Wendy J. Gordon

Wendy J. Gordon

Professor of Law Emerita


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


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

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  • Wendy J. Gordon, Response to Oliar and Stern: On Duration, the Idea/Expression Dichotomy, and Time 100 Boston University Law Review Online (2020)
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  • Wendy J. Gordon, Alain Marciano & Giovanni B. Ramello, The Future of Law and Economics and the Legacy of Guido Calabresi 48 European Journal of Law and Economics (2019)
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  • Wendy J. Gordon, Copyright Owners' Putative Interests in Privacy, Reputation, and Control: A Reply to Goold No. 17-11 Boston University School of Law, Public Law Research Paper (2017)
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  • Wendy J. Gordon, How Oracle Erred: Functionality, Useful Articles, and the Future of Computer Copyright, in No. 17-10 Boston University School of Law, Public Law Research Paper (2016)
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  • 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 (Giovanni B. Ramello & Theodore Eisenberg, eds.,2016)
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  • 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 (Richard Watt,2014)
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  • Wendy J. Gordon, The Core of Copyright: Authors, Not Publishers 52 Houston Law Review (2014)
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  • Wendy J. Gordon, Dissemination Must Serve Authors: How the U.S. Supreme Court Erred 10 Review of Economic Research on Copyright Issues (2013)
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  • Wendy J. Gordon, The Concept of 'Harm' in Copyright, in Intellectual Property and the Common Law (Shyam Balganesh,2013)
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  • Wendy J. Gordon, Fair Use Markets: On Weighing Potential License Fees 79 George Washington Law Review (2011)
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  • Wendy J. Gordon, Discipline and Nourish: On Constructing Commons 95 Cornell Law Review (2010)
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  • Wendy J. Gordon, Orit Fischman Afori, Mark Janis & Jonathan Moskin, The Global Contours of IP Protection for Trade Dress, Industrial Design, Applied Art, and Product Configuration 20 Fordham Intellectual Property, Media & Entertainment Law Journal (2010)
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  • Wendy J. Gordon, Current Patent Laws Cannot Claim the Backing of Human Rights, in Intellectual Property and Human Rights: A Paradox (Willem Grosheide,2010)
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  • Wendy J. Gordon, Harmless Use: Gleaning from Fields of Copyrighted Works 77 Fordham Law Review (2009)
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  • Wendy J. Gordon, Trespass-Copyright Parallels and the Harm-Benefit Distinction 122 Harvard Law Review Forum (2009)
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  • Wendy J. Gordon, Ronald Coase, in The New Oxford Companion to Law (2008)
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  • Wendy J. Gordon, Moral Philosophy, Information Technology, and Copyright, in Information Technology and Moral Philosophy (Jeroen van den Hoven & John Weckert,2008)
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  • Wendy J. Gordon, The 'Why' of Markets: Copyright and Fair Use 116 Yale Law Journal Pocket Part (2007)
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  • Wendy J. Gordon & Daniel Bahls, The Public's Right to Fair Use: Amending Section 107 to Avoid the 'Fared Use' Fallacy 2007 Utah Law Review (2007)
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  • Wendy J. Gordon, Fair Use: Threat or Threatened? 55 Case Western Reserve Law Review (2005)
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  • 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) (B. Kaplan, Arthur R. Miller & I. C. Geik,2005)
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  • Lisa N. Takeyama, Wendy J. Gordon & Ruth Towse, Developments in the Economics of Copyright: Research and Analysis (2005)
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  • Wendy J. Gordon, Copyright Norms and the Problem of Private Censorship Copyright and Free Speech: Comparative and International Analyses (2005)
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  • 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 (Paul L. C. Torremans,2004)
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  • Wendy J. Gordon, Render Copyright unto Caesar: On Taking Incentives Seriously 71 University of Chicago Law Review (2004)
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  • Wendy J. Gordon, Copyright As Tort Law's Mirror Image: 'Harms', 'Benefits', and the Uses and Limits of Analogy 34 McGeorge Law Review (2003)
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  • 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. (2003)
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  • Wendy J. Gordon & Richard Watt, The Economics of Copyright: Developments in Research and Analysis (2003)
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  • Wendy J. Gordon, Intellectual Property Law, in Oxford Handbook of Legal Studies (Peter Cane & Mark Tushnet,2003)
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  • Wendy J. Gordon, Market Failure and Intellectual Property: A Response to Professor Lunney 82 Boston University Law Review (2002)
