Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the former while screening out the latter. However, the problem for trade secret law is that, in a variety of contexts, it is incredibly difficult to know whether the underlying information is beneficial or harmful to society, and thus whether the information should be disclosed, without first disclosing and scrutinizing it. This is trade secrecy's information paradox: it is hard to know whether a trade secret should be protected without first revealing it. This information paradox implicates numerous social interests, including the environment, public health, criminal law, and the success of the regulatory state. It is at the heart of recent concerns about potentially biased bail and sentencing algorithms, environmentally harmful fracking chemicals, and disparate hiring practices. Yet as is the case with many paradoxes, trade secrecy's information paradox cannot easily be solved, at least with any politically feasible set of tools. Unlike other areas of intellectual property, traditional tools (i.e., doctrinal and costly screens) will do little to sort socially harmful trade secrets from socially beneficial ones-leaving piecemeal, contextualized limits on trade secrecy the most viable path forward, at least for the foreseeable future.

The market value of distinctive trademarks is a fundamental assumption of both trademark law and marketing theory. However, there is little empirical evidence underlying this assumption. We examine the relationship between brand dissimilarity and market prices in the context of the Bordeaux wine market. Using a unique dataset covering thousands of wines and their associated prices and professional ratings, we find that brand distinctiveness is related to higher wine prices. We further show that this relationship persists across the wine quality spectrum, with both lower quality and higher quality wines benefiting from dissimilar marks. Finally, we show that while there is a dissimilarity price premium for lower quality wines, producers who invest in higher quality wines are rewarded with an even greater premium for dissimilar names in absolute dollar terms.

Does copyright law protect an artist's style? The federal courts that have considered the question are equally split. They all agree, however, that the answer to the question resides in copyright laws' idea/expression distinction. According to this doctrine, ideas, techniques, and methods cannot be copyrighted, but expressions of ideas can be. The question courts have faced, then, is whether artistic style is an idea or a matter of expression. The answer, perhaps unfortunately, is that style is both. This is unfortunate because, this Article argues, copyright law's idea/expression distinction is inadequate to the task of determining the copyrightability of style. Instead, it proposes a new way forward, grounded in aesthetic philosophy and a much-derided precedent, that embraces style's dual nature. Just as style is both a matter of content and of form, so too is the copyrightable work both a matter of idea and of expression. On this understanding, defendants should only be found liable for infringement when they have copied both the plaintiffs' expressive formal features and the ideas, content, or subject matter to which they have been applied. Solving this problem is essential in light of the recent lawsuits against generative artificial intelligence platforms that make it trivially easy to produce images and text "in the style of" various artists. Copyright law needs a more coherent approach to this problem than it has achieved with its reliance on the idea/expression distinction.

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated "source significance"-the fact that a particular trademark is identified with a particular producer-as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this Article, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being branded that giving just one firm a monopoly over those words provides that firm with a meaningful competitive advantage-an artificial advantage granted by the state. This problem becomes worse as the number of firms producing (and branding) a type of product increases. The more words cordoned off by trademark law, the more trouble a new entrant will have in describing or attracting attention to its product. Trademark law is thus being hijacked by strategic firms for anticompetitive purposes. Traditional doctrinal tools are inadequate to address this problem because the goal should be to limit the number of such trademarks rather than eliminate them completely. However, costly screens could be used to impose a form of congestion pricing on trademarks, eliminating them in all but the most worthwhile cases. In this Article, we develop a theory of the anticompetitive nature of certain trademark rules. We then propose a series of overlapping doctrinal rules and costly screens to address the problem of rampant anticompetitive trademarks.

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Essay argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those assumptions are replaced with contemporary accounts of how human memory influences the creative process, the independent creation doctrine becomes empirically meaningless. Independent creation, as copyright law understands it, does not exist.Because the independent creation doctrine lacks legitimacy, it has become a site of legal privilege and bias. Copyright law’s treatment of independent creation has favored some creators’ claims at the expense of others, privileging plaintiffs, older creators, and wealthier creators. These biases distort the law’s attempt to optimally regulate cultural production. This Essay offers several proposals for addressing these concerns, from rebalancing legal doctrines to a more radical solution: the wholesale jettisoning of independent creation. Copyright law does not need the independent creation doctrine, and it would be better off without it.

