Yearly Archives: 2013

Fair Use in Context

Dec 17, 2013 Michael W. CarrollAdd a Comment

When is a use of a copyrighted work a fair use? This issue has grown in significance with the increase in the economic value of copyrighted works and in the ways in which users can distribute, rework, or otherwise borrow from copyrighted works. The fair-use inquiry is contextual, formally focusing on the nature and purpose of a use, the creative nature of the work, the amount of the work used, and the effect of the use on the copyright owner’s ability to economically exploit the work. For some, fair use’s attention to context renders it an unreliable ally for the diligent user.

However, a number of commentators, including this one,¹ have argued that the multifactor inquiry does not lead truly to “case-by-case” adjudication. Instead, the principles of fair use protect certain identifiable patterns or bundles of uses with soft rules while remaining sufficiently open textured to balance interests implicated by new or emerging patterns of use. Others have gone further. My colleagues Peter Jaszi and Patricia Aufderheide have worked with creative communities to identify and articulate best practices in fair use in the context of their patterns of use as described in their recent book Reclaiming Fair Use.

Comes now Michael Donaldson to articulate the soft rule—or in his words the “safe harbor”—that applies when one seeks to make a fair use of a copyrighted work in a new work of non-fiction. Donaldson’s analysis flows not only from his reading of judicial opinions but also from his practice counseling clients and providing formal opinions of counsel that make reliance on fair use an insurable risk for documentary filmmakers, among others.

His article is a worthwhile read for many reasons. On its own terms, the article yields an important and useful insight into the unstated rules of decision that courts use when applying fair use in this context. Donaldson helpfully, and in my view, correctly, identifies the real concerns that animate decision-making. He argues that a fair-use decision-maker is likely to ask the following three questions about the use of a copyrighted work or “asset” in a new work of non-fiction:

1. Does the asset illustrate or support a point that the creator is trying to make in the new work?

2. Does the creator of the new work use only as much of the asset as is reasonably appropriate to illustrate or support the point being made?

3. Is the connection between the point being made and the asset being used to illustrate or support the point clear to the average viewer?

Donaldson argues that when the answer to all three questions is affirmative, the use is within the fair use “safe harbor.” He is careful to also argue that a use may still be a fair use even when the answer to one or more of the questions is “no,” but then the fair-use analysis becomes more context-specific. Additionally, he addresses a number of issues that frequently arise in fair-use decision-making—such as whether the user or copyright owner is acting in good faith or whether the parties discussed a possible license for the use—and argues that these usually serve as distractions. Finally, Donaldson provides an extensive appendix that identifies the cases on which he relies and summarizes how they fare under his three-question test. This is a thoughtful and thought-provoking piece, and scholars and practitioners would do well to engage with Donaldson’s arguments even if they disagree with his particular reformulation of the fair-use inquiry.

This article also is useful to scholars and teachers who seek to better understand the real decision-making process masked by the mechanical jurisprudence that multifactor tests like Section 107 of the Copyright Act or the likelihood-of-confusion test under the Lanham Act sometimes produces (particularly in the latter case). Donaldson presents a model for translating a test that purports to weigh and balance a range of considerations into a more directive inquiry that focuses attention on the facts that really matter in the analysis.

Finally, this article demonstrates how open-ended standards designed to allocate entitlements between private and public interests in intellectual property law can be, and have been, tailored through interpretation to provide a more fine-grained balance than could be readily achieved through legislation. As a result, this article should have appeal both for those interested in the specific application of fair use in the context of non-fiction adaptations and for those who may be inspired to adapt this mode of analysis for other multi-factor legal tests.

Trademark As Promise

Nov 18, 2013 Laura A. HeymannAdd a Comment

The primary theory of trademark law in the academic literature is an economic one. Trademarks are a shorthand, the theory goes, for a number of observable and unobservable qualities of products. The trademark PEPSI, to take one example, is an easy way for a consumer to identify the cola that she enjoys without having to investigate other types of information, such as the location or corporate identity of the manufacturer. Indeed, some types of investigation in this regard—tasting the cola before purchase to confirm that it is the preferred drink—are frowned upon, to say the least. So the law regulates the use of trademarks in order to reduce search costs for consumers and, relatedly, to encourage producer investment in goodwill. When an unauthorized producer uses another’s trademark, the consumer is deceived into purchasing an unwanted product or forced to engage in additional efforts to find the product that she desires, both of which are inefficient. Although economic theory may not map neatly onto all areas into which trademark law extends (dilution law being one such example), it appears to be fairly well accepted in the scholarly literature that economic theory provides the predominant justification for trademark law’s existence.

