Wendy J. Gordon

William Fairfield Warren Distinguished Professor

Professor of Law

BA with distinction in all subjects, Cornell University
JD, University of Pennsylvania

Areas of Interest
Economics & Law, Intellectual Property, Jurisprudence, Torts
Contact
Biography

Wendy J. Gordon has taught at Boston University since 1993, having taught at Rutgers, Georgetown, University of Michigan and other schools before arriving here. Her scholarship utilizes economics as well as ethics and analytic philosophy to understand copyright, trademark, and related forms of intellectual property. She is probably best known for her analyses of copyright’s “fair use” doctrine and of John Locke’s theory of property. For fair use, she shows that the supposedly puzzling doctrine responds well to practical and normative defects in markets. As for Locke, his historic property theory is commonly understood as implicitly justifying broad intellectual property rights, but Gordon shows how Locke’s logic instead justifies broad free speech liberties and only intellectual property rights that are remarkably narrow.

Professor Gordon enjoys interdisciplinary teaching as well as interdisciplinary scholarship. At BU she has co-taught a course in law and literature with a literary critic, a course on political theory with a philosopher, and a course on ‘copyright and rhetoric’ with a Shakespearean actor.

Professor Gordon’s current scholarly project builds on her hypothesis that copyright infringement can be usefully understood as a mirror-image of the law of accidental injury. Both copyright liability and the personal-injury tort of “negligence” can be seen as modes of improving private decision-making: The threat of negligence liability decreases careless behavior by making appropriate actors know they will bear some cost of the harm they cause. Conversely, the promise of copyright liability increases creative behavior by enabling appropriate actors to capture some profit from the benefits they generate.

Professor Gordon has co-authored two books on the economics of copyright, published numerous law journal articles, and written book chapters on copyright issues, free speech, computer copyright, and the fair use doctrine. She serves on the editorial board of the European Journal of Law and Economics. The US Supreme Court has three times cited her scholarship. She has received a Fulbright scholar, was elected by Oxford’s St. John’s College to a Visiting Senior Research Fellowship, and was selected as a resident at the Rockefeller Foundation retreat in Bellagio. Professor Gordon has also been the Bacon-Kilkenny Distinguished Visitor at Fordham, a Visiting Fellow at Oxford’s Programme in Comparative Media Law and Policy, and the “Intellectual Property Distinguished Visitor” at the Lewis and Clark Law School. She has twice served as the Chair of the Association of American Law Schools Section on Intellectual Property.

