The Copyright Act of 1976 confers on authors an exclusive right to prepare derivative works. It defines this term as “a work based upon one or more preexisting works,” giving nine examples to illustrate the concept and ending with “or any other form in which a work may be recast, transformed, or adapted.” This right has been unproblematic in cases involving the nine exemplary derivatives and close analogues, but highly problematic in some cases construing the last clause. This Article shows that the exclusive right to prepare derivative works is narrower in scope than critics have feared. The legislative history reveals that the definition was intended to clarify the scope of this right, which was accomplished through the nine examples, which have key characteristics in common, illustrating the types of derivatives meant to be covered by this right. To be consistent with the text of the statute, the legislative history, and the constitutional purpose of copyright, the derivative work should only be infringed under the last clause of the definition only if the plaintiff’s claim involves one of the exemplary derivatives or close analogues. The Article also considers numerous provisions and doctrines of U.S. copyright law that limit the reach of the derivative work right, thereby promoting the constitutional purpose of copyright and policies favoring ongoing innovation and competition, free expression interests of subsequent authors, and privacy and autonomy interests of users. The Article considers a handful of derivative use cases that have given overbroad interpretations to the derivative work right and explains why these decisions are unsound.
{"title":"The Quest for a Sound Conception of Copyright's Derivative Work Right","authors":"Pamela Samuelson","doi":"10.2139/SSRN.2138479","DOIUrl":"https://doi.org/10.2139/SSRN.2138479","url":null,"abstract":"The Copyright Act of 1976 confers on authors an exclusive right to prepare derivative works. It defines this term as “a work based upon one or more preexisting works,” giving nine examples to illustrate the concept and ending with “or any other form in which a work may be recast, transformed, or adapted.” This right has been unproblematic in cases involving the nine exemplary derivatives and close analogues, but highly problematic in some cases construing the last clause. This Article shows that the exclusive right to prepare derivative works is narrower in scope than critics have feared. The legislative history reveals that the definition was intended to clarify the scope of this right, which was accomplished through the nine examples, which have key characteristics in common, illustrating the types of derivatives meant to be covered by this right. To be consistent with the text of the statute, the legislative history, and the constitutional purpose of copyright, the derivative work should only be infringed under the last clause of the definition only if the plaintiff’s claim involves one of the exemplary derivatives or close analogues. The Article also considers numerous provisions and doctrines of U.S. copyright law that limit the reach of the derivative work right, thereby promoting the constitutional purpose of copyright and policies favoring ongoing innovation and competition, free expression interests of subsequent authors, and privacy and autonomy interests of users. The Article considers a handful of derivative use cases that have given overbroad interpretations to the derivative work right and explains why these decisions are unsound.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"12 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74679712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-07-22DOI: 10.1007/978-94-007-2543-0_10
K. Bamberger, D. Mulligan
{"title":"PIA Requirements and Privacy Decision-Making in US Government Agencies","authors":"K. Bamberger, D. Mulligan","doi":"10.1007/978-94-007-2543-0_10","DOIUrl":"https://doi.org/10.1007/978-94-007-2543-0_10","url":null,"abstract":"","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"134 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79440248","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Chapter 8 of the American Law Institute’s Restatement of Employment Law proposes bad law in every sense of the word when it restricts job mobility of current and former employees by imposing a general duty of loyalty and providing for enforcement of non-compete agreements. Its rules are vague and confusing on crucial issues where clarity and precision are needed. In allowing employers to prevent current and former employees from engaging in competitive employment, Chapter 8 is out of sync with the assumptions underlying the at will rule articulated in Chapter 2 of the Restatement, which insists that employment is an at will relationship that either side can terminate in order to pursue more lucrative opportunities with other contracting partners. It is also out of sync with the norms of many contemporary employment relationships in which employees are expected to bring their knowledge and skills to every job and to depart, perhaps after a relatively short-term period of employment, with enhanced knowledge and skills. The only legitimate interests employers have in restraining competition by current or former employees are protected by the law of misappropriation of trade secrets, by the torts of interference with contract and interference with prospective business advantage, and by the corporate opportunity doctrine for managerial employees who owe a fiduciary duty to the firm. The duty of loyalty, as stated in the Restatement and as applied by courts, adds no legitimate protection to employers and is simply anticompetitive. More important, in allowing employers to resort to contract and tort liability to restrict labor market mobility, the Restatement ignores a substantial body of empirical research showing that legal restrictions on mobility are bad for employees, bad for firms, and bad for the economy as a whole. Courts should approach provisions of Chapter 8 skeptically. If they do, the Restatement may fail in its aspirations to shape the law, but at least it will not fail in the ALI’s goal of improving the law.