But consumers obviously do not always act in ways consistent with economic theory. The relationships that some consumers have with some brands transcend a mere economic transaction; they involve identity construction and signaling motivated not by a product’s objective qualities but by intangible, emotional responses to the brand. The fact that some consumers are willing to pay many hundreds of dollars for a designer handbag or watch beyond the price that could be justified by the item’s materials or workmanship are a testament to the limits of economic theory.

This suggests that alternate theories of trademark law are required, and Jeremy Sheff, in his thoughtful and sophisticated article, aims to provide one. Sheff begins by noting that although a deontological framework in the Lockean tradition is typically the intellectual property counterpart to the law-and-economics framework, the Lockean justification cannot tell the whole story in trademark as it might for its adherents in copyright law or patent law. Lockean labor theory, to the extent one favors it, maps best onto intellectual property schemes where the goal is to incentivize the production of intellectual property, which trademark law does not. Indeed, although early trademark doctrine focused, as Mark McKenna has detailed, on the moral notion of unfair competition, modern trademark doctrine is primarily concerned with consumer confusion, which Lockean labor theory, with its focus on harms committed by one producer to another, doesn’t address. Thus, the economic or consequentialist justification can identify both a producer-side wrong (free riding) and a consumer-side wrong (enhanced search costs), but a deontological justification typically relates only to a producer-side wrong (misappropriation of the fruits of one’s labor).

Sheff therefore proposes a Kantian contractualist theory to fill this gap, in which actors are motivated not by consequentialist notions but by a moral imperative to act in a particular manner—as one might characterize it, motivation by “good will,” not by “goodwill.” Sheff notes that under this theory, individuals are treated as ends, not means, which requires an acknowledgement of “the unique capacity of rational beings to choose what ends they will pursue and to settle on actions to achieve those ends” (P. 777) and a commitment not to interfere with those choices by lying or deception. In essence, this is a theory of “trademark as promise.”²

Sheff then turns to an initial application of a contractualist theory to trademark law. Significantly, his theory addresses a hypothetical with which a consequentialist theory has difficulty: What happens when a consumer is misled into buying a product from producer X because of X’s use of Y’s trademark, but X’s and Y’s goods are of identical quality, such that no harm is done? Under a contractualist theory, there is indeed still harm done: To the extent that the use of a trademark is a promise from the producer to the prospective consumer that the producer is who he says he is (and assuming that the consumer is purchasing goods based on this representation), the harm is the very breaking of that promise through deception because it deprives the consumer of autonomy in the marketplace.

To be sure, not every doctrine in trademark law can be explained this cleanly. Later in the article, Sheff turns to post-sale confusion, a more complicated application of his premise, in which the confused consumer is not the point-of-sale purchaser but some later observer, an application that raises the question of whether it is the defendant producer or the status-seeking consumer who is the breaching party. In other words, when Buyer A displays a fake Gucci handbag, thereby deceiving Bystander B into thinking it is genuine, Buyer A may be the morally questionable individual (at least in some circles). But it is the producer of the fake Gucci handbag that is the putative defendant in trademark law—arguably only an accessory to Buyer A’s deception—not Buyer A herself.

The fact that Sheff’s article leaves many questions not fully answered, however, is not a failing but rather a testament to the creativity it sparks, and Sheff assists the reader by highlighting many of these areas for further exploration. What, for example, would a contractualist theory have to say about trademark infringement cases that don’t involve deceptive behavior but instead involve an innocently adopted trademark that turns out to be somewhat similar to the mark of another producer? Does the same notion of a broken promise exist in that instance? Is it a moral violation for a company to change its trademark after a public relations disaster, or for a company to obscure the connections between its brands by using different trademarks for different products? Does a theory of “trademark as promise” limit the extent of any changes a company can make to its ingredients or formulation while maintaining the same brand? Put otherwise, do brand owners also have a claim to autonomy in their choices that is incompatible with a theory of trademark as a promise to a consumer?