Publications
  1. Wendy J. Gordon, "Copyright Owners' Putative Interests in Privacy, Reputation, and Control: A Reply to Goold," 103 Virginia Law Review Online 36 (2017).
    Publisher
  2. Wendy J. Gordon, "How Oracle Erred: The Use/Explanation Distinction and the Future of Computer Copyright," in Copyright Law in an Age of Limitations and Exceptions 375, Ruth L. Okediji, ed., Cambridge University Press (2017). Publisher | ResearchGate | BU
  3. Wendy J. Gordon, "Copyright and Tort as Mirror Models: On Not Mistaking for the Right Hand What the Left Hand is Doing," in Comparative Law and Economics 311, Giovanni B. Ramello & Theodore Eisenberg, eds., Edward Elgar Publishing (2016). Publisher
  4. Wendy J. Gordon, "The Core of Copyright: Authors, Not Publishers," in Symposium Recalibrating Copyright: Continuity, Contemporary Culture, and Change, 52 Houston Law Review 613 (2014-15).
    HeinOnline (BU) | HeinOnline
  5. Wendy J. Gordon, "The Fair Use Doctrine: Markets, Market Failure and Rights of Use," in Handbook on the Economics of Copyright: A Guide for Students and Teachers 77, Richard Watt, ed., Edward Elgar Publishing (2014).
  6. Wendy J. Gordon, "The Concept of 'Harm' in Copyright," in Intellectual Property and the Common Law 452, Shyamkrishna Balganesh, ed., Cambridge University Press (2013). SSRN
  7. Wendy J. Gordon, "Dissemination Must Serve Authors: How the U.S. Supreme Court Erred," 10 Review of Economic Research on Copyright Issues 1 (2013).
    SSRN
  8. Wendy J. Gordon, "The Lost Logic of Deterrence: When ‘Sending A Message’ To The Masses Outstrips Fairness," COGNOSCENTI (Jul 11, 2013).
    Publisher
  9. Wendy J. Gordon, "Fair Use Markets: On Weighing Potential License Fees," in Symposium Celebrating the Fourteenth Anniversary of Justice Breyer's Article: The Uneasy Case for Copyright: Supporting Creativity and its Dissemination: Alternative Ends, Alternative Means, 79 George Washington Law Review 1814 (2011).
    HeinOnline (BU) | HeinOnline
  10. Wendy J. Gordon, "Current Patent Laws Cannot Claim the Backing of Human Rights," in Intellectual Property and Human Rights: A Paradox 155, Willem Grosheide, ed., Edward Elgar (2010). Publisher
  11. Wendy J. Gordon, "Discipline and Nourish: On Constructing Commons," 95 Cornell Law Review 733 (2010). [Response]
  12. Wendy J. Gordon, S. Scafidi, Orit Fischman Afori, Mark Janis & Jonathan Moskin, "The Global Contours of IP Protection for Trade Dress, Industrial Design, Applied Art, and Product Configuration," in Symposium Functionality: At the Crossroads of IP, 20 Fordham Intellectual Property, Media & Entertainment Law Journal 795 (2010). [Panel Discussion]
    Publisher
  13. Wendy J. Gordon, "Harmless Use: Gleaning from Fields of Copyrighted Works," in Symposium When Worlds Collide: Intellectual Property at the Interface Between Systems of Knowledge Creation, 77 Fordham Law Review 2411 (2009).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  14. Wendy J. Gordon, "Trespass-Copyright Parallels and the Harm-Benefit Distinction," 122 Harvard Law Review Forum (2009).
    Westlaw | Publisher | Lexis Advance
  15. Wendy J. Gordon, "Moral Philosophy, Information Technology, and Copyright," in Information Technology and Moral Philosophy 270, Jeroen van den Hoven & John Weckert, eds., Cambridge University Press (2008).
  16. Wendy J. Gordon, "Ronald Coase," in The New Oxford Companion to Law, Peter Cane & J. Conaghan, eds., Oxford University Press, 147 (2008).
  17. Wendy J. Gordon, "The 'Why' of Markets: Copyright and Fair Use," 116 Yale Law Journal Pocket Part 371 (2007).
    Westlaw | Publisher | Lexis Advance | BU
  18. Wendy J. Gordon & Daniel Bahls, "The Public's Right to Fair Use: Amending Section 107 to Avoid the 'Fared Use' Fallacy," in Symposium on Fixing Copyright, 2007 Utah Law Review 619 (2007).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  19. Wendy J. Gordon, "Copyright Norms and the Problem of Private Censorship," in Copyright and Free Speech: Comparative and International Analyses 67, Jonathan Griffiths & U. Suthersanen, eds., Oxford University Press (2005).
  20. Developments in the Economics of Copyright: Research and Analysis, Wendy J. Gordon, Lisa N. Takeyama & Ruth Towse, eds., Edward Elgar Publishing (2005).
    Publisher
  21. Wendy J. Gordon & Lois Wasoff, "Even Non-Extremists Get the Blues: The Rhetoric of Copyright," in An Unhurried View of Copyright Republished (and with Contributions from Friends) GORWAS-1, B. Kaplan, Arthur R. Miller & I. C. Geik, eds., Matthew Bender (2005).
