Presentation: Knowledge as a Resource at WIPIP 2023

This past weekend at the 20th Annual Works in Progress in Intellectual Property Colloquium (WIPIP 2023) at Suffolk University in Boston, I presented yet another chunk of my long-running book project, Valuing Progress: A Pluralist Account of Knowledge Governance. This piece, Knowledge as a Resource, examines those characteristics of knowledge–particularly nonrivalrousness–that distinguish knowledge from other goods that are subject to evaluation under the criteria of distributive justice. Because knowledge can be shared without depriving the sharer of anything, norms of distributive justice that have developed in the context of rivalrous goods–norms such as reciprocity–generate paradoxes when we try to apply them to knowledge. This requires us to choose among competing and contestable values underlying and justifying those norms. With respect to reciprocity, for example, it requires us to decide whether reciprocity is grounded in the value of compensation for burdens borne or in the value of gratitude for benefits received. While the distinction between these two justifications can often be ignored for rivalrous goods–particularly where institutions like property rights and markets limit exchange to goods over which parties agree as to their value–it cannot be ignored for knowledge: we must choose one at the expense of the other. The inevitability of such choices among competing values is the overarching theme of the book.

Slides for Knowledge as a Resource can be found here:

New and Improved: The Canada Trademarks Dataset 2.0

Today I released a revised and updated version of the Canada Trademarks Dataset (v.2.0): an open-access, individual-application-level dataset including records of all applications for registered trademarks in Canada since approximately 1980, and of many preserved applications and registrations dating back to the beginning of Canada’s trademark registry in 1865, totaling over 1.9 million application records.

The original dataset, released on March 2, 2021 and described in my article in the Journal of Empirical Legal Studies, was constructed from the historical trademark applications backfile of the Canada Intellectual Property Office, current through October 4, 2019, and comprising 1.6 million application records. The revised dataset represents a substantial advancement over this original dataset. In particular, I have rewritten the code used to construct the dataset, which will now build and maintain a mySQL database as a local repository of the dataset’s contents. This local database can be periodically updated and exported to .csv and/or .dta files as users see fit, using the python scripts accompanying the dataset release. Interested users can thus keep their installation of the dataset current with weekly updates from the Canada Intellectual Property Office. The .csv, .dta, and .sql files published in the new release include these weekly updates since the closing date of the historical backfile, and are current through January 24, 2023.

Full details are available at the Version 2.0 release page on Zenodo.

New Paper on Reverse Confusion in George Mason Law Review

I’ve posted a newly published paper to SSRN: Reverse Confusion and the Justification of Trademark Protection, 30 Geo. Mason L. Rev. 123 (2022). This paper continues my series of critiques of the law-and-economics model of trademark law–which doesn’t match the cases very well–and further develops my own alternative model of trademark as promise, grounded in contractualist ethics. Other papers in this series include Marks, Morals and Markets, 65 Stan. L. Rev. 761 (2013); and Finding Dilution, in Research Handbook on Trademark Law Reform (Graeme Dinwoodie & Mark Janis eds., Edward Elgar Press 2021). Comments are welcome.

The Lawprofs Mastodon Instance – A Call for Community Volunteers

Animal Trial

Elephant JudgeOver the past month, as the user experience on Twitter changed under new management, millions of people have migrated to the decentralized social media platform Mastodon. About three weeks ago, in an effort to facilitate that transition for my own professional community, I set up a Mastodon “instance,” or server, specifically for legal academics: the Lawprofs Mastodon Instance. I’m not an experienced sysadmin, so there were a couple of bumps along the way, but the server is now running smoothly with over 300 user accounts and rising. The earliest rapid growth phase, during which I’ve acquired and configured the necessary back-end resources to host the instance and give it room to grow, is coming to a close, and I think it’s time to take a more mindful approach to the governance of this community. So I’m issuing a call for volunteers to help set up policies and governance structures to sustain the community for the long term.