美国法律协会的《就业法重述》(Restatement of Employment Law)第8章提出，当法律通过强制规定一般的忠诚义务和强制执行竞业禁止协议来限制现任和前任雇员的工作流动性时，从任何意义上讲，法律都是不好的。在需要明确和精确的关键问题上，它的规则含糊不清，令人困惑。在允许雇主阻止现任和前任雇员参与竞争性就业方面，第8章与重述第2章所阐述的随意规则的假设不同步，后者坚持认为雇佣是一种随意关系，任何一方都可以终止，以便与其他合同伙伴一起追求更有利可图的机会。这也与许多当代雇佣关系的规范不同步，在这种关系中，员工被期望把他们的知识和技能带到每一份工作中，也许在工作相对较短的一段时间后，他们会带着增强的知识和技能离开。雇主在限制现任或前任雇员竞争方面的唯一合法利益受到盗用商业秘密法、干扰合同和干扰潜在商业利益的侵权行为以及对公司负有受托责任的管理雇员的公司机会原则的保护。《重述》中所述及法院所适用的忠诚义务，并未给雇主增加任何合法保护，而只是反竞争的。更重要的是，在允许雇主诉诸合同和侵权责任来限制劳动力市场流动性方面，《重述》忽视了大量实证研究，这些研究表明，对流动性的法律限制对雇员、对公司、对整个经济都不利。法院应该对第八章的规定持怀疑态度。如果他们这样做，《重述》可能会在塑造法律的愿望上失败，但至少它不会在美国律师协会改善法律的目标上失败。
{"title":"Contingent Loyalty and Restricted Exit: Commentary on the Restatement of Employment Law","authors":"Catherine L. Fisk, A. Barry","doi":"10.2139/ssrn.2060621","DOIUrl":"https://doi.org/10.2139/ssrn.2060621","url":null,"abstract":"Chapter 8 of the American Law Institute’s Restatement of Employment Law proposes bad law in every sense of the word when it restricts job mobility of current and former employees by imposing a general duty of loyalty and providing for enforcement of non-compete agreements. Its rules are vague and confusing on crucial issues where clarity and precision are needed. In allowing employers to prevent current and former employees from engaging in competitive employment, Chapter 8 is out of sync with the assumptions underlying the at will rule articulated in Chapter 2 of the Restatement, which insists that employment is an at will relationship that either side can terminate in order to pursue more lucrative opportunities with other contracting partners. It is also out of sync with the norms of many contemporary employment relationships in which employees are expected to bring their knowledge and skills to every job and to depart, perhaps after a relatively short-term period of employment, with enhanced knowledge and skills. The only legitimate interests employers have in restraining competition by current or former employees are protected by the law of misappropriation of trade secrets, by the torts of interference with contract and interference with prospective business advantage, and by the corporate opportunity doctrine for managerial employees who owe a fiduciary duty to the firm. The duty of loyalty, as stated in the Restatement and as applied by courts, adds no legitimate protection to employers and is simply anticompetitive. More important, in allowing employers to resort to contract and tort liability to restrict labor market mobility, the Restatement ignores a substantial body of empirical research showing that legal restrictions on mobility are bad for employees, bad for firms, and bad for the economy as a whole. Courts should approach provisions of Chapter 8 skeptically. If they do, the Restatement may fail in its aspirations to shape the law, but at least it will not fail in the ALI’s goal of improving the law.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"62 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77507127","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The purpose of this work is to analyze how public expenditure is evaluated considering the behavior of individuals and agents with concern to legal rules in public finance As a matter of fact, the rules pursue the preferences from individuals and for this reason they sometimes represent judgments based on the human behavior. Some scholars call this “behavioral public finance” and they illustrate how budgetary and tax rules are able to influence the behavior and judgment of individuals (and also how this may be sometimes misinterpreted because of heuristics and biases). I argue that this trend can be inferred by some legal rules in a particular country – v. g., Brazilian experience in public finance and tax law. In its Constitution, it is possible to observe several rules that reflect a specific and diverse value in public expenditure as a result of some heuristics and biases, e. g., a minimum mandatory spending. There are also some taxes that could be studied under this approach in order to achieve an efficient tax policy. Beyond this constitutional analysis, the same phenomenon occurs in the budget with respect to some budgetary techniques, i. e., Congressmen use politics which is over the budget-making process to protect some expenditure over others by the same process of heuristics and biases, which sometimes could be used by some politicians as a “reelection tool”.
