to...

In Star Athletica, LLC v. Varsity Brands, Inc., the U.S. Supreme Court had an opportunity to clarify copyright law's treatment of product designs that incorporate functionality. Its opinion failed to do so in a host of different ways. In this comment (as part of the symposium From Shovels to...

This symposium article engages with Dan Burk and Mark Lemley's recent book, "The Patent Crisis and How the Courts Can Solve It," in which they suggest that courts should and do tailor patent law to particular technologies or industries, with the aim of providing appropriate incentives to...