This is not (yet) a request for financial support. The costs (in money) of running the Lawprofs instance are modest, and I am happy to continue bearing them until more permanent governance and funding institutions can be established. There may be a time when Lawprofs members are asked to contribute financially to the running of the instance, but now is not that time. Rather, I am calling on the expertise of our community members to help transition the instance from my own personal project into a self-sustaining, self-governing community. The expertise needed lies in several areas. If you have expertise in any of these areas and are willing to give a little of your time to help the Lawprofs community lay its foundations, please contact me:

  • Entity Formation, Governance, and Funding: At present the Lawprofs instance is, in essence, a group of accounts in my name at various online service providers based on the East Coast of the United States. Apart from the possibility of personal liability that I would like to avoid, this arrangement gives me sole authority and responsibility for managing the instance, which is not a role I have any desire to maintain. So we need some help either standing up appropriate legal entities to take responsibility for managing and funding the instance (and ensuring general legal compliance), or else we need to find a hybrid solution (such as the Open Collective project used by the Mastodon instance, or an institutional home in the legal academy or one of its governing bodies) to manage those aspects of the community’s existence. We will also need people willing to take responsibility for contributing to the management of the instance going forward.
  • Content Moderation: I set out a list of basic rules concerning content on the site when I founded the instance, and I defederated a number of notoriously abusive instances at the outset based on my own quick review of the #FediBlock list and the moderated server list. But as the community matures and forms connections with other instances we may want to revisit those choices, and we will need a more well-thought-through set of rules governing permissible and impermissible content on the site. We will also need volunteers to apply those rules when posts, users, or instances get flagged for moderation. (To give a sense of the scope of this task, we have had exactly two requests for moderation in the first three weeks of the instance’s existence; one involving a post by a member of our instance, and one involving an impersonation account on another instance). This aspect of community governance particularly requires evaluation from diverse perspectives, and I am hopeful that we will receive input from Lawprofs of various backgrounds on questions of content moderation.
  • Privacy Policy: Our privacy policy is currently the off-the-rack policy that is distributed with the Mastodon server software. It’s a fine standard privacy policy, but there may be issues that it does not cover, or that our community might want to address differently. Because our servers are based in the United States but serve accounts all over the world, this is an issue where input from Lawprofs from different jurisdictions will be especially helpful.
  • Intellectual Property (IP) Policy: One of the first steps I took upon founding the instance was to register as a DMCA agent and set up a Section 512 notice form to insulate myself from liability for copyright infringement by users who post on the instance (or whose posts on other instances are stored on our server). This is obviously primarily a US-oriented solution, and incomplete as a matter of IP policy (it does not, for example, establish in advance a policy governing repeat infringers). We must develop and implement more comprehensive IP policies to reduce the risk of liability for IP infringement in all the jurisdictions that might take an interest in activities by our users.
  • Protection Against Child Exploitation: This is not an issue I expect to require much attention given the user base of our instance, but we should develop policies and procedures to deal with the possibility that material posted on our instance (or stored on our server after being posted on other instances) might violate laws against child exploitation or trigger reporting requirements under those laws.
  • Other Terms of Service/Fair Trade Practices Issues: There may be other terms or disclosures that an online service provider such as Lawprofs would be well-advised to include in its governing policies. Lawprofs with expertise in online terms of service in various jurisdictions could be a big help in raising issues that aren’t already addressed elsewhere.
  • Back-End Management/Technical Expertise: Anyone with experience running a web server or with expertise on data security and best practices for a social media site could be a big help in sharing admin responsibilities with me for the servers themselves.
  • Membership Policies: I have developed a basic set of membership policies for the Lawprofs instance over time as people have asked to register accounts, both to maintain the thematic focus of the community and to manage costs and the strain on back-end resources. The community may wish to change these policies going forward. For present purposes, I have adopted four rules-of-thumb:
    • Members should generally be full-time legal academics; an affiliation (though not necessarily a permanent affiliation) with a law faculty must be provided and verified as a precondition of registration.
    • Adjunct faculty may register but are advised to first consider registering with other law-oriented instances that might be better suited to legal professionals who also happen to teach (such as,, and
    • Graduate students and recent graduates may not register unless they are already in a full-time post-degree program such as a teaching or research fellowship or Visiting Assistant Professorship.
    • Non-faculty staff at law schools and faculties may not register accounts, but institutions themselves (schools, departments, centers, etc.) may do so, and institutional accounts may be managed by non-faculty staff.