In September 2021, President Biden announced that the Occupational Safety and Health Administration (OSHA) would require large employers to ensure workers are vaccinated against Covid-19 or tested weekly. Although widely characterized as ‘Biden’s vaccine mandate’, the policy could be described with equal accuracy as ‘OSHA’s testing mandate’. Some commentators speculated that reframing the policy as a testing mandate would boost support. This study investigates how framing effects shape attitudes toward vaccination policies. Before the Supreme Court struck down the vaccinate-or-test rule, we presented 1500 US adults with different descriptions of the same requirement. Reframing ‘Biden’s vaccine mandate’ as ‘OSHA’s testing mandate’ significantly increased support, boosting net approval by 13 percentage points. The effect was driven by changing the ‘messenger frame’ (replacing ‘Biden’ with ‘OSHA’) rather than changing the ‘message frame’ (replacing ‘vaccine mandate’ with ‘testing mandate’). Our results suggest that messenger framing can meaningfully affect public opinion even after a policy is widely known. Our study also reveals a potential cost of presidential administration when partisan divisions are deep. Framing a regulatory policy as an extension of the president can elicit strong—here, negative—reactions that may be avoidable if the policy is framed as the work of a bureaucratic agency.

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this paper, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being branded that giving just one firm a monopoly over those words provides that firm with a meaningful competitive advantage—an artificial advantage granted by the state. This problem becomes worse as the number of firms producing (and branding) a type of product increases. The more words cordoned off by trademark law, the more trouble a new entrant will have in describing or attracting attention to its product. Trademark law is thus being hijacked by strategic firms for anti-competitive purposes. Traditional doctrinal tools are inadequate to address this problem because the goal should be to limit the number of such trademarks rather than eliminate them completely. However, costly screens could be used to impose a form of congestion pricing on trademarks, eliminating them in all but the most worthwhile cases. In this paper, we develop a theory of the anti-competitive nature of certain trademark rules. We then propose a series of overlapping doctrinal rules and costly screens to address the problem of rampant anticompetitive trademarks.

Firms rely on brand names to market goods to consumers, and consumers rely on brand names to locate goods that satisfy their preferences. If multiple firms are using the same or similar names, consumers may be confused about which product to buy, and firms may not obtain the benefits of their investments in quality. Recently, both firms and scholars in a number of industries have expressed concern about brand name congestion—too many firms clustering around too few terms. This paper applies computational linguistic analysis to chateau names in the Bordeaux wine region to study the degree of brand congestion within a mature, traditional, and high-value market. We find that Bordeaux producers have highly similar names to one another, far more than in comparable wine regions such as California and Alsace. More than a quarter of all Bordeaux producers have a name that is identical or nearly so to at least one other producer, and many terms are claimed by dozens of different producers. Interestingly, however, we find that the most famous and renowned producers have names that tend to be more distinctive than their less famous brethren. We also provide access to our dataset containing all of the official classifications of Bordeaux wines since 1855.

The ultimate end of patent law must be to spur innovations that improve human welfare — innovations that make people better off. But firms will only invest resources in developing patentable inventions that will allow them to make money — that is, inventions that people will want to use and buy. This can gravely distort the types of incentives that firms face and the types of inventions they pursue. Nowhere is this truer than in the pharmaceutical field. There is by now substantial evidence that treatments for diseases that primarily afflict poorer people — including the citizens of developing nations — are dramatically under-produced, compared with drugs that treat diseases that afflict the wealthy. In addition, the pharmaceutical markets are rife with “me too” drugs — drugs that treat diseases or conditions for which successful medications already exist. This state of affairs is not inevitable. In recent years, medical and psychological research on well-being has created the capacity for policymakers to draw direct links between patents and human welfare. Armed with this information, policymakers have, for the first time, the power to use the patent system to directly incentivize welfare-enhancing innovations. In this Article, we propose a system of extended patent terms for drug inventions that have a substantial impact on human welfare. We further propose that policymakers lift many of the legal protections for patents that have an insubstantial effect on human welfare — which we term “futility patents” — making those patents easier to challenge and invalidate. The result would be a reorientation of pharmaceutical firm incentives toward drugs that will have a significant impact on welfare, particularly for poorer and underserved populations, and away from drugs that are profitable but do little to improve human life.