Sheff does not purport to set forth an all-encompassing theory, but his proposal is highly compatible with the way we now talk about brands. We are ever more in a world in which consumers engage with many brands as personas. Brands are trusted confidants and comforting companions. They find allegiances with different social groups at different times in their development; they uplift us and betray us. These brands are not simply a way of finding goods in the marketplace; they are also a way of announcing or defining one’s identity, creating relationships with others, signaling wealth, or engaging in any one of a number of expressive functions. Companies respond in kind, by creating advertising or affinity groups that foster this type of engagement, and by aggressively using trademark law as a kind of corporate defamation law, pushing back at uses that offend their view of their brands. If these are our relationships with brands today, then perhaps we should be characterizing their relationships with us as ones of promise, representations, and trust. The difficulty will then be in determining which promises we truly expect brands to keep.

Creative Incentives

Oct 18, 2013 Christopher J. Sprigman

The classic justification for intellectual property laws was perhaps stated best by Abraham Lincoln, who, in speaking of the patent system, characterized its function as “adding the fuel of interest to the fire of genius.” Put less poetically, IP aims to encourage creativity by granting creators exclusive property rights in their creations. That way, if a patented invention or copyrighted work turns out to be worth money, the creator will benefit, rather than a copyist.

That sounds entirely sensible in theory. We think that people generally respond to incentives. Make gasoline more expensive by taxing it, and people generally use less of it. Give people a tax break on home mortgages, and they build more and bigger houses. Make creativity a little less risky, and the payoff a bit more certain, and we’ll get more investment in creative labor.

But is creativity really like gas and houses? Can the amount that we get of creativity be raised by providing incentives? The answer is bound to differ a lot depending on what sort of creativity we’re talking about. Poetry and drug discovery are both creative endeavors, but they are more different than alike. It is difficult to imagine piracy leading to poets throwing down their pens. But we may more readily imagine a drug company cutting its research budget if others are permitted to copy the pills the company spends hundreds of millions to develop. In between poetry and pharma there is a lot of territory. Where in this spectrum of creativity do intrinsic incentives to create leave off? And where do we need to start to introduce extrinsic incentives—either through prizes, or IP laws, or other schemes like government funding of basic research? On these questions, we know surprisingly little. Do incentives work? If so, when? And what sort of incentives are best?

A new paper by three European economists sheds some light on those questions. In How Do Incentives Affect Creativity?, Katharina Eckartz and Oliver Kirchkamp of Friedrich-Schiller-University Jena, and Daniel Schunk of the University of Mainz present the results of an carefully-designed and admirably creative experiment (hereinafter, the “E-K-S Experiment”).

The authors are interested in whether compensation schemes that pay people more when they perform better provoke creative effort, relative to payment of a flat fee that does not vary based on performance. That’s a narrow question, but, as so often is the case, one which is surprisingly difficult to test.

The E-K-S Experiment employs a word task as its measurement of creativity. Participants were presented with a series of alphabetically-ordered lettersets consisting of 12 letters—an example would be “accdeeeginst”—and asked to construct as many words as they could, using only the letters in the letterset, in five minutes. Longer words were deemed more valuable than shorter, in an amount disproportionate to the number of letters in the word.

Is assembling words from a letterset really a “creativity task”? The authors contend that the task is measuring a specific sort of creativity; namely, the ability to combine known elements within a set of pre-determined rules. Of course this is far from the only form of creativity, and it is possible that different sorts of creators might respond to incentives differently. But that’s not really a criticism of the E-K-S Experiment. No one experiment can capture all the facets of the huge range of activities we group as “creativity”. To be a valuable contribution, the E-K-S Experiment must only describe how incentives affect subjects’ performance in a credible model of one sort of creativity, and then later papers, or other researchers, can expand the findings to model many different types of creative work.

Back to the design of the E-K-S Experiment. The experiment was run with 216 student subjects. Subjects were first required to pass a German-language pre-test. Subjects were also asked to self-report their interest in participating in a range of creative tasks. This was done to assess subjects’ intrinsic motivation to engage in creativity.