{"title":"Heuristics and Biases in Public Finance and Tax Law: Outline of a Behavioral Approach in Brazil","authors":"A. Carvalho","doi":"10.2139/ssrn.2018313","DOIUrl":"https://doi.org/10.2139/ssrn.2018313","url":null,"abstract":"The purpose of this work is to analyze how public expenditure is evaluated considering the behavior of individuals and agents with concern to legal rules in public finance As a matter of fact, the rules pursue the preferences from individuals and for this reason they sometimes represent judgments based on the human behavior. Some scholars call this “behavioral public finance” and they illustrate how budgetary and tax rules are able to influence the behavior and judgment of individuals (and also how this may be sometimes misinterpreted because of heuristics and biases). I argue that this trend can be inferred by some legal rules in a particular country – v. g., Brazilian experience in public finance and tax law. In its Constitution, it is possible to observe several rules that reflect a specific and diverse value in public expenditure as a result of some heuristics and biases, e. g., a minimum mandatory spending. There are also some taxes that could be studied under this approach in order to achieve an efficient tax policy. Beyond this constitutional analysis, the same phenomenon occurs in the budget with respect to some budgetary techniques, i. e., Congressmen use politics which is over the budget-making process to protect some expenditure over others by the same process of heuristics and biases, which sometimes could be used by some politicians as a “reelection tool”.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"59 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85868913","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Prior to the emergence of peer-to-peer technology, the Copyright Act’s distribution right was largely dormant. Most enforcement actions were premised upon violations of the reproduction right. The relatively few cases invoking the distribution right involved arcane scenarios. During the past several years, direct enforcement of the Copyright Act against file sharers has brought the scope of the distribution right to center stage. Whereas the 1909 Act expressly protected the rights to “publish” and “vend,” the 1976 Act speaks of a right to “distribute.” Interpreting “distribute” narrowly, some courts have held that copyright owners must prove that a sound recording placed in a peer-to-peer share folder was actually downloaded to establish violation of the distribution right. Other courts hold that merely making a sound recording available violates the distribution right. The ramifications for copyright enforcement in the Internet age are substantial. Under the narrow interpretation, the relative anonymity of peer-to-peer transmissions in combination with privacy concerns make enforcement costly and difficult. A broad interpretation exposes millions of peer-to-peer users to potentially crushing statutory damages. Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.
