Intellectual Property: Law & the Information Society—Cases and Materials
James Boyle, Duke Law School
Jennifer Jenkins, Duke Law School
Copyright Year: 2016
Last Update: 2018
Publisher: James Boyle, Jennifer Jenkins
Conditions of Use
I am evaluating this as a textbook for use in a law school intellectual property survey course. To that end, the casebook (CB) appears to be quite comprehensive. It includes most (if not all) of the foundational cases and concepts I would... read more
I am evaluating this as a textbook for use in a law school intellectual property survey course. To that end, the casebook (CB) appears to be quite comprehensive. It includes most (if not all) of the foundational cases and concepts I would expect for trademark, copyright, patent, and trade secret - all of which are essential for a survey course. Each are edited to keep the survey audience focused. In particular, I think there is strong coverage of copyright in that the book includes a good discussion of the DMCA (although it does not include VARA/moral rights to any significant degree, one may not expect to see that in a survey). Among the various subtopics in each area, there is only one topic missing that I would have expected - patent claim construction/infringement. I can understand why a survey course may not want to tackle this challenge as the cases can be quite complicated, but I think a few essential cases are necessary. However, given the rest of the casebook, one can add the 4 or so key cases with a minimum of fuss. From my review, I have decided to adopt this casebook for my class next year, which I think speaks to its strength.
Although I will have a better sense after teaching with the book, the text appears to be error free from my review.
The content is quite up to date with foundational cases as well as some of the recent, important cases. This is most important in patent, where a number of recent Supreme Court decisions should be - and are - included. Because the focus is on the cases and professor commentary, I have no concerns that the bulk of the CB will become obsolete any time soon. If you go to the author's page for the CB, they have also prepared an additional supplement with newer, essential cases and material and notations identifying exactly where they should appear in the CB. Moreover, the CB authors have made the CB accessible in various formats, including Word, that allow adopters to adjust the material as needed. This allows for quick substitution in the event of a new, essential case.
The CB is written very clearly and its use of technical terms is appropriate and explained. One concern with an IP survey textbook is that some students could be intimidated by the science embedded in parts of IP (whereas others with a science background probably relish these sections). This CB does a great job of presenting the material in an approachable fashion for all law students.
Yes as appropriate. Because the CB covers 4 main forms of intellectual property, there are differences in terms that are appropriate to the distinct areas.
This CB has a great deal of modularity. I am adopting it for next semester and moved or eliminated some chapters and sections within chapters to comport with my personal preferences for class coverage, timing, and amount of material to discuss per class. It was very easy to do. If you go to the website for the CB, you can access each CB chapter separately, which makes it even easier. Additionally, there is a good deal of internal sectioning for most (although not all) chapters.
In general, within each topic, there is a nice organization of 1. an introduction (theory and scope); 2. how to acquire the right; 3. infringement; and 4. defenses (with the exception of patent infringement/defenses and with the exception of trade secret, which may not lend itself to such an organization). Considering that some students find patent, in particular, to be difficult due to its scientific bent, it was nice to see a textbook start with trademark, go through copyright, and finish with patent and trade secret. Copyright and patent, in particular, have many similarities, so starting with copyright is useful. And trade secret is often considered in the alternative to patent, so it entirely makes sense to cover trade secret after patent. If you want to change the order, you easily can. But this initial approach is a nice way to build basic principles and concepts (such as contributory liability) before tackling patent. However, there are two chapters at the beginning of the CB that are a little confusing. Rather than focus on a specific form of IP, these chapters tackle 1. IP and the Constitution and 2. IP and the First Amendment. I think it would be difficult for students to conceptualize some of this material before they have a firm understanding of trademark, copyright, and patent law. It is good material, but one may be better off weaving in the concepts during coverage of each specific area and then having a comparative/summary conversation at the end of the class.
I reviewed, edited, and supplemented the original CB text for my own purposes. I used the Word version from the author's site. I found it very easy to manipulate with no distortions of images/charts or any other display feature with two exceptions. First, the pagination (at the bottom) was a little difficult because each section is set to start on a specific page rather than to continue from the prior section. Easy to fix. Second, there is a lovely logo at the top of each chapter and each case. It is a good marker to let the students know that they are moving on. Unfortunately and perhaps due to my editing, a few of those markers overlapped a bit with the casename that should be below it. Again, an easy fix by adding a couple of lines - and a small problem given the number of markers used throughout the document. On the whole, a good experience.
Although I will be more sure after using the CB, I did not note any grammatical errors in my initial review.
IP often incorporates cultural references and issues of the moment. From my initial review, I did not detect any culturally insensitive or offensive CB material with one necessary exception. There is potentially offensive material in the trademark section because of the law in this field (and the trademarks sought by various US entities or people). The CB authors neither shy away from it nor exploit it in any particularly offensive manner - the cases used are most of the important cases. (I am aware that there is a similar issue with a bit of one copyright case - same comment re the CB handling).