Those are the issues where the Lawprofs community can use your help. Again, if you think you have relevant expertise on any of these issues, and are willing to give a little of your time to help set the community up for the long term, please contact me.

In the meantime, you can find me on Mastodon.

Reciprocity Failures at IPSC 2022

Earlier this month at the annual Intellectual Property Scholars Conference, I presented a piece of my long-running book project, Valuing Progress. This piece deals with what I call Reciprocity Failures. Slides can be found here.

This part of the project is a window into its theoretical heart: the basic idea that when designing a legal or policy regime to govern the production and dissemination of new knowledge, we cannot have all the things we want. We have to choose, and accept that the choice will inevitably leave us disappointed in some ways. In the past, IP scholars have identified one such choice as a tradeoff between efficiency and fairness, or perhaps between incentives and access. But the challenges of value pluralism–the idea that values are plural and incommensurate–run deeper, to the very concept of fairness (or justice) itself. We may want to make sure that knowledge creators enjoy adequate material support in exchange for the knowledge they provide, and we may want to make sure that those who benefit from new knowledge contribute adequate resources to support its production, and we may want to make sure that those who contribute resources to the cause of knowledge production derive an adequate benefit therefrom. We may want to ensure that material support for knowledge creators is allocated based on desert rather than luck, and that access to new knowledge is not denied for arbitrary reasons. But even though all these goals may be implicated in our notions of fairness, we cannot serve them all at once. In pursuing any one of these diverse fairness-based values, we inevitably discard one or more others. This is a particular problem for knowledge governance regimes, because knowledge is both durable and cumulative–those who contribute to its production and those who enjoy its benefits may be separated by borders, or by culture, or even by lifetimes.

Valuing Progress got its start at IPSC several years ago when I thought it was just going to be an article. It has grown quite a bit since then, and parenting during the pandemic kept me from working on it much over the past few years. It feels really good to be flexing these muscles again after so long.

The Canada Trademarks Dataset

I’m happy to announce the publication (on open-access terms) of a new dataset I’ve been constructing over the past few months. The Canada Trademarks Dataset is now available for download on Zenodo, and a pre-publication draft of the paper describing it (forthcoming in the Journal of Empirical Legal Studies) is available on SSRN.

As I’m not the first to point out, doing any productive scholarly work during the pandemic has been hard, especially while caring for two young kids and teaching a combination of hastily-designed remote classes and in-person classes under disruptive public health restrictions. I have neglected other, more theoretical projects during the past year and a half because I simply could not find the sustained time for contemplation and working out of big, complex problems that such projects require. But building a dataset like this one is not a big complex problem so much as a thousand tiny puzzles, each of which can be worked out in a relatively short burst of effort. In other words, it was exactly the kind of project to take on when you could never be assured of having more than a 20 minute stretch of uninterrupted time to work. I’m very grateful to JELS for publishing the fruits of these fleeting windows of productivity.

More generally, the experience of having to prioritize certain research projects over others in the face of external constraints has made me grateful that I can count myself among the foxes rather than the hedgehogs of the legal academy. Methodological and ideological omnivorousness (or, perhaps, promiscuity) may not be the best way to make a big name for yourself as a scholar–to win followers and allies, to become the “go-to” person on a particular area of expertise, or to draw the attention of rivals and generate productive controversy. But it does help smooth out the peaks and troughs of professional life for those of us who just want to keep pushing our stone uphill using what skills we possess, hopeful that in the process we will leave behind knowledge from which others may benefit. That’s always been my preferred view of what I do for a living anyway: Il faut cultiver notre jardin.

Now In Print: Legal Sets

2019-07-25 12.20.52Published Version Available Here

Tenure has its privileges.

Three years ago, I posted on this site that I had spent the year prior working up a lengthy, dense draft of a deeply theoretical piece that had grown out of my noodling over a relatively small doctrinal question in trademark law. This draft was well outside of my usual wheelhouse: technical, philosophical, and abstract. It marked the beginning of what has now become a sharp pivot in my scholarly career, into more self-consciously philosophical investigations of the rules we impose on the creation and dissemination of knowledge.