{"title":"In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age","authors":"Peter S. Menell","doi":"10.2139/SSRN.1679514","DOIUrl":"https://doi.org/10.2139/SSRN.1679514","url":null,"abstract":"Prior to the emergence of peer-to-peer technology, the Copyright Act’s distribution right was largely dormant. Most enforcement actions were premised upon violations of the reproduction right. The relatively few cases invoking the distribution right involved arcane scenarios. During the past several years, direct enforcement of the Copyright Act against file sharers has brought the scope of the distribution right to center stage. Whereas the 1909 Act expressly protected the rights to “publish” and “vend,” the 1976 Act speaks of a right to “distribute.” Interpreting “distribute” narrowly, some courts have held that copyright owners must prove that a sound recording placed in a peer-to-peer share folder was actually downloaded to establish violation of the distribution right. Other courts hold that merely making a sound recording available violates the distribution right. The ramifications for copyright enforcement in the Internet age are substantial. Under the narrow interpretation, the relative anonymity of peer-to-peer transmissions in combination with privacy concerns make enforcement costly and difficult. A broad interpretation exposes millions of peer-to-peer users to potentially crushing statutory damages. Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"12 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77645045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This history of screen credit and the Writers Guild of America focuses on the union’s administration of private intellectual property rights to facilitate the labor market for writers and the market for ideas, scripts, and treatments for film and TV. Screen credit is one of the very few forms of intellectual property in the modern economy that is designed by workers for workers and without the involvement of the corporations that control most intellectual property policy. Based on research in the archives of the Writers Guild not available to the public, this article argues that the Guild survived conditions that might lead to de-unionization because of the value it provides writers and employers in managing markets for labor and ideas. In particular, the Writers Guild administers two private intellectual property rights systems – the screen credit system and the script registry – that facilitate transactions between writers and producers. The experience of the Guild suggests that under the right circumstances unions can support innovation by creative private intellectual property rights systems to address structural problems in labor markets for talented short-term workers and the start-up enterprises that hire them.
{"title":"The Role of Private Intellectual Property Rights in Markets for Labor and Ideas: Screen Credit and the Writers Guild of America, 1938-2000","authors":"Catherine L. Fisk","doi":"10.15779/Z38K353","DOIUrl":"https://doi.org/10.15779/Z38K353","url":null,"abstract":"This history of screen credit and the Writers Guild of America focuses on the union’s administration of private intellectual property rights to facilitate the labor market for writers and the market for ideas, scripts, and treatments for film and TV. Screen credit is one of the very few forms of intellectual property in the modern economy that is designed by workers for workers and without the involvement of the corporations that control most intellectual property policy. Based on research in the archives of the Writers Guild not available to the public, this article argues that the Guild survived conditions that might lead to de-unionization because of the value it provides writers and employers in managing markets for labor and ideas. In particular, the Writers Guild administers two private intellectual property rights systems – the screen credit system and the script registry – that facilitate transactions between writers and producers. The experience of the Guild suggests that under the right circumstances unions can support innovation by creative private intellectual property rights systems to address structural problems in labor markets for talented short-term workers and the start-up enterprises that hire them.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"53 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2011-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82621540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
H. Doremus, W. L. Andreen, Alejandro E. Camacho, D. Farber, Robert L. Glicksman, D. Goble, B. Karkkainen, Daniel J. Rohlf, A. Tarlock, Sandra B. Zellmer, S. Jones, Ling-Yee Huang
Over the last two decades, natural resource scientists, managers, and policymakers have increasingly endorsed “adaptive management” of land and natural resources. Indeed, this approach, based on adaptive implementation of resource management and pollution control laws, is now mandated in a variety of contexts at the federal and state level. Yet confusion remains over the meaning of adaptive management, and disagreement persists over its usefulness or feasibility in specific contexts. This white paper is intended to help legislators, agency personnel, and the public better understand and use adaptive management. Adaptive management is not a panacea for the problems that plague natural resource management woes. It is appropriate in some contexts, but not in others. Drawing on key literature as well as case studies, we offer an explanation of adaptive management, including a discussion of its benefits and challenges; a roadmap for deciding whether or not to use it in a particular context; and best practices for obtaining its benefits while avoiding its potential pitfalls. Following these recommendations should simultaneously improve the ability of resource managers to achieve management goals determined by society and the ability of citizens to hold managers accountable to those goals.
