Jessica Silbey

Jessica Silbey

Professor of Law

Yanakakis Faculty Research Scholar

BA, Stanford University
JD, University of Michigan Law School
PhD, University of Michigan

Areas of Interest
Constitutional Law, Empirical Legal Studies, Equality Jurisprudence, Intellectual Property, Law & Humanities, Reproductive Justice
Contact
Biography

Jessica Silbey teaches and writes in the areas of intellectual property, constitutional law, and law and the humanities.

In addition to a law degree, she has a PhD in comparative literature and draws on her studies of literature and film to better account for law’s force, both its effectiveness and failing as socio-political regulation. In 2018, she was a Guggenheim Fellow and has recently completed a book supported by that fellowship called Against Progress: Intellectual Property and Fundamental Values in the Internet Age (Stanford University Press, forthcoming 2022). In Against Progress, Professor Silbey considers intellectual property debates in law and culture as a bellwether of changing social justice needs in the 21st century. The book argues that intellectual property law is becoming a central framework through which to discuss essential socio-political issues, extending ancient debates over our most cherished constitutional values, refiguring the substance of “progress” in terms that demonstrate the urgency of art and science to social justice today.

Professor Silbey’s last book, The Eureka Myth: Creators, Innovators and Everyday Intellectual Property (Stanford University Press, 2015), altered the national conversation about creativity and invention. Based on a qualitative empirical analysis of interviews with authors, artists, inventors and lawyers, the book challenges the traditional notion of intellectual property as merely creating financial incentives necessary to spur innovation. Professor Silbey continues her qualitative empirical study of intellectual property in on-going research on practices of digital photography and design.

In addition to her research on intellectual property and constitutional law, Professor Silbey writes and speaks about the use of film as a legal tool (body cams, surveillance video, medical imaging) and the representations of law in popular culture (courtroom dramas, reality television). She is the co-editor of several books, including Law and Popular Culture: A Course Book (Vandeplas 2020) (with Michael Asimow), Trial Films on Trial (University of Alabama Press, 2019) (with Austin Sarat and Martha Umphrey) and Law and Justice on the Small Screen (Bloomsbury, 2012) (with Peter Robson). She is an affiliate fellow at Yale’s Information Society Project and was a faculty associate at the Berkman Klein Center for Internet and Society at Harvard University. She was previously chair of the Association of American Law School’s (AALS) national Section on Intellectual Property and served on the AALS Presidential Conference Film Committee from 2012-2020. She was co-chair of the New England Chapter for the Copyright Society of the United States from 2015 through 2018. She has been a distinguished lecturer and visiting fellow at the Willson Center for the Humanities and the Arts at the University of Georgia and was honored to give the 56th Robert D. Klein Lecture at Northeastern University in 2020. Before joining Boston University School of Law, Professor Silbey was a faculty member at Northeastern University School of Law where she was the faculty director of the Center for Law, Innovation, and Creativity, an affiliate professor in English, and Core Faculty at Northeastern’s NuLab for Maps, Texts, and Networks.

Professor Silbey was honored to clerk for Judge Robert E. Keeton on the United States District Court for the District of Massachusetts and Judge Levin Campbell on the United States Court of Appeals for the First Circuit. Before becoming a law professor, she practiced law in the disputes department of the Boston office of Foley Hoag LLP focusing on intellectual property, bankruptcy, and reproductive rights.

