Intellectual property (IP) is a legal framework associated with economic rationality and that is ... more Intellectual property (IP) is a legal framework associated with economic rationality and that is supposedly neutral toward diverse manifestations of sexuality, gender identities, and unorthodoxy in the cultural landscape. But is that the case? This Article proposes a queer analysis of IP, asserting that IP is a major mechanism through which sexuality, gender, citizenship, and normativity are institutionalized and hierarchized in cultural and social life. Applying two interconnected methodologies-examining creative spaces in which queer creativity thrives, including drag, fanfiction, and the Queercore punk subculture, and appraising several IP doctrines through a queer theory lens-this Article demonstrates how queer creative communities organize and resist IP and mainstream culture and illustrates how IP law institutionalizes hegemonic notions of normativity, sexuality, and culture. This Article also exposes a counterintuitive nexus between IP law and queer theory, showing that while IP structures a hegemonic culture, it simultaneously defines a field of marginal cultural production based on a rejection of IP's rules and aesthetics. This Article then suggests a reparative reading of queer theory and IP, holding that queering IP allows us to better appreciate the value of queer theory and queer creativity to wider discourses around normativity and meaning, as well as to promote diversity and visibility of nonconforming sexualities and identities in cultural and social life.
According to popular and scholarly belief, video killed the radio star. The golden age of radio, ... more According to popular and scholarly belief, video killed the radio star. The golden age of radio, culminating in the 1930s and 1940s, was gone with the rise of television in the 1950s and 1960s. In this Article, we advance the claim that television’s role in the “death” of the radio star has been more limited than commonly believed. A major culprit, we argue, is the common licensing practice of musical content for broadcasting, or more precisely, the blanket license issued by copyright collective management organizations (CMOs). By setting a zero marginal price for broadcasting additional songs from the CMO’s repertoire, CMOs’ blanket licensing drives commercial radio stations to dedicate a larger portion of their programming to the broadcasting of recorded songs and to reduce the time and resources spent on producing or procuring other content.
This Article makes three main contributions to three fields: competition law and policy; copyright law and policy; and cultural history. For competition law and policy, this Article reveals that the analysis of blanket licenses should not be limited to their static effects (i.e., the trade-off between lower transaction costs and supra-competitive pricing), but should also include the dynamic effect of blanket licensing on the type and quality of content production. This dynamic effect also poses a challenge for copyright law and policy: while collective licensing may be beneficial to one class of copyright holders, it may hinder the production of other content and harm creators of such content, by depriving them of important opportunities for market and cultural participation. Regarding cultural history, our Article provides a novel explanation for the well-documented phenomenon of the “death” of the radio star and re-evaluates some of the existing explanations. Finally, we discuss some alternative models for music licensing that can mitigate the distortion created by blanket licenses.
Most authors of legal scholarship would probably hesitate to describe their writings as heroic ta... more Most authors of legal scholarship would probably hesitate to describe their writings as heroic tales of (intellectual) conquest and adventure. They would also most likely deny that they are unreliable storytellers. Equally, conventional accounts of legal scholarship tend to view legal scholarship as lacking common structure. This article challenges these assumptions by offering a novel aesthetic perspective on legal writing. We argue that most legal essays are modeled on a narrative device known as “the hero’s journey,” in which a protagonist (the scholar) overcomes a particularly frightening menace (the legal problem), and returns home with the bounty (the legal solution). However, there’s a twist: legal theorists are institutionally conditioned to treat this story suspiciously, looking for false and misleading features, thus (perhaps unconsciously) treating the narrator as unreliable. By exposing these common literary patterns this essay also reveals a unique and as-of-yet unexplored trade-off between two different qualities of legal scholarship: the more unreliable the reader finds the legal article, the greater aesthetic pleasure she derives therefrom. Consequently, many legal articles are, in a way, beautiful failures. That is, unsuccessful attempts to convince their reader in the truth of their thesis that nevertheless resonate with their readers aesthetically. This essay explores these ideas and explains their implications both from a law & literature and a philosophical perspective.
The international legal regime aimed at the protection and governance of underwater cultural heri... more The international legal regime aimed at the protection and governance of underwater cultural heritage is facing substantial strife. Unauthorized salvage and looting are a continuing threat. Additional challenges include disputes between post-colonies and post-colonial powers over title to sunken vessels, lack of a global policy for the protection of underwater gravesites, and the exploitation of underwater cultural heritage as a means to claim disputed territory. Considerable time has passed since the signing (2001) and entry into force (2009) of the UNESCO Convention on the Protection of the Underwater Cultural Heritage. Notable maritime powers refused to sign the Convention because they were concerned that it would erode international law principles, particularly marine jurisdiction and state-owned vessels' immunity. The article revisits the maritime powers' reservations and maintains that in practice these concerns did not materialize. It then demonstrates that the Convention is well suited to facing the current challenges to international underwater cultural heritage governance.