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  • Wendy J. Gordon, Comment on Data Protection Statutes and Bioinformatic Databases 8 Boston University Journal of Science and Technology Law (2002)
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  • Wendy J. Gordon, Excuse and Justification in the Law of Fair Use: Commodification and Market Perspectives, in 50 The Commodification of Information (N. Elkin-Koren & N. W. Netanel,2002)
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  • Wendy J. Gordon, Authors, Publishers and Public Goods: Trading Gold for Dross 36 Loyola of Los Angeles Law Review (2002)
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  • Wendy J. Gordon, Commentary on Economic and Ethical Reasons for Protecting Data, in International Intellectual Property Law and Policy (H. C. Hansen,2001)
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  • Wendy J. Gordon & Robert G. Bone, Copyright, in Encyclopedia of Law and Economics (B. Bouckaert & Gerrit De Geest,2000)
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  • Wendy J. Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction 66 Brooklyn Law Review (2000)
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  • Wendy J. Gordon, Jane C. Ginsburg, Arthur R. Miller & William F. Patry, The Constitutionality of Copyright Term Extension: How Long is Too Long? 18 Cardozo Arts and Entertainment Law Journal (2000)
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  • Wendy J. Gordon, Copyright and Parody: Touring the Certainties of Property and Restitution, in Certitudes Du Droit (Certainty and the Law) (Ejan Mackaay,2000)
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  • Wendy J. Gordon, Introduction 108 Yale Law Journal (1999)
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  • Wendy J. Gordon, Intellectual Property as Price Discrimination: Implications for Contract 73 Chicago-Kent Law Review (1998)
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  • Wendy J. Gordon & Sam Postbrief, On Commodifying Intangibles 10 Yale Journal of Law and the Humanities (1998) (book review)
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  • 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 (1997)
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  • Wendy J. Gordon, Norms of Communication and Commodification 144 University of Pennsylvania Law Review (1996)
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  • Wendy J. Gordon, Article on Intellectual Property Careers and the Minority Lawyer (1996)
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  • Wendy J. Gordon, Assertive Modesty: An Economics of Intangibles 94 Columbia Law Review (1994)
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  • Wendy J. Gordon & Tamar Frankel, Enforcing Coasian Bribes for Non-Price Benefits: A New Role for Restitution 67 Southern California Law Review (1994)
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  • Tamar Frankel & Wendy J. Gordon, Enforcing Coasian Bribes for Non-Price Benefits: A New Role for Restitution 67 Southern California Law Review (1994)
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  • Wendy J. Gordon, Counter-Manifesto: Student-Edited Reviews and the Intellectual Properties of Scholarship 61 University of Chicago Law Review (1994)
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  • 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,1994)
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  • Wendy J. Gordon & Anne E. Gowen, Mandated Access: Commensurability and the Right to Say 'No' 17 Hastings Communications and Entertainment Law Journal (1994)
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  • Wendy J. Gordon, Virtual Reality, Appropriation, and Property Rights in Art: A Roundtable Discussion 13 Cardozo Arts and Entertainment Law Journal (1994)
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  • Wendy J. Gordon, Truth and Consequences: The Force of Blackmail's Central Case 141 University of Pennsylvania Law Review (1993)
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  • Wendy J. Gordon, Preface: Symposium on Intellectual Property Law Theory 68 Chicago-Kent Law Review (1993)
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  • Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property 102 Yale Law Journal (1993)
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  • Wendy J. Gordon, Asymmetric Market Failure and Prisoner's Dilemma in Intellectual Property 17 University of Dayton Law Review (1992)
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  • Wendy J. Gordon, Reality as Artifact: From Feist to Fair Use 55 Law and Contemporary Problems (1992)
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  • Wendy J. Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse 78 Virginia Law Review (1992)
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  • Wendy J. Gordon, Of Harms and Benefits: Torts, Restitution, and Intellectual Property 21 Journal of Legal Studies (1992)
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  • Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship 57 University of Chicago Law Review (1990) (book review)
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  • Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent and Encouragement Theory 41 Stanford Law Review (1989)
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  • Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors 82 Columbia Law Review (1982)
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  • Wendy J. Gordon, The Artist's Tax Dilemma 4 Estates, Gifts and Trusts Journal (1979)
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Stories from The Record