  22. Wendy J. Gordon, "Fair Use: Threat or Threatened?" in Symposium on Copyright and Personal Copying: Sony v. Universal Studios Twenty-one Years Later, 55 Case Western Reserve Law Review 903 (2005). [Keynote]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  23. Wendy J. Gordon, "Do We Have a Right to Speak with Another's Language? Eldred and the Duration of Copyright," in Copyright and Human Rights 109, Paul L. C. Torremans, ed., Kluwer Publishing (2004). Reprinted in 2 The Political Economy of Intellectual Property Rights 526, Christopher May, ed., Edward Elgar Publishing Limited (2010).
  24. Wendy J. Gordon, "Render Copyright unto Caesar: On Taking Incentives Seriously," 71 University of Chicago Law Review 75 (2004). Republished as: "Dati Caru Njegovo Autorsko Pravo: O Ozbiljnom Shva Anju Poticaja," translated by Zeljko Mrsic, Nov-um (2008). [Croatian]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  25. Wendy J. Gordon, "Copyright As Tort Law's Mirror Image: 'Harms', 'Benefits', and the Uses and Limits of Analogy," 34 McGeorge Law Review 533 (2003). Reprinted in 2 ICFAI Journal of Intellectual Property Rights 29 (2003), revision reprinted in 3 ICFAI Journal of Intellectual Property Rights, No. 2 (May 2004).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  26. The Economics of Copyright: Developments in Research and Analysis, Wendy J. Gordon & Richard Watt, eds., Edward Elgar Publishing (2003).
    Publisher
  27. Wendy J. Gordon, "Excuse and Justification in the Law of Fair Use: Transaction Costs Have Always Been Only Part of the Story," 50 Journal of the Copyright Society of the U.S.A. 149 (2003).
    Westlaw
  28. Wendy J. Gordon, "Intellectual Property Law," in Oxford Handbook of Legal Studies, Peter Cane & Mark Tushnet, eds., Oxford University Press, 617 (2003). Republished in Japanese, Tanabe Hideyuki, translator, 11 The Journal of Intellectual Property Law and Policy [Chitekizaisan Ho-seisakugaku Kenkyu] 1 (2006).
    BU
  29. Wendy J. Gordon, "Authors, Publishers and Public Goods: Trading Gold for Dross," in Symposium on Eldred v. Ashcroft, 36 Loyola of Los Angeles Law Review 159 (2002).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  30. Wendy J. Gordon, "Comment on Data Protection Statutes and Bioinformatic Databases," 8 Boston University Journal of Science and Technology Law 180 (2002).
  31. Wendy J. Gordon, "Excuse and Justification in the Law of Fair Use: Commodification and Market Perspectives," in The Commodification of Information 149, N. Elkin-Koren & N. W. Netanel, eds., Kluwer Law International (2002). Reprinted and updated in ICFAI Intellectual Property Rights Journal (forthcoming).
  32. Wendy J. Gordon, "Market Failure and Intellectual Property: A Response to Professor Lunney," 82 Boston University Law Review 1031 (2002).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  33. Wendy J. Gordon, "Commentary on Economic and Ethical Reasons for Protecting Data," in International Intellectual Property Law and Policy 76-1, H. C. Hansen, ed., Juris Publishing (2001).
  34. Wendy J. Gordon & Tamar Frankel, "Introduction," in Symposium on Trust Relationships, 81 Boston University Law Review 321 (2001).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  35. Wendy J. Gordon et al., "The Constitutionality of Copyright Term Extension: How Long is Too Long?" in Symposium on Copyright Term Extension, 18 Cardozo Arts and Entertainment Law Journal 651 (2000).
    Westlaw | Lexis Advance
  36. Wendy J. Gordon & Robert G. Bone, "Copyright," in Encyclopedia of Law and Economics, B. Bouckaert & Gerrit De Geest, eds., Edward Elgar, 189 (2000). Reprinted in The Economics of Intellectual Property, R. Towse & R. W. Holzhauer eds., Edward Elgar Publishing (2002).
  37. Wendy J. Gordon, "Copyright and Parody: Touring the Certainties of Property and Restitution," in Certitudes Du Droit (Certainty and the Law) , Ejan Mackaay, ed., Themis Publishing (2000).
  38. Wendy J. Gordon, "Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction," 66 Brooklyn Law Review 473 (2000).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  39. Wendy J. Gordon, "Introduction," in Symposium on Ralph Sharp Brown, Intellectual Property, and the Public Interest, 108 Yale Law Journal 1611 (1999).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  40. Wendy J. Gordon, "Intellectual Property as Price Discrimination: Implications for Contract," in Symposium on the Internet and Legal Theory, 73 Chicago-Kent Law Review 1367 (1998). Reprinted in Intellectual Property Rights: Critical Concepts in Law, David Vaver, ed., Routledge (2006).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  41. Wendy J. Gordon & Sam Postbrief, "On Commodifying Intangibles," review of James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society, Harvard University Press (1996) and Margaret Jane Radin, Contested Commodities, Harvard University Press (1996), 10 Yale Journal of Law and the Humanities 135 (1998). Westlaw | Lexis Advance