Publications
  1. Jessica Silbey, Against Progress: Intellectual Property and Fundamental Values in the Internet Age, Stanford University Press (forthcoming).
  2. Jessica Silbey, "New Copyright Stories: Clearing the Way for Fair Wages and Equitable," 83 Ohio State Law Journal Online (forthcoming).
  3. Jessica Silbey, "Intellectual Property and Ethnography: A Qualitative Research Approach," in Handbook of Intellectual Property Research: Lenses, Methods, and Perspectives , Irene Calboli & Maria Lillà Montagnani, eds., Oxford University Press (2021). SSRN
  4. Jessica Silbey & Jeanne C. Fromer, "Retelling Copyright: The Contributions of the Restatement of Copyright Law," 44 Columbia Journal of Law & the Arts 341 (2021).
    SSRN | Scholarly Commons
  5. Jessica Silbey, "Trademark, Labor Law, and Antitrust, Oh my!" JOTWELL (September 10, 2021). (reviewing Hiba Hafiz, The Brand Defense, 43 Berkeley J. Emp. & Lab. L. (forthcoming, 2022))
    Publisher | Scholarly Commons
  6. Jessica Silbey, "We Are All Pirates Now: Making Do in a Precarious IP Eco-System," 39 Cardozo Arts and Entertainment Law Journal 691 (2021).
    SSRN | Scholarly Commons
  7. Jessica Silbey, "Against Progress: Interventions about Equality in Supreme Court Cases about Copyright Law," 19 Chicago-Kent Journal of Intellectual Property 280 (2020).
    SSRN | Podcast | Scholarly Commons
  8. Jessica Silbey, "Fixing Informational Asymmetry Through Trademark Search," review of Amanda Levendowski, Trademarks as Surveillance Transparency, 36 Berkeley Technology Law Journal, (2021), JOTWELL (August 2020). Publisher
  9. Michael Asimow & Jessica Silbey, Law and Popular Culture: A Coursebook, 3rd edition, Vandeplas Publishing Company (2020).
  10. Jessica Silbey, "Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment," 42 Columbia Journal of Law & the Arts 351 (2019).
    SSRN | Scholarly Commons
  11. Jessica Silbey & Eric Goldman, "Copyright’s Memory Hole," 2019 Brigham Young University Law Review 929 (2019).
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  12. Jessica Silbey, Peter DiCola & Eva E. Subotnik, "Existential Copyright and Professional Photography," 95 Notre Dame Law Review 263 (2019).
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  13. Jessica Silbey, "Intellectual Property Harms: A Paradigm for the 21st Century," 99 Boston University Law Review 366 (2019).
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  14. Jessica Silbey, "Justifying Copyright in the Age of Digital Reproduction: The Case of Photographers," 9 UC Irvine Law Review 405 (2019).
    SSRN | Scholarly Commons
  15. Jessica Silbey, "The Photocopier," in A History of Intellectual Property in 50 Objects , Dan Hunter & Claudy Op Den Camp, eds., Cambridge University Press (2019). SSRN | Podcast
  16. Jessica Silbey, "Right of Repair in the Digital Economy," review of Leah Chan Grinvald & Ofer Tur-Sinai, Intellectual Property Law and the Right to Repair, 88 Fordham Law Review 63, (2019), JOTWELL (November 2019). Publisher
  17. Trial Films on Trial: Law, Justice, and Popular Culture, Austin Sarat, Jessica Silbey & Martha Merrill Umphrey, eds., University of Alabama Press (2019).
  18. Jessica Silbey & Woodrow Hartzog, "Upside of Deep Fakes," 78 University of Maryland Law Review 960 (2019).
    SSRN | Scholarly Commons
  19. Zahr K. Said & Jessica Silbey, "Narrative Topoi in the Digital Age," 68 Journal of Legal Education 103 (2018).
    SSRN | Podcast | Scholarly Commons
  20. Jessica Silbey, "American Trial Films and the Popular Culture of Law," in The Oxford Encyclopedia of Crime, Media and Popular Culture, Nicole Rafter & Michelle Brown, eds., Oxford University Press, (2017).
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  21. Jessica Silbey, "Book Review," Punishment in Popular Culture, Charles Ogletree Jr. & Austin Sarat, eds., New York University Press (2015), 51 Law & Society Review 206 (2017).
  22. Jessica Silbey, "Heuristic Interventions in the Study of Intellectual Property," 101 Minnesota Law Review Headnotes 332 (2017).
    SSRN | Scholarly Commons
  23. Jessica Silbey, "Parrots, Foxes and Copy Rights," review of Abraham Drassinower, What’s Wrong with Copying?, Harvard University Press (2015), 7 IP Law Book Review 7 (2017).
  24. Jessica Silbey, "Fairer Uses," 96 Boston University Law Review 857 (2016).
    SSRN | Scholarly Commons
  25. Jessica Silbey, "Picturing Moral Arguments in a Fraught Legal Arena: Fetuses, Phantoms and Ultrasounds," 16 Georgetown Journal of Gender and the Law 593 (2015).
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  26. Jessica Silbey, "Reading Intellectual Property Law Reform through the Lens of Constitutional Equality," 50 Tulsa Law Review 549 (2015).
    SSRN | Scholarly Commons