This book presents as an introduction but takes a fairly deep dive into the theories and practices associated with intellectual property. Readers are guided via expository text, supplementary readings, case studies, problem exploration, and role... read more
This book presents as an introduction but takes a fairly deep dive into the theories and practices associated with intellectual property. Readers are guided via expository text, supplementary readings, case studies, problem exploration, and role playing through an investigation of how and why our intellectual property practices have evolved.
Content is thorough and accurate.
The book appears to have been last updated in 2016; however, given its foundation in theory, readers gain a broad understanding of the principles rather than acquaintance with a checklist of copyright rules. This approach enhances the book’s potential for study in future years.
The text is dense, but readable for the intentional scholar. It is not written in highly academic prose, but the content does require attentive, close reading.
The book’s structure is consistent and predictable.
The authors have optimized the potential modularity of the book. Chapter titles clearly state the topic, and within each chapter are several 3-5 page descriptively titled sub-sections,
The text is well organized. A broad introduction is shared at the beginning, the reader works through historic and contemporary issues relevant to the study, and the book concludes with a discussion challenging readers to form their own opinions regarding the role of intellectual copyright in innovative societies.
The book is available as a PDF download. Given its length (800+ pages), a clickable Table of Contents would be helpful; the lack of links, however, may optimize its cross-platform, printable usability.
The book is well-written and without grammatical errors.
Throughout the text, the authors cite instances relating the practice of intellectual copyright to events of recent memory, inviting readers to construct their own understanding of the topics under discussion and relate that understanding to current day practices.
This text can facilitate an outstanding exploration of the theory and practice of intellectual copyright. While use of the entire text may overwhelm students, its format lends itself to adaptation for specific audiences. The concluding chapter regarding Creative Commons may be of particular use.
Table of Contents
- Chapter One: The Theories Behind Intellectual Property
- Chapter Two: Intellectual Property & the Constitution
- Chapter Three: Intellectual Property & the First Amendment
- Chapter Four: Trademark: Introduction
- Chapter Five: Subject Matter: Requirements for Trademark Protection
- Chapter Six: Grounds for Refusing Registration
- Chapter Seven: Trademark Infringement
- Chapter Eight: Defense to Trademark Infringement: Fair & Nominative Use
- Chapter Nine: False Advertising, Dilution & 'Cyberpiracy'
- Chapter Ten: Introduction to Copyright: Theory & History
- Chapter Eleven: Copyrightable Subject Matter
- Chapter Twelve: Copyright's "Reach": Infringement
- Chapter Thirteen: Limitations on Exclusive Rights: Fair Use
- Chapter Fourteen: Secondary Liability for Copyright Infringement & Safe Harbors in the Digital Age
- Chapter Fifteen: Anti-Circumvention: A New Statutory Scheme
- Chapter Sixteen: Copyright & State Misappropriation Law: Preemption
- Chapter Seventeen: Patents: Hopes, Fears, History & Doctrine
- Chapter Eighteen: Patentable Subject Matter
- Chapter Nineteen: Requirements for Patent Protection: Utility
- Chapter Twenty: Requirements for Patent Protection: Novelty
- Chapter Twenty-One: Non-Obviousness
- Chapter Twenty-Two: Trade Secrecy & Preemption
- Chapter Twenty-Three: A Creative Commons? Summary and Conclusion
About the Book
This book is an introduction to intellectual property law, the set of private legal rights that allows individuals and corporations to control intangible creations and marks—from logos to novels to drug formulae—and the exceptions and limitations that define those rights. It focuses on the three graphmain forms of US federal intellectual property—trademark, copyright and patent—but many of the ideas discussed here apply far beyond those legal areas and far beyond the law of the United States.
The book is intended to be a textbook for the basic Intellectual Property class, but because it is an open coursebook, which can be freely edited and customized, it is also suitable for an undergraduate class, or for a business, library studies, communications or other graduate school class. Each chapter contains cases and secondary readings and a set of problems or role-playing exercises involving the material. The problems range from a video of the Napster oral argument to counseling clients about search engines and trademarks, applying the First Amendment to digital rights management and copyright or commenting on the Supreme Court's rulings on gene patents.
About the Contributors
James Boyle is William Neal Reynolds Professor of Law at Duke Law School and the former Chairman of the Board of Creative Commons. His other books include The Public Domain: Enclosing the Commons of the Mind; Shamans, Software and Spleens: Law and the Construction of the Information Society; Cultural Environmentalism (with Lawrence Lessig); and Bound By Law (with Jennifer Jenkins).
Jennifer Jenkins is Senior Lecturing Fellow at Duke Law School and the Director of the Center for the Study of the Public Domain. Her recent articles include In Ambiguous Battle: The Promise (and Pathos) of Public Domain Day and Last Sale? Libraries' Rights in the Digital Age. She is the co-author, with James Boyle, of Bound By Law and the forthcoming Theft! A History of Music.