{"title":"Making Good Use of Adaptive Management","authors":"H. Doremus, W. L. Andreen, Alejandro E. Camacho, D. Farber, Robert L. Glicksman, D. Goble, B. Karkkainen, Daniel J. Rohlf, A. Tarlock, Sandra B. Zellmer, S. Jones, Ling-Yee Huang","doi":"10.2139/SSRN.1808106","DOIUrl":"https://doi.org/10.2139/SSRN.1808106","url":null,"abstract":"Over the last two decades, natural resource scientists, managers, and policymakers have increasingly endorsed “adaptive management” of land and natural resources. Indeed, this approach, based on adaptive implementation of resource management and pollution control laws, is now mandated in a variety of contexts at the federal and state level. Yet confusion remains over the meaning of adaptive management, and disagreement persists over its usefulness or feasibility in specific contexts. This white paper is intended to help legislators, agency personnel, and the public better understand and use adaptive management. Adaptive management is not a panacea for the problems that plague natural resource management woes. It is appropriate in some contexts, but not in others. Drawing on key literature as well as case studies, we offer an explanation of adaptive management, including a discussion of its benefits and challenges; a roadmap for deciding whether or not to use it in a particular context; and best practices for obtaining its benefits while avoiding its potential pitfalls. Following these recommendations should simultaneously improve the ability of resource managers to achieve management goals determined by society and the ability of citizens to hold managers accountable to those goals.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"46 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2011-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77548857","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent studies of knowledge production have increasingly recognized the role of codified knowledge in the operation of social organizations. Much of the knowledge resident in organizations exists as tacit knowledge, that is, as knowledge that goes unrecorded.Typically such knowledge is carried as the personal expertise of employees, passed along to other employees if at all either orally or by practice convention. Such knowledge is frequently a major asset of the organization, and is often critical to the organizations continued operations. However, individualized tacit knowledge is at continual risk: the death or departure or disaffection of key personnel can deprive the organization of the asset, placing the continued operation of the organization in jeopardy.Organizations can guard against such risks by attempting to codify tacit knowledge, that is, by reducing tacit knowledge to a stable coded form that exists independently of individual personnel. Codification of knowledge not only facilitates transmission and retention of knowledge within an organization, it also facilitates barter and exchange of information between organizations of knowledge, effectively sustaining knowledge commodification. However, codification is costly as it requires the development and transmission of codes, as well as supporting processes of recordation and the preservation of coded materials. Additionally, the use of codes implies the existence of sufficient tacit knowledge for users to understand and employ the codes. Thus, while codification may alter the measure of tacit knowledge, codification is never complete, and some equilibrium between tacit and codified knowledge is always maintained.The literature on knowledge production has to date recognized only in passing the role of intellectual property in this process. This paper applies the insights of knowledge production to the features of intellectual property regimes, both to flesh out the analysis of tacit knowledge codification, and to illuminate the role of intellectual property in the firm. Patents, for example, constitute an explicitly codified form of technical knowledge, providing a stable common code for technical know-how, partially ameliorating the risks associated with loss of tacit knowledge. Thus, aside from the usual justifications for patents in terms of incentive or disclosure, patenting may help to secure knowledge against loss or dissipation. However, considerable technical know-how will always remain in tacit form, unpatented and uncodified. As with all codes, the use of patents assumes an attendant constellation of tacit knowledge regarding the interpretation and application of the information in the patent. The degree of codification equilibrium between patents and tacit know-how has clear implications for integral components of entrepreneurship including employee mobility, outsourcing, strategic alliances, and other aspects of firm operations. Patents provide a common code for evaluation
