Published in the August 31, 2010 edition of the Federalist Society’s Engage magazine. Excerpt:
The law and business of intellectual property are in upheaval today. Essentially, the concepts that underlay the conceptual, statutory, and judicial schemas that govern each of patent, trademark and copyright are rapidly being overwhelmed by technologies that could not have been foreseen even half a generation ago, much less when the roots of the legal doctrines surrounding each of these types of IP protection and the economic models on which they are premised took hold. The purpose of this essay is to consider one of these areas in particular, namely trademark, and to focus in particular on how developments in copyright arising from the new digital media have affected this area of law. I argue that a series of legal developments has turned an area of law historically meant to shield consumers from non-authentic merchandise and preserve entrepreneurial investments in “brands” into a weapon to stifle competition and protect entrenched, inefficient business models. These developments have taken trademark law far beyond the language of the Lanham Act, the modern trademark statute, into a world where judges have not feared to tread and “make policy” affecting broad areas of economic activity to Congress’s silent assent.
You can download the whole piece at the Federalist Society website here.