  42. Wendy J. Gordon, "On the Economics of Copyright, Restitution and 'Fair Use': Systemic Versus Case-by-Case Responses to Market Failure," 8 Journal of Law and Information Science 7 (1997).
    HeinOnline (BU) | HeinOnline
  43. Wendy J. Gordon, Article on Intellectual Property in Careers and the Minority Lawyer 32 (1996).
  44. Wendy J. Gordon, "Norms of Communication and Commodification," 144 University of Pennsylvania Law Review 2321 (1996).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  45. Wendy J. Gordon, "Assertive Modesty: An Economics of Intangibles," in Symposium Toward a Third Intellectual Property Paradigm, 94 Columbia Law Review 2579 (1994).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  46. Wendy J. Gordon, "Counter-Manifesto: Student-Edited Reviews and the Intellectual Properties of Scholarship," 61 University of Chicago Law Review 541 (1994).
    Westlaw | HeinOnline (BU) | HeinOnline
  47. Wendy J. Gordon & Tamar Frankel, "Enforcing Coasian Bribes for Non-Price Benefits: A New Role for Restitution," 67 Southern California Law Review 1519 (1994). Reprinted in Restitution 347, Lionel D. Smith, ed., Ashgate Publishing (2001).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  48. Wendy J. Gordon & A. Gowen, "Mandated Access: Commensurability and the Right to Say 'No'," 17 Hastings Communications and Entertainment Law Journal 225 (1994).
    Westlaw | HeinOnline (BU) | HeinOnline
  49. Wendy J. Gordon, "Systemische und fallbezogene Losungsansatze fur Marktversagen bei Immaterialgutern (Systemic and Case-by-Case Responses to Failures in Markets for Tangible Goods)," in Okonomische Analyse der Rechlichen Organisation von Innovationen , C. Ott & H. Schafer, eds., Verlag Mohr and Siebeck (1994). [German] [translated by Elisabeth Haberfellner]
  50. Wendy J. Gordon, "Virtual Reality, Appropriation, and Property Rights in Art: A Roundtable Discussion," 13 Cardozo Arts and Entertainment Law Journal 89 (1994). [Moderator]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  51. Wendy J. Gordon, "Preface," in Symposium on Intellectual Property Law Theory, 68 Chicago-Kent Law Review 583 (1993). [co-editor]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  52. Wendy J. Gordon, "A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property," 102 Yale Law Journal 1533 (1993). Republished in translation by X. Shanshan & Wangsui, under the direction of Professor Li Yang, Private Law (2008). [Chinese]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  53. Wendy J. Gordon, "Truth and Consequences: The Force of Blackmail's Central Case," 141 University of Pennsylvania Law Review 1741 (1993).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  54. Wendy J. Gordon, "Asymmetric Market Failure and Prisoner's Dilemma in Intellectual Property," 17 University of Dayton Law Review 853 (1992). Translated and published as "Fallas Asimeìtricas del Mercado y el Dilema del Prisionero en Propiedad Intelectual", Revista Latinoamericana de Propiedad Intelectual 2 (2011). [Spanish]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  55. Wendy J. Gordon, "Of Harms and Benefits: Torts, Restitution, and Intellectual Property," 21 Journal of Legal Studies 449 (1992). Reprinted in 34 McGeorge Law Review 541 (2003).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline | BU
  56. Wendy J. Gordon, "On Owning Information: Intellectual Property and the Restitutionary Impulse," 78 Virginia Law Review 149 (1992).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  57. Wendy J. Gordon, "Reality as Artifact: From Feist to Fair Use," 55 Law and Contemporary Problems 93 (1992).
    Westlaw | HeinOnline (BU) | HeinOnline
  58. Wendy J. Gordon, "Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship," review of Paul Goldstein, Copyright: Principles, Law and Practice, Little Brown (1989), 57 University of Chicago Law Review 1009 (1990). Westlaw | Lexis Advance
  59. Wendy J. Gordon, "An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent and Encouragement Theory," 41 Stanford Law Review 1343 (1989).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  60. Wendy J. Gordon, "Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors," 82 Columbia Law Review 1600 (1982). Reprinted in 1 The Economics of Intellectual Property 377, R. Towse & R. W. Holzhauer, eds., Edward Elgar Publishing (2002).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  61. Wendy J. Gordon, "The Artist's Tax Dilemma," 1979 Estates, Gifts and Trusts Journal 20 (Mar-Apr 1979).
Courses