Initially journals reacted coolly–which I can’t fault them for; the piece is long by law review standards and the framework is more technical and less accessible than standard law review fare. I took some time to get feedback from more accomplished legal theorists than myself, I revised the draft, and ultimately it found a home at the Cardozo Law Review, whose student editors worked hard to improve the piece and have now published Legal Sets in their June 2019 issue (which includes a number of other interesting pieces). All told, that means this project took four years to move from the question that first got me working on it to a final, published article. I am deeply cognizant of the tremendous privilege I enjoy in being able to earn a living by dedicating such a significant chunk of my life to this type of work, and I hope I’m making good on that privilege.

This is the kind of work–and the kind of departure from familiar subjects and methods–that I never would have attempted pre-tenure. The risk of failure was great; the opportunity costs were high, and the need to produce measurable outputs to get me through the next gate on my career path was too pressing. But you know, at the risk of tooting my own horn, I think this article is pretty good, and despite its theoretical cast I think it makes a real contribution to a sounder understanding of how law works in practice. So I come away from the experience of writing this piece with a renewed gratitude for the privilege of academic freedom and job security, and a renewed sense that the general absence of such freedom and security from our economy (outside of the shrinking rarefied precincts of the tenure-track academy) is almost surely holding our society back from its full potential.


New Draft: Jefferson’s Taper

Read Jefferson’s Taper on SSRN

A little less than a year ago, I made a startling discovery about Thomas Jefferson’s famous observation on the nature of ideas, which (he argued) spread like fire from one person to the next without diminishing the possession of anyone who shares them. As I discovered, Jefferson copied this metaphor from a nearly identical passage in Cicero’s De Officiis–a work of philosophy that was once one of the world’s most widely-read books, but which today few people have even heard of.  As I mined out the implications of Jefferson’s unattributed borrowing, I came to conclude that we have been misreading him for almost a hundred years. Rather than making a proto-utilitarian argument in favor of a limited system of patent rights, Jefferson was instead making a natural law argument–exactly the type of argument that his modern-day detractors rely on to support their policy prescriptions regarding the scope of intellectual property rights. And in fact, gaming out the implications of Jefferson’s natural law argument leads to the conclusion that knowledge creators may actually have some obligations to share their knowledge, rooted in a particular pre-Enlightenment conception of natural law and distributive justice.

Doing the work of fleshing out these implications required me to immerse myself in some old and (to me) unfamiliar philosophical sources for much of the past year. The result is the most “scholarly” work of scholarship I think I’ve ever produced: Jefferson’s Taper, now in draft on SSRN, and hopefully coming soon to a law review near you. This was a ton of fun to research and write; I think it is going to surprise a fair number of people. Comments, as always, are most welcome.

New Draft: Law and Philosophy in IP

I’ve just posted a draft of a new paper to SSRN on law and philosophy scholarship in intellectual property. It is my contribution to a forthcoming handbook from Oxford University Press, edited by Irene Calboli and Lillà Montagnani, on methodologies in IP research. Here’s the abstract:

Intellectual property (IP) law and philosophy is an interdisciplinary approach to scholarship that applies insights and methods from philosophy to the legal, normative, theoretical, political, and empirical questions presented by the project of organizing and regulating the creation and dissemination of knowledge, technology, and culture. In this chapter, I outline four types of IP-law-and-philosophy scholarship, focusing specifically on the discipline of analytic philosophy (with appropriate caveats about the coherence of that discipline). These modes of scholarship can be categorized as (1) the jurisprudence of the IP system, (2) philosophical analysis of IP law, (3) applied philosophy in IP, and (4) normative theory of IP. Category (4) is obviously a special case of category (3), focusing specifically on applications of moral philosophy. Within each category, I provide illustrative examples of past scholarship and suggestions for further research.

As always, comments are welcome.

Article V, the Senate, and the House of Lords Option

It is not news that the United States Senate is a deeply anti-democratic institution. With population shifts sorting whiter, older Americans into low-population states and younger, more diverse Americans into high-population states, the anti-democratic bent of the Senate is becoming a systematic bias that will soon have the effect of delivering a veto over federal legislation and executive and judicial appointments to an increasingly insular and cohesive racial and demographic minority. But people who should know better also say there’s nothing to be done about it, because Article V of the Constitution provides that the Amendment process is qualified to the extent that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.” We’re stuck with the anti-democratic Senate, the naysayers cluck, as if to think otherwise is hopelessly naive. Democracy in America was doomed from the start; the only way to fix it is to ditch the Constitution and start from scratch (and that’ll never happen anyway, so we may as well give up).