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Payola—sometimes referred to as “pay-for-play”—is the undisclosed payment, or acceptance of payment, in cash or in kind, for promotion of a song, album, or artist. Some form of pay-for-play has existed in the music industry since the 19th century. Most prominently, the term has been used to refer to the practice of record labels paying radio DJs to play certain songs in order to boost their popularity and sales. Since the middle of the 20th century, the FCC has regulated this behavior—ostensibly because of its propensity to harm consumers and competition—by requiring that broadcasters disclose such payments. As streaming music platforms continue to siphon off listeners from analog radio, a new form of payola has emerged. In this new streaming payola, record labels, artists, and managers simply shift their payments from radio to streaming music platforms like Spotify, YouTube, TikTok, and Instagram. Instead of going to DJs, payments go to playlisters or to influencers who can help promote a song by directing audiences toward it. Because online platforms do not fall under the FCC’s jurisdiction, streaming pay-for-play is not currently regulated at the federal level, although some of it may be subject to state advertising disclosure laws. In this Article, we describe the history and regulation of traditional forms of pay-for-play, and explain how streaming practices differ. Our account is based, in substantive part, on a novel series of qualitative interviews with music industry professionals. Our analysis finds the normative case for regulating streaming payola lacking: contrary to conventional wisdom, we show that streaming pay-for-play, whether disclosed or not, likely causes little to no harm to consumers, and it may even help independent artists gain access to a broader audience. Given this state of affairs, regulators should proceed with caution to preserve the potential advantages afforded by streaming payola and to avoid further exacerbating extant inequalities in the music industry.

Abstract Firms rely on brand names to market goods to consumers, and consumers rely on brand names to locate goods that satisfy their preferences. If multiple firms are using the same or similar names, consumers may be confused about which product to buy, and firms may not obtain the benefits of their investments in quality. Recently, both firms and scholars in a number of industries have expressed concern about brand name congestion—too many firms clustering around too few terms. This paper applies computational linguistic analysis to chateau names in the Bordeaux wine region to study the degree of brand congestion within a mature, traditional, and high-value market. We find that Bordeaux producers have highly similar names to one another, far more than in comparable wine regions such as California and Alsace. More than a quarter of all Bordeaux producers have a name that is identical or nearly so to at least one other producer, and many terms are claimed by dozens of different producers. Interestingly, however, we find that the most famous and renowned producers have names that tend to be more distinctive than their less famous brethren. (JEL Classifications: C88, D83, L66, O34)

The ongoing COVID-19 pandemic has led to acute supply shortages across the country as well as concerns over price increases amid surging demand. In the process, it has reawakened a debate about whether and how to regulate “price gouging.” Animating this controversy is a longstanding conflict between laissez-faire economics (which champions price fluctuations as a means to allocate scarce goods) and perceived norms of consumer fairness (which are thought to cut strongly against sharp price hikes amid shortages). This article provides a new, empirically grounded perspective on the price gouging debate that challenges several aspects of conventional wisdom. We report results from a survey experiment administered to a large, nationally representative sample during the height of the pandemic’s initial wave. We presented participants with a variety of vignettes involving price increases, eliciting their reactions along two dimensions: the degree of unfairness they perceived, and the legal response they favored. Overall, we find that participants are more tolerant of price increases than either the existing behavioral economics literature predicts or most state price gouging statutes countenance. But we also find that price fairness perceptions can be highly sensitive to context. For example, participants are much more tolerant of moderate price increases if they previously are asked to contemplate large price increases. Moreover, participants are substantially more willing to accept a price increase when it is accompanied by an apology and/or a public-minded rationale (such as supporting furloughed employees). We explore the implications of our findings for behavioral economics, pricing practices, and legal reform.