Florida International University Law Review , 2014
The paper is an empirical study of the way drag queens protect their intellectual property withou... more The paper is an empirical study of the way drag queens protect their intellectual property without reverting to formal intellectual property law. It identifies that substituting for the law is a double-layered social norm system devised by the queens in which the creators (the queens) as well as the users of the domain influence its norms and enforcement. The paper outlines the incentives that queens have for creating drag; the unique social structure and the distinctive subject matter of the domain; and the special relationships that the queens have with their audience. It holds, that this structure allows for the creation of a well tailored and functioning social norms system. The paper delineates the reasons why intellectual property law cannot accommodate for the queen's creations; and it presents the norm system the queens developed in order to prevent appropriation. The paper outlines the advantages of the social norms system – a structured, better tailored and flexible ordering regime; as well as possible disadvantages such as lack of IP policy and concerns regarding powerful guilds blocking creativity. The paper also addresses the idea of a creative domain that wishes to challenge law, rather than become a part of it. The paper concludes that the drag domain holds important lessons for the general intellectual property discourse
Intellectual property (IP) is a legal framework associated with economic rationality and that is ... more Intellectual property (IP) is a legal framework associated with economic rationality and that is supposedly neutral toward diverse manifestations of sexuality, gender identities, and unorthodoxy in the cultural landscape. But is that the case? This Article proposes a queer analysis of IP, asserting that IP is a major mechanism through which sexuality, gender, citizenship, and normativity are institutionalized and hierarchized in cultural and social life. Applying two interconnected methodologies-examining creative spaces in which queer creativity thrives, including drag, fanfiction, and the Queercore punk subculture, and appraising several IP doctrines through a queer theory lens-this Article demonstrates how queer creative communities organize and resist IP and mainstream culture and illustrates how IP law institutionalizes hegemonic notions of normativity, sexuality, and culture. This Article also exposes a counterintuitive nexus between IP law and queer theory, showing that while IP structures a hegemonic culture, it simultaneously defines a field of marginal cultural production based on a rejection of IP's rules and aesthetics. This Article then suggests a reparative reading of queer theory and IP, holding that queering IP allows us to better appreciate the value of queer theory and queer creativity to wider discourses around normativity and meaning, as well as to promote diversity and visibility of nonconforming sexualities and identities in cultural and social life.
According to popular and scholarly belief, video killed the radio star. The golden age of radio, ... more According to popular and scholarly belief, video killed the radio star. The golden age of radio, culminating in the 1930s and 1940s, was gone with the rise of television in the 1950s and 1960s. In this Article, we advance the claim that television’s role in the “death” of the radio star has been more limited than commonly believed. A major culprit, we argue, is the common licensing practice of musical content for broadcasting, or more precisely, the blanket license issued by copyright collective management organizations (CMOs). By setting a zero marginal price for broadcasting additional songs from the CMO’s repertoire, CMOs’ blanket licensing drives commercial radio stations to dedicate a larger portion of their programming to the broadcasting of recorded songs and to reduce the time and resources spent on producing or procuring other content.
This Article makes three main contributions to three fields: competition law and policy; copyright law and policy; and cultural history. For competition law and policy, this Article reveals that the analysis of blanket licenses should not be limited to their static effects (i.e., the trade-off between lower transaction costs and supra-competitive pricing), but should also include the dynamic effect of blanket licensing on the type and quality of content production. This dynamic effect also poses a challenge for copyright law and policy: while collective licensing may be beneficial to one class of copyright holders, it may hinder the production of other content and harm creators of such content, by depriving them of important opportunities for market and cultural participation. Regarding cultural history, our Article provides a novel explanation for the well-documented phenomenon of the “death” of the radio star and re-evaluates some of the existing explanations. Finally, we discuss some alternative models for music licensing that can mitigate the distortion created by blanket licenses.