4 credits

Copyright is one of the major legal regimes governing art, software, information, and entertainment, and its rules deeply affect how the internet operates. This course is a policy and skills-oriented study of federal copyright law. Much of copyright policy can be clarified by using some basic tools from economics and philosophy; these analytic tools will be taught during the course, and no prior knowledge is required. As for skills, the course focuses on two: how to tackle and master a complex set of interrelated statutory provisions, and how to articulate legal principles orally in a way that would be comprehensible to an untutored judge. Rather than having a predominant lecture format, the course puts student analysis at its center. The course will cover the exclusive rights granted to creators of "original works of authorship", the authorial subject-matters eligible for federal copyright, the nature of an infringement action, and defenses such as fair use. In addition, students will be expected to master at least one detailed, statute-governed topic such as duration (how long do rights over a given work of authorship remain in private hands before becoming free for all to copy) or the inalienable right of termination (how authors can retrieve their copyrights despite having signed contracts indicating that they have sold all rights). The course also examines some state rights, such as the 'right of publicity' and 'quasi-property rights against the misappropriation of data', for purposes of exploring how these state doctrines interact with, or are pre-empted by, federal copyright law. GRADING NOTICE: This class will not offer the CR/NC/H option.

FALL 2016: LAW JD 952 A1 , Sep 6th to Dec 8th 2016
Days Start End Credits Instructors Bldg Room
Tue,Thu 11:00 am 12:15 pm 4 Wendy J. Gordon LAW 410
Fri 10:30 am 11:45 am 4 Wendy J. Gordon LAW 410
FALL 2017: LAW JD 952 A1 , Sep 5th to Dec 7th 2017
Days Start End Credits Instructors Bldg Room
Tue,Thu 11:00 am 12:15 pm 4 Wendy J. Gordon LAW 209
Fri 10:30 am 11:45 am 4 Wendy J. Gordon LAW 209

3 credits

Overview: Intellectual Property law is evolving rapidly, and many of its rules are in flux and ambiguous. Litigation in such a context requires lawyers who can address the merits -- the strengths and weaknesses-- of particular rules and particular statutory interpretations. This seminar will help you learn to articulate and deploy such policy arguments, both in Copyright Law and in related Intellectual Property areas such as unfair competition, misappropriation, and the right of publicity. Developing a well-developed ability to advance or rebut policy arguments can make all the difference in persuading a court to adopt a rule or interpretation that helps your client. And that in turn can make the difference between winning and losing. Usually students without IP background can handle the material well, so the seminar can serve as an introduction to IP as well. So should you lack background in the field, a conversation with Professor Gordon, wgordon@bu.edu, can help you decide if you would find the seminar a comfortable fit. Intellectual products include a wide range of things: the configuration of boat hulls and baubles, the sequencing of computer instructions and musical sounds, the patterns of words that make up stories, and the patterns of molecules that make up inventions. The rules governing these different types of product differ, but common themes emerge. In Spring term of 2018, the seminar will focus primarily on federal copyright, state copyright (including the so-called right of publicity), and state misappropriation law. These are all rights that enable someone to profit from a flow of benefits that he or she has helped to generate, such as the entertainment or informational value that consumers gain from using the creative person's copyrighted work. The seminar will also address reasons and bases for placing limitations on IP. Just as the first year Torts course teaches us that the law of Torts must be narrower than a command to "pay for all the harms you cause", the law of intellectual property must be narrower than an entitlement to "receive payment for all the benefits you generate". Attention will also be paid to what ordinary tort law and the law of unjust enrichment (also known as the law of 'restitution') can teach us about IP. As well as being introduced to major cases and IP doctrines in these areas, you will read and critique a number of articles and essays on IP, including some revisions of well-known articles by Professor Gordon. The goal of the seminar is to understand intellectual property policy from the perspective of economics, ethics, and the common law. SUMMARY: The seminar will address the justifications for intellectual property rights and for their limits. The focus is on policy questions. Students may write papers in satisfaction of the Upperclass Writing Requirement. In addition to writing a paper or papers, each student will make one or more in-class presentations. PREREQUISITE/CO-REQUISITE: To enroll in this class, you must either (1) have satisfactorily completed an Intellectual Property survey course, or a course in Copyright, Patent, or Trademark, or (2) be enrolled in such now, or (3) have the instructor's consent. ** A student who fails to attend the initial meeting of a seminar (designated by an (S) in the title), or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.

SPRG 2018: LAW JD 697 A1 , Jan 18th to Apr 19th 2018
Days Start End Credits Instructors Bldg Room
Thu 10:40 am 12:40 pm 3 Wendy J. Gordon
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