Recently, the United Kingdom Supreme Court decided that only natural persons can be considered inventors. A year before, the United States Court of Appeals for the Federal Circuit issued a similar decision. In fact, so have many the courts all over the world. This Article analyses these decisions, argues that the courts got it right, and finds that artificial inventorship is at odds with patent law doctrine, theory, and philosophy. The Article challenges the intellectual property (IP) post-humanists, exposing the analytical (...) and normative perils of their argumentation, and recommends against getting rid of the nominally central place of humans in the law. This response to IP post-humanism rests in equal measure on patent doctrine, legal causation, and the mythology which creates and justifies the law. (shrink)

Several states have enacted specialized limited liability company legislation in an attempt to attract decentralized autonomous organizations. In this way, the regulatory competition debate surrounding states such as Wyoming, Tennessee, and Vermont, attempting to dethrone Delaware, has found a new battleground. According to Professor Lynn LoPucki, this will entail a regulatory race to the bottom, that is, a race to “laxity.” I disagree. In fact, deregulation has already been achieved in the traditional limited liability company form. The decentralized autonomous organization (...) limited liability company is no laxer or more attractive to investors, who will likely prefer the traditional limited liability company or even other entity forms, given the diversity of investors’ needs and aims. Moreover, some decentralized autonomous organization organizers may wish not to incorporate at all, hoping to avoid the law altogether. While increasingly risky, this strategy rests on the belief in the alegality liability shield, further diminishing the impact of the lex specialis approach. After analyzing the statutory developments and the scholarly and industrial commentary, I conclude that in decentralized autonomous organizations, as elsewhere, the regulatory race to the bottom is a fad. (shrink)

Authors have written of antitrust’s demise in the face of blockchain technology which, supposedly, achieves the goals of the law, through private ordering, without a need for the law. Most importantly of all, public permissionless blockchains offer the vision of disintermediation – the end of the platform economy troubling many scholars today. At the same time, blockchain technology presents challenges to the doctrine and enforcement of antitrust. Finally, blockchain community governance allows for private ordering of antitrust, i.e., enforcement of rules (...) attempting to protect competition, which are at the same time illegal, not coming from the courts or agencies they constitute competition wrongs themselves. -/- I argue that all three claims are overstated and propose a synthesis of the law and code. The legal doctrine can be modified to tackle the novel technological landscape quite easily, with adoption of novel legal fictions. This is necessary since blockchains – both public and even more so private ones – while ingenious, do not remove a need for the law to protect the market from anti-competitive conduct. Indeed, even public ledgers have power structures allowing for abuse, while private blockchains may, in fact, allow for its proliferation. The law, thus, needs to find a regulatory access point to the ledgers. This is not an easy task: however, cooperation of blockchains with the law, and encoding of antitrust rules on the ledgers themselves, offers a possibility of a reconciliation between the law and the code. At the same time, this lends legitimacy to pro-competitive actions of those cyberspace communities and ensures a preservation of the rule of law. This is the blockchain antitrust synthesis. (shrink)

Protection of emergent works is impossible. Without an author, there is no expression of ideas which can be original, and thus no copyrightable work. Indeed, the whole system of copyright law, its conceptual building blocks of idea-expression dichotomy, originality, authorship, and the concept of a protectable work operate in the notation of human creativity. Emergent works fall outside of copyright’s positive ontology, being akin to ideas, facts, or subject-matter predicated by technical considerations, rather than authorial creativity. In other words, they (...) do not exist as things in law and thus cannot as such be owned. Rather, like any idea, they can be transformed through creative expression of an author–– possibly becoming works, but also not being authorless or emergent anymore. This is argued as a matter of the U.S. and EU legal doctrines, the international framework, and copyright theory. (shrink)