This defeatism does not befit a self-governing people. More importantly, it is hogwash. The Senate is not amendment-proof, and Americans who value democratic governance ought to be planning how best to do away with it. Any creative lawyer should be able to recognize that the supposed roadblock of Article V can be easily worked around. Article V says that no constitutional amendment can deprive any state of its equal vote in the Senate. It says nothing about how constitutional amendments may affect the powers of the Senate. If we can’t change who votes in the Senate, we can change what they get to vote on. And though such changes must clear the supermajority thresholds of the Article V amendment process, there are tools available to simple popular majorities to create the pressure necessary to clear such those thresholds. There is precedent for it, in fact: the United Kindgom followed this path a century ago.

First, we can dispense with the supposedly implacable Constitutional text. Article V poses no obstacle to amending the bicameralism requirement of Article I so as to make passage of bills by the House of Representatives sufficient to send a bill to the President for signature. It poses no obstacle to giving the House of Representatives (or some other body) the “advice and consent” responsibilities of the Senate over executive and judicial appointments, or the responsibility for ratifying treaties. It poses no obstacle to modifying the impeachment process so as to vest the power to remove federal officers in the House of Representatives alone, or to assign the trial of impeachments to some other body. There is literally nothing that the Senate does that cannot be assigned to some other institution by constitutional amendment. The fact that we would be left with 100 sinecures on the federal payroll is the only cost of such a strategy—and one that could be remedied by reducing the pay and staff of Senators in a manner consistent with the 27th Amendment’s limitations on varying the pay of legislators between elections.

But now, we come to the practical obstacles to amendment. Article V makes constitutional amendment very difficult. Supermajorities of both houses of Congress and super-duper-majorities of the state legislatures have to concur for such an amendment to pass. And it is difficult to imagine the states that benefit from having greater share of votes in the Senate than they would have in a proportionally apportioned legislature—which by definition constitutes a majority of the states—voluntarily giving those powers away. If the Constitution is to be amended to reallocate power away from the Senate, the states that stand to lose from such a reallocation need to have a reason to go along.

However, the Constitution also provides a vehicle to assert leverage over such states that does not require supermajority support: admitting new states. By an Act of Congress, new states can be admitted to the Union—with two new senators apiece and a vote on any proposed constitutional amendment. If an existing state consents by vote of its legislature, it can also be divided into multiple states by an Act of Congress; each new subdivided state would similarly be entitled to two senators and a vote on any constitutional amendment (application of this latter tool to sever Maine from Massachusetts was the key to the infamous Missouri Compromise). The Constitution imposes no population constraint on the creation of new states; my apartment can be a state if Congress certifies that it has “a republican form of government.” Many people have pointed out that a top priority for the next period of unified Democratic control over both houses of Congress and the White House should be statehood for Puerto Rico and Washington, DC; a few have gone so far as to toy with the “make more states” option. Serious action to ensure a democratically elected federal legislature will require a willingness to go much further: it will require a transparent agenda to “pack the Union.” This will require, at a minimum:

  • a publicly-stated willingness to create enough new states that will predictably commit to reducing the Senate’s powers to command the 3/4 supermajority required to pass a constitutional amendment, and
  • a credible and transparent plan to create these new states.

To implement such a plan would be clumsy, norm-breaking, logistically challenging. But it could be done, and it would not be extra-constitutional to do it. Most importantly, the willingness and ability to do it may make actually doing it unnecessary. That is, a credible threat to pack the Senate may be enough to fix—or effectively end—the Senate. We have good reason to think this, because such threats have been effective before—twice—in accomplishing very similar reforms in the United Kingdom.

