MSU Law Home

#1 “The Escalating Copyright Wars” (PDF)
Peter K. Yu

Delivered as part of the 2003 Frontiers in Information and Communications Policy Lecture Series sponsored by the Quello Center for Telecommunication Management & Law at Michigan State University, this paper explores the strategies used by the entertainment industry to fight the copyright wars. It also examines the impact of Eldred v. Ashcroft on these strategies, the decision’s ramifications for future constitutional challenges to existing copyright law and recent developments in the international copyright arena. This paper concludes by arguing that the entertainment industry should change its existing strategies in light of the proliferation of peer-to-peer file-sharing networks and the increased public consciousness of copyright matters.

#2 “Rethinking the Development of Patents: An Intellectual History, 1550-1800” (PDF)
Adam Mossoff

This paper challenges the prevailing interpretation of the development of patent rights at common law. In the sixteenth century, a patent represented a monopoly privilege granted to an industrialist by the British monarch, which was enforced by the royal prerogative courts. By the eighteenth century, a patent had evolved into a property right in a novel mechanical or scientific invention that was enforced in the common law courts. Commentators today maintain that this doctrinal shift occurred solely in response to economic or institutional changes in Britain at the time. While recognizing that economics, politics and constitutional law all played a role in the development of patent rights, this paper explains how English lawyers and jurists drew upon John Locke’s theories concerning the social contract and the moral significance of labor and, in doing so, laid the foundation of modern Anglo-American patent law.

#3 “The Need for a Two Tiered First Amendment to Provide for the Protection of Children” (PDF)
Kevin W. Saunders

This paper addresses two problems that arise from attempts to shield children from harmful media influences. With regard to spillover problems, where the law recognizes that children can be limited but is concerned that restrictions spill over to limit adult rights, the Paper argues that there are ways to limit the effect on adults, even on the Internet. Furthermore, some spillover effect is allowed and may leave open the possibility of protecting children from tobacco or alcohol advertisements. The Paper also addresses areas in which material has been seen as protected even for children, areas such as violence and hate speech. The Paper argues for a two-tiered First Amendment that would allow the State to protect children from damaging material, unless their parents want to provide it, while leaving open adult-to-adult communication.

#4 “Network Interconnection and Takings” (PDF)
Adam Candeub

Seeking to encourage competitive markets or further other policies, courts and regulators have mandated interconnection between telephone networks and other communications networks. For instance, courts and regulators mandated interconnection between AT&T and the competitive long-distance companies in the 1980s and between the incumbent Bell monopolists and the competitive local exchanges under the 1996 Telecommunications Act. It is generally assumed that these mandatory interconnection regimes require intercarrier payments to avoid a taking under the Fifth Amendment. This legal belief has led in part to burdensome regulatory access charge and intercarrier payment regimes. In light of recent economic proposals claiming that under some conditions efficient interconnection requires no intercarrier payments, this paper asks whether interconnection without payment constitutes a taking. Drawing on the history of common carriage law and examining the historical property rights of telephone and other communications industries, the paper concludes that interconnection without payment can be consistent with constitutional requirements.

#5 “Currents and Crosscurrents in the International Intellectual Property Regime”
Peter K. Yu

This paper traces the historical development of the international intellectual property regime and demonstrates that this regime is the product of repeated interactions between an evolving set of currents and crosscurrents. It begins by exploring the origins of the Berne and Paris Conventions, the TRIPs Agreement, and the 1996 WIPO Internet Treaties. It then explores the five crosscurrents that have recently emerged in the international intellectual property regime: reciprocization, diversification, bilateralism, non-nationalization, and abandonment. The paper suggests that these crosscurrents may undercut international harmonization efforts and create new challenges for the regime. It concludes by providing observations on the international intellectual property regime in five different areas: bargaining frameworks, regime development, global lawmaking, harmonization efforts, and judicial trends.

#6 “Creative Economies”
Lawrence Lessig

Entertainment and Sports Law Journal
In Spring 2004, students at the Law College re-launched the Entertainment and Sports Law Journal, which was started in 1994. This journal serves as a forum for critically discussing legal issues in the diverse and growing area of entertainment and sports law. Issues explored in the publication range from contract to antitrust law and from torts to copyright law. Second-year MSU Law students join the journal based on their performance in a write-on competition administered at the end of their first year.

Michigan State Intellectual Property Review
Every year, IPCLP collaborates with the Michigan State Law Review to publish a symposium on intellectual property and communications law. To facilitate a greater exchange of ideas, the Review adopts an open-access publication policy and distributes its symposia to intellectual property and communications law professors in the U.S. and Canada. The Review was recently featured by the Creative Commons’s Open Access Law Program and has been cited by the United States Supreme Court in Justice Clarence Thomas’s dissent in Kelo v. City of New London.