Once these preliminaries were completed, subjects performed the creativity task three times, in “rounds” lasting five minutes. Each time the subject performed the task, the payment scheme shifted. The experimenters tested a flat fee scheme, a pay-for-performance scheme—where the amount of money earned increased along with performance—and a “tournament” scheme, in which subjects were divided into groups of four and the highest-scoring in the group earned the lion’s share (but not all) of the prize. Subjects undertook the creativity task within each of these conditions. The order in which the conditions were presented was varied to make sure that performance was not dependent on which condition the subjects completed first (that is, before they either got better at the task, or became tired and bored with it). After performing the creativity task under one of the payment conditions, the subjects were asked to perform a “control” task—i.e., a task, such as a number-adding test, that involves work but not creativity—under the same payment condition. In the final stage of the E-K-S Experiment, subjects were asked to pick one of the payment schemes they wished to repeat. This last stage was included to see whether there would be any significant differences among subjects regarding their choice of “favorite” payment scheme.

So, what were the results? They can be stated very simply: Variation in subjects’ performance was driven almost entirely by subjects’ individual characteristics—i.e., how good they were at the task. The payment incentive schemes had almost no effect on performance in either the creativity or control tasks. Subjects in the flat fee payment condition performed about the same as when they were in the pay-for-performance or tournament schemes. This was true whether subjects’ performance was assessed for complexity of the words they produced, or their originality. Aside from a small, positive effect on word length produced by the pay-for-performance scheme, all effects were too small to be statistically significant.

Subjects’ general indifference to incentive payment schemes carried through, moreover, into the final “self-selection” round. Flat payment schemes—i.e., those not related to performance—were subjects’ favorite on average, with 40.74% of subjects choosing this scheme. (Females favored flat payment more than males, who actually favored pay-for-performance very slightly.) The tournament condition was the least popular, with approximately 27% of subjects choosing it overall, and with women and men choosing tournament at roughly the same rate. This cuts against previous findings that male subjects, supposedly more risk-seeking than their female counterparts, favor tournament settings where most if not all of the rewards go to a winner, leaving the losers with little or nothing. So if the conventional wisdom says that men are from Mars and women from Venus, the results of this experiment suggest that, at least as far as creativity incentive preferences go, the sexes occupy pretty much the same territory right here on Earth.

What did stand out in the E-K-S Experiment was the tendency of higher-performing subjects to sort themselves in the “self-selection” stage into either the pay-for-performance or tournament scheme. This means that average performance was marginally higher in these two conditions vs. flat fee. Not, however, because the conditions created some differential incentive effect. Rather, because subjects had a relatively accurate sense of their own relative performance (even though the experiment was not designed to give them information about relative performance) and chose performance-based schemes when they were confident of their relative ability. But there is very little normative significance to higher-performing subjects’ self-selection. When these subjects were confined to a flat payment condition, they performed about the same. In short, this subgroup’s preference has little effect on their creative output.

So, what’s the payoff of the E-K-S Experiment for our thinking about IP law? Well, it’s complicated, but here’s a take. You can think about both patent and copyright as analogous to the E-K-S Experiment’s “tournament” payment condition. That is, if you set aside for a moment other compensation options—in particular the prospect of being paid a salary to engage in creative work—an inventor who patents his new machine, or a writer who copyrights her screenplay, both are entering into a market where there are a few (potentially big) winners and a lot of losers. Put differently, only a few patented inventions and copyrighted works are worth real money. The vast majority are worthless. Most people probably realize this. Does it blunt their willingness to enter into tournament markets?

There is a good deal of research into these “tournament” markets, and most of it suggests that people are quite optimistic about their chance of success, and are attracted to the prospect of a big payoff, even if any individual competitor is very unlikely to actually win it. The E-K-S Experiment, however, suggests otherwise. Subjects were no more creative in the tournament market setting. Nor, in general, did subjects favor that form of compensation over flat fee or linear performance-based incentives.