  27. Jessica Silbey, Aaron Perzanowski & Marketa Trimble, "Afterword: Conferring About the Conference," 52 Houston Law Review 679 (2014).
  28. Jessica Silbey, The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property, Stanford University Press (2014).
    SSRN | Podcast
  29. Jessica Silbey, "Persuasive Visions: Film and Memory," 10 Law, Culture, and the Humanities 24 (2014).
    SSRN | Scholarly Commons
  30. Jessica Silbey, "Promoting Progress: A Qualitative Analysis of Creative and Innovative Production," in The SAGE Handbook of Intellectual Property 515, Matthew David & Debora Halbert, eds., Sage Publications (2014). SSRN
  31. Jessica Silbey & Meghan Slack, "The Semiotics of Film in US Supreme Court Cases," in Law, Culture and Visual Studies 179, Anne Wagner & Richard Sherwin, eds., Springer (2014). SSRN
  32. Jessica Silbey, "Understanding Intellectual Property and the Value of Interdisciplinary Case Studies," review of Laura Murray, Tina Piper & Kirsty Robertson, Putting Intellectual Property In Its Place: Rights Discourses, Creative Labor and the Everyday, Oxford University Press (2014), 27 Intellectual Property Journal 117 (2014).
  33. Jessica Silbey, Peter Decherney, Rebecca Tushnet & Bill Herman, "Copyright Fair Use: A Four Way Discussion and Book Round Up," 52 Cinema Journal 138 (2013).
  34. Jessica Silbey, "Patent Variation: Discerning Diversity Among Patent Functions," 45 Loyola University Chicago Law Journal 441 (2013).
    SSRN | Scholarly Commons
  35. Jessica Silbey, "Images In/Of Law," in Symposium Visualization of Law in the Digital Age, 57 New York Law School Law Review 171 (2012/2013).
    SSRN | Scholarly Commons
  36. Law and Justice on the Small Screen, Jessica Silbey & Peter Robson, eds., Hart Publishing (2012).
  37. Jessica Silbey, "Comparative Tales of Origins and Access: Intellectual Property and the Rhetoric of Social Change," 61 Case Western Reserve Law Review 195 (2011).
    SSRN | Scholarly Commons
  38. Jessica Silbey, "Harvesting Intellectual Property, ‘Inspired Beginnings and 'Work Makes Work': Two Stages in the Creative Process of Artists and Innovators," 86 Notre Dame Law Review 2091 (2011).
    SSRN | Scholarly Commons
  39. Jessica Silbey, "Evidence Verité and the Law of Film," 31 Cardozo Law Review 1257 (2010).
    SSRN | Scholarly Commons
  40. Jessica Silbey, "Language and Culture in Intellectual Property Law," review of Jessica Reyman, The Rhetoric of Intellectual Property: Copyright Law and the Regulation of Digital Culture, Routledge (2009), 1 IP Law Book Review 27 (2010). SSRN
  41. Jessica Silbey, "Reasoning from Literature," 22 Yale Journal of Law and the Humanities 339 (2010).
    SSRN | Scholarly Commons
  42. Jessica Silbey, "Cross-Examining Film," 8 University of Maryland Journal of Race, Religion, Gender, and Class 101 (2009).
    SSRN | Scholarly Commons
  43. Jessica Silbey, "The Politics of Law and Film Study: An Introduction to the Symposium on Legal Outsiders in American Film," 42 Suffolk University Law Review 755 (2009).
    SSRN | Scholarly Commons
  44. Jessica Silbey, "Mythical Beginnings of Intellectual Property," 15 George Mason Law Review 319 (2008).
    SSRN | Scholarly Commons
  45. Jessica Silbey, "A Witness to Justice," in Studies in Law, Politics, and Society 61, Austin Sarat, ed., Emerald Publishing (2008). SSRN
  46. Jessica Silbey, "Criminal Performances: Film, Autobiography and Confession," 37 New Mexico Law Review 189 (2007).
    SSRN | Scholarly Commons
  47. Jessica Silbey, "A History of Representations of Justice: Coincident Preoccupations of Law and Film," in Representations of Justice 131, Antoine Masson & Kevin O’Connor, eds., Peter Lang Publishing (2007). SSRN
  48. Jessica Silbey, "Truth Tales and Trial Films," 40 Loyola of Los Angeles Law Review 551 (2007).
    SSRN | Scholarly Commons
  49. Jessica Silbey, "Videotaped Confessions and the Genre of Documentary," 16 Fordham Intellectual Property, Media & Entertainment Law Journal 789 (2006). (reprinted in Redefining Documentary Films (ICFAI University Press, India 2009) and Media and Law (AMICUS Books, India 2009))
    SSRN | Scholarly Commons
  50. Jessica Silbey, "Filmmaking in the Precinct House and the Genre of Documentary Film," 29 Columbia Journal of Law & the Arts 107 (2005).
    SSRN | Scholarly Commons
  51. Jessica Silbey, "Judges as Film Critics: New Approaches to Filmic Evidence," 39 University of Michigan Journal of Law Reform 493 (2004).
    SSRN | Scholarly Commons
  52. Jessica Silbey, "What We Do When We Do Law and Popular Culture," 27 Law and Social Inquiry 139 (2002).
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  53. Jessica Silbey, "Patterns of Courtroom Justice," 28 Journal of Law and Society 97 (2001).
    SSRN | Scholarly Commons
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