The Liberal Party won a landslide in the UK parliamentary elections of 1906, and was (more narrowly) returned to government twice in two successive elections in 1910 on a platform of a progressive budget, home rule for Ireland, and substantial reforms to the House of Lords. The Lords, dominated by Conservatives, had consistently obstructed progressive budgets and other reform measures after the passage of such measures by the House of Commons–as well they might, given that the Liberal government proposed to curtail their power and tax their lands. But by threatening to pack the Lords with enough new Liberal-leaning peers to command a majority, Prime Minister H.H. Asquith ultimately succeeded in strong-arming the Lords into passing the Parliament Act 1911. The Act did to the House of Lords what a moderate pro-democracy reformer in America today might like to see done to the U.S. Senate: it effectively removed the Lords’ power to refuse passage of money bills, and effectively converted their power to refuse passage of other bills to a power to delay such bills for a maximum of two years. (The Parliament Act 1949 reduced the Lords’ power of delay over non-money bills from two years to one—and was enacted using the power of the Commons under the Parliament Act 1911 to pass bills without the Lords’ consent.) The Lords and their allies in the Commons complained bitterly, but ultimately, Conservative peers were put to the choice between giving some of the powers of their House to the Commons forever or losing all of the powers of their House to the Liberals for the foreseeable future, and chose the former.

Asquith’s threat to pack the peerage had precedent too: it was exactly the strategy used by the Whig Prime Minister Charles Grey to expand the franchise and meliorate the shameful malapportionment of the House of Commons with the passage of the Great Reform Act of 1832. Again, the threat to pack the Lords was was enough: the Tories who followed the Duke of Wellington, having successfully blocked Reform Bills for years, capitulated once they learned that William IV was (reluctantly) willing to support Lord Grey’s request to appoint a slew of Whig peers.

What I propose is not “One Simple Trick to Save American Democracy.” I do not mean to suggest that this type of reform was easy in the UK, or that it will be easy in the United States. 18th-19th Century Whigs and 19th-20th Century Liberals had to build a popular movement committed to their reforms, then consistently win elections on the strength of that movement for several years, and ultimately see their democratically validated demands repeatedly rebuffed by anti-democratic institutions before the continued pressure to accede to those demands became irrepressible. In the Whigs’ case, that pressure included the mass violence of the Swing Riots and the Days of May: the closest Britain ever came to a violent popular revolution. The Liberals pushed through the Parliament Act 1911 without such violent uprisings, but with the crucial support of two factions that were structurally underrepresented in the electorate and deeply associated with the threat of such violence in the minds of the English Conservative establishment: Irish nationalists and organized labor.

I do not mean to issue a call to political violence, but I do mean to be clear that the mere availability of constitutional tools for democratic reform will never be sufficient to overcome constitutionally empowered anti-democratic institutions opposed to such reforms. Nor will asking politely and waiting patiently. There must be a credible threat of constitutional norm-breaking in order to use such tools effectively; and such a threat is only credible (and warranted) when supported by persistent, well-organized, and genuinely popular movements that in turn back up the threat of constitutional norm-breaking with the prospect of deep social dissolution if anti-democratic institutions do not accede to democratic demands. Ominously, anti-democratic elites must also be sufficiently sensitive to the risks of social dissolution that they will recognize when their resistance to democratic reform has become untenable. Deep constitutional traditions of royal deference to electoral results (informed by the violent origins and tenuous foundations of constitutional monarchy) in eras of global social transformation did the trick for William IV, Edward VII, and George V; it isn’t at all clear that our anti-democratic elites are sensitive to such considerations.

But the fact that democratic reform is hard is no excuse for not putting in the work to make it happen. Precedent for de-fanging the reactionary and anti-democratic “upper” house of a national legislature is readily available—and it has been proven to be both durable and, ultimately, extremely popular. There is no reason why the United States should be a century behind the United Kingdom in reforming its national legislature to align with democratic principles. Americans who take democracy seriously should be mobilizing to support a credible threat of packing the Senate, as a second-best alternative to amending the Constitution to remove its powers. They should be making plans to admit new states and divide existing states so as to assure passage of constitutional amendments reallocating the Senate’s powers to other institutions. And they should be explicitly including these plans in their agendas and platforms, and be prepared to organize and mobilize voters to support these plans consistently and strategically over a long period of time. And they should, ultimately, be prepared to forego the implementation of such plans only if those who benefit from the anti-democratic structure of the Senate act to relinquish those benefits.