Which leads to the following hypothesis—and it is only a hypothesis, because the E-K-S Experiment suggests it but does not test it directly: In at least some settings—and at least for individual creators (the behavior of corporate creators is not modeled in the E-K-S Experiment)—getting paid a flat salary to do creative work is every bit as effective an incentive to perform as the prospect of striking it rich via a valuable patent or copyright. The hard part is figuring out when this is true. And why.

The Interpretation-Construction Distinction in Patent Law: Is It Just a Matter of Semantics?

Sep 17, 2013 Kevin E. Collins

Claim construction is the meat and potatoes of a patent litigator’s diet: it is performed early and often in patent infringement litigation, and it is often outcome determinative. Claim construction’s notoriously uncertain and unpredictable nature is therefore highly problematic. In The Interpretation-Construction Distinction in Patent Law, Tun-Jen Chiang and Lawrence B. Solum argue that courts and commentators have misdiagnosed the root cause of this problematic unpredictability, and they lay out a new route forward for courts seeking to make claim construction more predictable. At the end of the day, I am unconvinced that the patent community should follow this route. Nonetheless, I think that The Interpretation-Construction Distinction is a provocative read that forces the reader to clarify what are sometimes implicit, unarticulated assumptions about the nature of claim construction in order to mount an effective rebuttal.

Drawing on a literature that explains how courts give legal effect to other legal documents (including the Constitution and contracts), Chiang and Solum offer a new perspective on claim construction. They argue that many courts that perform claim construction are not employing a single process but, rather, are in fact employing two distinct processes. First, there is interpretation, or the process of determining the linguistic meanings of words. For Chiang and Solum, linguistic meaning is entirely determined by the understandings of an audience, and it is therefore factual and objective. “The ideas and concepts that the intended audience will comprehend from a certain text is simply a fact of the world.” (P. 15.) Second, there is construction, or the process of imbuing claim language with legal import in order to achieve particular policy outcomes. For Chiang and Solum, any process in which courts consider the policy of optimal claim scope cannot be interpretation and must be construction. “[L]inguistic meaning is the domain of interpretation, and it is factual, and there is no ‘should’ in that question.” (P. 22.) “[L]inguistic meaning is beyond the control of, and thus not dependent upon, the normative preferences of a third-party interpreter such as a judge.” (P. 15.) For example, any attempt of a court “to tailor patent scope to the real invention” is an act of construction because it requires a court to consider normative, patent-policy concerns to identify the level of abstraction at which the “real invention” should be identified. (P. 4.)

With the interpretation-construction distinction in place, Chiang and Solum draw a sharp distinction between what conventional wisdom identifies as the source of uncertainty of claim construction and what they identify as its source. Conventional wisdom, they argue, is that the uncertainty derives predominantly from interpretation and thus uncertainty in the descriptive breadth of words’ meanings. In contrast, Chiang and Solum argue that the uncertainty derives primarily from a disagreement among judges concerning the legal import with which courts should imbue claim language in order to achieve particular policy outcomes. They argue that courts frequently use claim construction to override the legitimate range of interpretation of a word’s meaning and to give a legal effect to a word that is beyond the bounds of what the word actually means as a linguistic matter:  “[T]he cause of uncertainty in claim analysis is typically not a linguistic defect, but rather normative disagreement.” (P. 11).

I do not want to suggest that Chiang and Solum are per se wrong when they draw a categorical distinction between interpretation from construction. In fact, I believe that they offer one theoretically plausible way of describing what goes on when a court engages in claim construction. However, I worry that they oversimplify the conventional wisdom on claim construction and that the distinction between the extant debate and the Chiang/Solum thesis is itself just a matter of semantics. That is, I wonder if Chiang’s and Solum’s overarching thesis is novel only because it uses newly crafted concepts to describe the same-old controversy that has been percolating in the courts and law reviews for the last fifteen years or so.