Most authors of legal scholarship would probably hesitate to describe their writings as heroic ta... more Most authors of legal scholarship would probably hesitate to describe their writings as heroic tales of (intellectual) conquest and adventure. They would also most likely deny that they are unreliable storytellers. Equally, conventional accounts of legal scholarship tend to view legal scholarship as lacking common structure. This article challenges these assumptions by offering a novel aesthetic perspective on legal writing. We argue that most legal essays are modeled on a narrative device known as “the hero’s journey,” in which a protagonist (the scholar) overcomes a particularly frightening menace (the legal problem), and returns home with the bounty (the legal solution). However, there’s a twist: legal theorists are institutionally conditioned to treat this story suspiciously, looking for false and misleading features, thus (perhaps unconsciously) treating the narrator as unreliable. By exposing these common literary patterns this essay also reveals a unique and as-of-yet unexplored trade-off between two different qualities of legal scholarship: the more unreliable the reader finds the legal article, the greater aesthetic pleasure she derives therefrom. Consequently, many legal articles are, in a way, beautiful failures. That is, unsuccessful attempts to convince their reader in the truth of their thesis that nevertheless resonate with their readers aesthetically. This essay explores these ideas and explains their implications both from a law & literature and a philosophical perspective.
The international legal regime aimed at the protection and governance of underwater cultural heri... more The international legal regime aimed at the protection and governance of underwater cultural heritage is facing substantial strife. Unauthorized salvage and looting are a continuing threat. Additional challenges include disputes between post-colonies and post-colonial powers over title to sunken vessels, lack of a global policy for the protection of underwater gravesites, and the exploitation of underwater cultural heritage as a means to claim disputed territory. Considerable time has passed since the signing (2001) and entry into force (2009) of the UNESCO Convention on the Protection of the Underwater Cultural Heritage. Notable maritime powers refused to sign the Convention because they were concerned that it would erode international law principles, particularly marine jurisdiction and state-owned vessels' immunity. The article revisits the maritime powers' reservations and maintains that in practice these concerns did not materialize. It then demonstrates that the Convention is well suited to facing the current challenges to international underwater cultural heritage governance.
Florida International University Law Review , 2014
The paper is an empirical study of the way drag queens protect their intellectual property withou... more The paper is an empirical study of the way drag queens protect their intellectual property without reverting to formal intellectual property law. It identifies that substituting for the law is a double-layered social norm system devised by the queens in which the creators (the queens) as well as the users of the domain influence its norms and enforcement. The paper outlines the incentives that queens have for creating drag; the unique social structure and the distinctive subject matter of the domain; and the special relationships that the queens have with their audience. It holds, that this structure allows for the creation of a well tailored and functioning social norms system. The paper delineates the reasons why intellectual property law cannot accommodate for the queen's creations; and it presents the norm system the queens developed in order to prevent appropriation. The paper outlines the advantages of the social norms system – a structured, better tailored and flexible ordering regime; as well as possible disadvantages such as lack of IP policy and concerns regarding powerful guilds blocking creativity. The paper also addresses the idea of a creative domain that wishes to challenge law, rather than become a part of it. The paper concludes that the drag domain holds important lessons for the general intellectual property discourse
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Papers by Eden Sarid
This Article makes three main contributions to three fields: competition law and policy; copyright law and policy; and cultural history. For competition law and policy, this Article reveals that the analysis of blanket licenses should not be limited to their static effects (i.e., the trade-off between lower transaction costs and supra-competitive pricing), but should also include the dynamic effect of blanket licensing on the type and quality of content production. This dynamic effect also poses a challenge for copyright law and policy: while collective licensing may be beneficial to one class of copyright holders, it may hinder the production of other content and harm creators of such content, by depriving them of important opportunities for market and cultural participation. Regarding cultural history, our Article provides a novel explanation for the well-documented phenomenon of the “death” of the radio star and re-evaluates some of the existing explanations. Finally, we discuss some alternative models for music licensing that can mitigate the distortion created by blanket licenses.
This Article makes three main contributions to three fields: competition law and policy; copyright law and policy; and cultural history. For competition law and policy, this Article reveals that the analysis of blanket licenses should not be limited to their static effects (i.e., the trade-off between lower transaction costs and supra-competitive pricing), but should also include the dynamic effect of blanket licensing on the type and quality of content production. This dynamic effect also poses a challenge for copyright law and policy: while collective licensing may be beneficial to one class of copyright holders, it may hinder the production of other content and harm creators of such content, by depriving them of important opportunities for market and cultural participation. Regarding cultural history, our Article provides a novel explanation for the well-documented phenomenon of the “death” of the radio star and re-evaluates some of the existing explanations. Finally, we discuss some alternative models for music licensing that can mitigate the distortion created by blanket licenses.