When scholars contemplate the legal tools available to policymakers for encouraging innovation, they primarily think about patents. If they are keeping up with the most recent literature, they may also consider grants, prizes, and taxes as means to increase the supply of innovation. But the innovation policy toolkit is substantially deeper than that. To demonstrate its depth, this Article explores the evolution of designs that help people with disabilities access the world around them. From artificial limbs to the modern wheelchair and the reshaping of the built environment, a variety of legal doctrines have influenced, for better and for worse, the pace and direction of innovation for accessible design. This Article argues that two of the most important drivers of innovation for accessible design have been social welfare laws and antidiscrimination laws. Both were responsible, in part, for the revolution in accessibility that occurred in the second half of the twentieth century. Unlike standard innovation incentives, however, these laws operate on the demand side of the market. Social welfare laws and antidiscrimination laws increase the ability and willingness of parties to pay for accessible technology, ultimately leading to greater supply. But in doing so, these laws generate a different distribution of the costs and benefits of innovation than supply-side incentives. They also produce their own sets of innovation distortions by allowing third parties to make decisions about the designs that people with disabilities have to use. The law can promote innovation, and it can hinder it. For example, the law's relationship to the wheelchair, the most important accessibility innovation of the twentieth century, produced both results. Policymakers have choices about which legal incentives doctrines they can use and how they can use them. This Article evaluates those tools, and it provides guidelines for their use to encourage accessible technology in particular and innovation generally.

Here’s the basic argument: that to the extent that someone exerts too little control or that there is too much unpredictability about the way in which the work will be produced, then that person is at risk of being declared not an author of the work. Copyright law looks for control and predictability, and if there’s not enough of either, then copyright law and the Copyright Office may conclude that the creator is not an “author” of the work. On the other hand, to the extent that there is too much control or too much predictability, then authors run the risk of being told that their work is not creative. In fact, the strategy for an author is to balance these sorts of competing requirements: to exert control over the ultimate product, but not so much control that you risk losing the opportunity for creative expression.

Perhaps more than any other area, intellectual property (IP) law is grounded in assumptions about how people behave. These assumptions involve how creators respond to incentives, how rights are licensed in markets, and how people decide whether to innovate or borrow from the culture and technologies that they see around them. Until recently, there had been little effort to validate any of these assumptions. Fortunately, the last decade has witnessed significant interest in empirically testing IP law’s foundations.

The U.S. Constitution grants Congress the power “to Promote the Progress of Science and the Useful Arts” by granting copyrights and patents to authors and inventors. Most courts and scholars understand this language to entail a utilitarian or consequentialist approach to intellectual property (IP) law. Unlike IP systems in other parts of the world, U.S. IP law generally eschews so-called “moral” or deontological considerations such as justice and fairness. Yet while there is considerable consensus regarding U.S. IP law’s philosophical orientation, there has been little discussion of its deeper normative goals. Most courts and scholars agree with the idea that IP law should provide incentives to creators, but there has been almost no analysis of why creativity and innovation are good. What, exactly, are the interests that IP law should promote? Various answers to these questions exist. One possibility would be to interpret the constitutional language literally and narrowly. On this view, IP law should encourage developments in knowledge and technology irrespective of broader interests. Another option would be to interpret the constitutional language broadly to encompass a general social welfare calculus. In this chapter we discuss a variety of ways of understanding the normative goals of a consequentialist IP regime. We argue that the best approach derives from recent work in the field of hedonic psychology. The principal consequentialist goal of IP law should be to maximize social welfare, where welfare is understood as subjective well-being. We do not argue that IP law cannot have other interests beyond consequentialism; there may be room for deontological considerations such as fairness and justice as well. But where IP law is motivated by welfare considerations, it should be structured to maximize individuals’ happiness. In support of this objective, we offer some suggestions for how a happiness-based IP regime might differ from the status quo.

When designers obtain exclusive intellectual property (IP) rights in the functional aspects of their creations, they can wield these rights to increase both the costs to their competitors and the prices that consumers must pay for their goods. IP rights and the costs they entail are justified when they create incentives for designers to invest in new, socially valuable designs. But the law must be wary of allowing rights to be misused. Accordingly, IP law has employed a series of doctrinal and costly screens to channel designs into the appropriate regime- copyright law, design patent law, or utility patent law -depending upon the type of design. Unfortunately, those screens are no longer working. Designers are able to obtain powerful IP protection over the utilitarian aspects of their creations without demonstrating that they have made socially valuable contributions. They are also able to do so without paying substantial fees that might weed out weaker, socially costly designs. This is bad for competition and bad for consumers. In this Article, we integrate theories of doctrinal and costly screens and explore their roles in channeling IP rights. We explain the inefficiencies that have arisen through the misapplication of these screens in copyright and design patent laws. Finally, we propose a variety of solutions that would move design protection toward a successful channeling regime, balancing the law's needs for incentives and competition. These proposals include improving doctrinal screens to weed out functionality, making design protection more costly, and preventing designers from obtaining multiple forms of protection for the same design.