Chiang and Solum assume that the existing debate about claim construction is focused on uncertainties in “linguistic meaning” as they themselves define the concept. That is, they assume that scholars and judges who talk about meaning are talking about an unmediated phenomenon governed solely by the understandings of the intended audience—namely the actual, real-world PHOSITAs. Yet, the linguistic meaning of a term in a patent claim need not be defined in this manner, and I am doubtful that the extant literature on claim construction has routinely defined it in this manner, either. Why can’t linguistic meaning be mediated by courts? What is wrong with saying that courts have authority to establish the rules that must be followed to identify the meanings of the words in a patent claim? There is an Academie Francaise that in some sense determines what French means as a linguistic matter, so why can’t there be courts that establish a claim construction methodology, i.e., the rules that one must follow determine what patent claims mean as a linguistic matter?³ As soon as patent claims are recognized as a realm in which there are special rules for linguistic meaning and as soon as the courts are given an instrumental role in determining these rules, the interpretation-construction distinction blurs into a continuum. There are certainly cases in which the meanings of claim terms according to the court-determined rules will be closer to and farther away from the meanings of those claim terms to actual, real-world PHOSITAs without knowledge of those legal rules, but there is no dichotomy.

Chiang and Solum reject the possibility of a court influencing the linguistic meanings of claim terms by citing a concern about “circular, confused, or misleading argumentation”:

“[T]he standard doctrine…says that courts follow the “meaning” of text. If, for this purpose, the ‘meaning’ referred to the legal effect, then we have a circularity: the court follows the meaning of text, but the meaning is the legal outcome, which is entirely within the control of the court. Under this standard, a court could do anything and it would always be right, which would make clear thinking impossible.” (Pp. 29–30.)

But this argument itself is confused. If courts were to take an ad hoc approach to claim construction, then Chiang and Solum’s concern might have some merit. However, claim construction disputes often center on a dispute over methodology: the set of rules for assessing the meaning of claim terms should be established ex ante, prior to and independent of any given patent claim. The courts’ determination of claim scope is a two-stage game. First, courts establish rules that determine how meaning is to be determined. Second, courts use those rules to determine the meaning of the words in any given claim. The meaning of a text can be its legal effect, and the rules for determining meaning can be both judicially established and steeped in patent policy, yet courts cannot do whatever they please in any given case. Courts must follow the rules, even if rules were established by courts in earlier cases.⁴

Chiang and Solum argue that the payoff of recognizing that construction, not interpretation, is the primary source of the uncertainty in contemporary claim construction lies in the transparency of intention that follows from calling a spade a spade. If courts and commentators recognize that the disagreements between judges and litigators in claim construction disputes are in fact disagreements over the policy of optimal claim scope rather than disagreements over the actual meaning of language, they posit that we are more likely to identify potential solutions and have rational arguments about which of those solutions will maximize the social-welfare gains of the patent regime. I agree entirely with Chiang and Solum that overt recognition of the role that patent policy does and should play in debates over the optimal claim construction methodology should be encouraged. For any judges or patent practitioners out there who truly believe that the debate over the best claim construction methodology is and should be devoid of policy concerns, Chiang and Solum have provided a sorely needed wake-up call. Yet, I’m not convinced that the distinction between interpretation and construction is either necessary or even helpful to facilitate this recognition. Although it may well just be the rose-colored reading glasses that I wear, I have always read the judicial and scholarly debate over the best methodology for determining the linguistic meanings of words in claims (i.e., the conventional wisdom on claim construction) as a deeply normative debate that is steeped in patent policy. Because I understand word meaning to be a mediated phenomenon in patent law, I read the conventional wisdom to suggest that the courts should establish rules to imbue the words of a patent claim with linguistic meaning that best achieves policy goals (e.g., predictability, optimal claim scope, or something else). Thus, there is no need to recognize a distinction between interpretation and construction to have the conversation about patent policy that we should be having. Furthermore, my suspicion—and it would concededly take much more space than I have here to flush this out in a convincing manner—is that switching over to Chiang’s and Solum’s way of talking about claim construction would do more to muddy the waters than it would to make our policy goals more readily obtainable.

So, in the end, my concern is that the difference between the conventional way of describing what courts do, on the one hand, and Chiang’s and Solum’s way, on the other hand, is itself just a matter of semantics. Chiang and Solum say the rules for determining the meanings of words in a patent claim are exogenous to both the courts and patent policy, so courts need to engage in policy-driven construction in addition to interpretation. Both I and at least some purveyors of the conventional wisdom on claim construction say the rules for determining the meanings of the words in a patent claim should themselves be created by courts in light of patent policy. That is, they say po-TAY-to, and I say po-TAH-to. So long as we agree that the choice of a set of rules for performing claim construction is a choice that should be steeped in patent policy, maybe we should call the whole thing off. If we don’t, each side must at least recognize how the other side defines the term “meaning” so that we don’t just talk past each other.