{"title":"The Role of Patent Law in Knowledge Codification","authors":"D. Burk","doi":"10.15779/Z38NM27","DOIUrl":"https://doi.org/10.15779/Z38NM27","url":null,"abstract":"Recent studies of knowledge production have increasingly recognized the role of codified knowledge in the operation of social organizations. Much of the knowledge resident in organizations exists as tacit knowledge, that is, as knowledge that goes unrecorded.Typically such knowledge is carried as the personal expertise of employees, passed along to other employees if at all either orally or by practice convention. Such knowledge is frequently a major asset of the organization, and is often critical to the organizations continued operations. However, individualized tacit knowledge is at continual risk: the death or departure or disaffection of key personnel can deprive the organization of the asset, placing the continued operation of the organization in jeopardy.Organizations can guard against such risks by attempting to codify tacit knowledge, that is, by reducing tacit knowledge to a stable coded form that exists independently of individual personnel. Codification of knowledge not only facilitates transmission and retention of knowledge within an organization, it also facilitates barter and exchange of information between organizations of knowledge, effectively sustaining knowledge commodification. However, codification is costly as it requires the development and transmission of codes, as well as supporting processes of recordation and the preservation of coded materials. Additionally, the use of codes implies the existence of sufficient tacit knowledge for users to understand and employ the codes. Thus, while codification may alter the measure of tacit knowledge, codification is never complete, and some equilibrium between tacit and codified knowledge is always maintained.The literature on knowledge production has to date recognized only in passing the role of intellectual property in this process. This paper applies the insights of knowledge production to the features of intellectual property regimes, both to flesh out the analysis of tacit knowledge codification, and to illuminate the role of intellectual property in the firm. Patents, for example, constitute an explicitly codified form of technical knowledge, providing a stable common code for technical know-how, partially ameliorating the risks associated with loss of tacit knowledge. Thus, aside from the usual justifications for patents in terms of incentive or disclosure, patenting may help to secure knowledge against loss or dissipation. However, considerable technical know-how will always remain in tacit form, unpatented and uncodified. As with all codes, the use of patents assumes an attendant constellation of tacit knowledge regarding the interpretation and application of the information in the patent. The degree of codification equilibrium between patents and tacit know-how has clear implications for integral components of entrepreneurship including employee mobility, outsourcing, strategic alliances, and other aspects of firm operations. Patents provide a common code for evaluation","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"52 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2010-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80733936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2010-08-16DOI: 10.1016/S1059-4337(05)38002-1
Asli U. Bali
{"title":"Scapegoating the Vulnerable: Preventive Detention of Immigrants in America’s ‘War on Terror’","authors":"Asli U. Bali","doi":"10.1016/S1059-4337(05)38002-1","DOIUrl":"https://doi.org/10.1016/S1059-4337(05)38002-1","url":null,"abstract":"","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2010-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90265243","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2010-06-12DOI: 10.4337/9780857933072.00021
Pamela Samuelson
Only rarely do defendants in trade secrecy cases raise First Amendment defenses to misappropriation claims. In a few cases, however, such defenses have not only been raised, but have been successful. These successes have been controversial. Some commentators and at least one court have opined that First Amendment defenses should never succeed in trade secret cases because trade secrets are property and property rights trump the First Amendment. Yet, other commentators and at least one court have argued that enjoining the use or disclosure of trade secrets is a prior restraint on speech that is presumptively unconstitutional. This article explores a middle ground. It explains why First Amendment defenses are so uncommon in trade secrecy cases, among them that trade secrecy law has some limiting doctrines (or "weaknesses") that mediate tensions that might otherwise occur between trade secrecy law and the First Amendment as applied to the use or disclosure of information. The article discusses at length the DVD CCA v. Bunner case in which an online activist was sued for trade secret misappropriation for posting DeCSS on the Internet because that code embodied information that DVD CCA asserted had been misappropriated by reverse engineering in breach of a shrinkwrap license. It refutes the California Supreme Court's analysis of First Amendment defenses as well as showing the inconsistency of this decision with other trade secrecy-First Amendment rulings. It argues that in ordinary trade secrecy cases, where disputes typically concern private uses and disclosures of information by firms that have wrongfully obtained it, no presumption of unconstitutionality is appropriate. However, when a third party, such as a journalist, obtains information that he or she knows has been obtained in breach of confidence and seeks to publicly disclose it because of its newsworthiness, First Amendment interests are implicated, and courts should take First Amendment defenses seriously. The article concludes with a discussion of First Amendment due process issues, such as the need for de novo review of constitutionally relevant facts.
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