Redundancy and Anti-redundancy in Copyright
Oren Bracha (The University of Texas at Austin)
John Golden (The University of Texas at Austin)

Abstract : United States copyright law has a reputation as a tangled mess of overlapping legal doctrines. Although commonly maligned, such redundancy can play a positive role. Redundancy that is well designed and implemented can achieve a better balance between copyright law’s benefits and costs, can safeguard interests in competition and technological innovation, can improve protection of freedom of speech, and can enable flexibility and doctrinal evolution. On the other hand, doctrinal redundancy can have unfortunate results when it is excessive or otherwise unmoored from underlying purpose. Design principles of redundancy and anti-redundancy are thus virtually tailor-made to analyze copyright law’s structure for purposes of identifying potential justifications, flaws, and opportunities for reform. Building on prior work on legal redundancy and on copyright doctrine, this Article analyzes the promise and risks of doctrinal redundancy as a design principle for copyright. Specifically, the Article analyzes redundancy in multiple areas of copyright doctrine: (1) fair use and nonfunctionality, (2) fair use and improper appropriation, (3) copyrightable subject matter and originality, and (4) rights in reproductions and derivative works. The analysis indicates that distinct but overlapping doctrines of fair use, originality, and copyrightable subject matter can better police the boundaries of an expansive copyright regime than could a single doctrine alone. Such reinforced policing is particularly important to secure interests in free speech and competition from improper copyright encroachment. On the other hand, there is reason to question the social value of redundancy as embodied in distinctly identified rights in reproductions and derivative works. More generally, our analysis illustrates how attention to the structural design of legal doctrine can help to improve the content and operation of law.

The Problem of Fictional Data in Patents
Janet Freilich (Fordham Law School)

Abstract : In most contexts, making up data is forbidden - considered fraudulent, even immoral. Not so in patents. Patents often contain experimental data, and it is perfectly acceptable for these experiments to be entirely fictional. These so-called “prophetic examples” are not only explicitly permitted by both the Patent Office and federal courts, but are considered equivalent to factual data in patent doctrine. Though prophetic examples are thought to be common, there are no in-depth studies of the practice, nor any explanation for why fictional data are allowed in patents. Here, I provide the first historical, theoretical, and empirical analysis of prophetic examples. I collect and analyze a novel dataset of over 2 million U.S. patents and applications from the biology and chemistry industries. I find that at least 17% of experiments in this population are fictional. Through both empirical and theoretical analyses, I weigh the potential costs and benefits of prophetic examples and find that the costs prevail. Prophetic examples could be beneficial if they help patentees; but I find little evidence that they do so, even in the specific situations in which they should be the most useful. Instead, prophetic examples likely hinder innovation because they prevent others from conducting their own experiments – even after the patent has expired and even if the prophetic example is incorrect. Prophetic examples also hopelessly confuse scientists – a shocking 99% of scientific articles incorrectly cite prophetic examples as if they contained factual information – which means that made-up results from patents contaminate the scientific literature.

A Theory of Pre-litigation Settlement and Patent Assertion Entities
Leshui He (Bates College)

Abstract : An informed (potential) plaintiff can demand a payment from an uninformed (potential) defendant with the threat of a law suit that may not be credible. The communication takes place before the law suit is filed and is costless to both sides. A unique equilibrium that satisfies the intuitive criterion exists and exhibits partial pooling—cases below a cutoff of legal damage reach pre-litigation settlement, while those above are filed for suit. This equilibrium offers an explanation for the distinctive behaviors of litigation PAEs who aggressively file law suits for settlements and portfolio PAEs who obtain licensing revenues through pre-litigation settlements. Among other results, we shows that, in the US legal system, increasing a plaintiff’s legal costs or adopting the fee-shifting rule reduces the number of filed law suits while risking driving more cases toward pre-litigation settlements. Surprisingly, reducing a defendant’s legal costs or increasing trial costs has the opposite effects.