Unauthorized Improvement Across Property Law

Aug 2, 2013 David Fagundes

Scholars often debate whether intellectual property really is property at all. This is far more than just a descriptive inquiry. Asking how law regulates tangible and intangible goods differently can deliver valuable insights about the optimal governance of real property and chattels, patents and copyrights. Deepa Varadarajan’s engaging piece, Improvement Doctrines, forthcoming in the George Mason Law Review, represents an important contribution to the growing literature about what property and IP can help us learn about one another. Improvement Doctrines focuses on the fascinating but underappreciated body of doctrines in physical property law that favor—and sometimes entirely excuse—trespass and conversion that is done in good faith and that adds significant value to the res. Professor Varadarajan’s article then uses these improvement doctrines as a lens though which to analyze intellectual property’s relatively anemic attempts to take account of improving but unauthorized uses of patented inventions and copyrighted works of authorship. In so doing, Improvement Doctrines identifies and illuminates a series of fascinating problems that span both physical and intellectual property law.

Professor Varadarajan’s article begins with physical property’s improvement doctrines and moves into an investigation of unauthorized improvement in intellectual property law. In so doing, though, it neither assumes that tangible and intangible property law must mechanically mirror each other, nor insists that the differences between corporeal and incorporeal goods render any such extrapolations useless. Rather, Improvement Doctrines’ primary analytical driver is its thoughtful synthesis of the efficiency and equity rationales underlying ameliorative waste, accession, adverse possession, and mistaken improvement of land. This discussion alone yields a number of valuable insights, such as the creative point that adverse possession warrants categorization as an improvement doctrine even though its substantive law does not require enhancements to land.

Professor Varadarajan’s piece then leverages this discussion of the structure of property’s improvement doctrines to draw attention to a perplexing problem that has largely escaped the attention of scholars: Property law is in many respects more forgiving of unauthorized improving use than intellectual property law, even though both patent and copyright exist only pursuant to a constitutional mandate to advance the progress of science and the useful arts. The piece concludes with a series of suggestions for how to make IP law more closely approximate the kind of toleration toward improvers that physical property law exhibits. These final prescriptive claims, though, rest on the undefended assumption that more toleration for improvement in IP law would foster more creation and invention. It is at least worth pondering the possibility that greater leeway for unauthorized improvement of others’ inventions and works of authorship would undermine authors’ and inventors’ incentives to create them in the first place.

Like all good work, Improvement Doctrines not only makes a strong case for its central claims but also raises a host of other provocative points to contemplate. Among these, perhaps the most interesting flow from Professor Varadarajan’s apt observation that property law’s improvement doctrines reflect the capacity of trespass and conversion to create social welfare. This point carries a pair of intriguing implications: First, law has traditionally assumed that the best arbiter of a productive use of property is the owner of the res. But Improvement Doctrines reminds us that this is by no means the case. Landowners may let productive space go unused, so that we end up cutting a break for the good faith improver who mistakenly builds a house on a vacant lot. And copyright owners may guard their works too jealously, so that we need law to favor the user who makes an unauthorized but socially valuable derivative work.

Second, and related, it’s not only unauthorized improvement of property that can create substantial social value, but unauthorized use. Professor Varadarajan’s analysis elucidates the case of the unauthorized use that transforms property, like building a house on the wrong lot or making a remix of sound recordings without the owners’ permission. But not all socially productive unauthorized use of property necessarily creates something new or improved in the process. Trespass over an unimproved plot of land may provide a helpful way of access at no cost to the owner. Making an unauthorized digital version of an obscure, out of print book may provide the only way for a student to acquire a copy of that text for class. The improvement doctrines on which Professor Varadarajan focuses may be only a part of a larger picture that situates in doctrine and theory the unappreciated upsides of unauthorized use of property, physical and intellectual alike.