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Courses

Copyright Law: LAW JD 929

3 credits

This course will give you an introduction to copyright, including a foundation in the theories underlying copyright law, an understanding of the current contours of copyright protection, the basic elements of proving infringement, the fair use defense to and remedies for infringement, and familiarity with related forms of liability such as secondary and vicarious liability. Each class meeting will consist of a combination of lecture and class discussion. Our discussions will sometimes focus on dissecting a landmark case and other times on working through the dynamics of a transaction or a policy question based on your reading. We'll also work through hypotheticals based on real-world examples and explore scenarios that will require you to think from a variety of different perspectives. Grading will be based on class participation (15%) and a 3-hour, open book, final exam.

FALL 2022: LAW JD 929 A1 , Sep 7th to Dec 7th 2022
Days Start End Credits Instructors Bldg Room
Mon,Wed 11:00 am 12:25 pm 3 Jessica Silbey LAW 413

Intellectual Property Workshop (S): LAW JD 776

3 credits

This seminar examines topics from the frontiers of intellectual property law. The class provides students with the opportunity to meet and interact with cutting-edge IP scholars who will be invited to speak. Students will read the speakers' works in progress, critique those writings in papers and oral give-and-take discussions with the authors, and will be provided additional reading as appropriate. The goals of this workshop are three: for students to deepen their substantive knowledge of IP law, for students to increase their abilities to participate in scholarly debate, and for established scholars to improve their working papers through the input of the workshop group. COREQUISITE/PREREQUISITE: Ideally, students should have taken or be concurrently enrolled in a course in IP, Copyright, Patent, or Trademark. Students who have not taken such a course (or who are not enrolled currently in such a course) must obtain the permission of the instructor. Students in the seminar will write several short papers commenting on the papers presented in the workshop. UPPER-CLASS WRITING REQUIREMENT: Class of 2024 -- This class may be used to partially satisfy the requirement. ** 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 2023: LAW JD 776 A1 , Jan 23rd to Apr 24th 2023
Days Start End Credits Instructors Bldg Room
Mon 4:20 pm 6:20 pm 3 Samantha Zyontz

The Role of In-House Counsel: LAW JD 978

2 credits

Practicing law in-house is often done at the tension point of enterprise growth and risk mitigation. This course explores the unique aspects of working as a lawyer within an organization's internal legal department. In order to provide a realistic appreciation and understanding of the role of in-house counsel, the course will utilize scenario-based group tutorials and simulations in which students will act as in-house counsel for a fictitious company in a specific industry. Areas covered may include contractual and employment matters, regulatory, compliance, internal investigations, enterprise risk questions and advising the Board of Directors and senior management. While the course will involve the substantive law of various areas relevant to the fictitious company's business and operations, the focus of the course will be on practicing and building lawyering skills that are critical for effective and ethical in-house practice. These include identifying and analyzing legally viable alternatives, and making recommendations, for the company to pursue to carry-out its business strategy and mitigate risks, as well as written and oral communications and presentations reflecting the same. As an overarching theme, the course will consider how to balance the important role of lawyer and trusted business advisor with the backdrop of the ever-present ethical and reputational considerations of the enterprise. This course is designed to provide students with practical skills (as well as opportunities to use and apply them) as they learn to identify and navigate the day-to-day challenges of the modern corporate counsel. Grades in the course will be based on scenario-based responses (presentation and/or written), a collaborative final group presentation, and in-class participation. CLASS SIZE: Limited to 12 students. NOTE: This course counts toward the 6 credit Experiential Learning requirement. GRADING NOTICE: This course does not offer the CR/NC/H option. ATTENDANCE REQUIREMENT: A student who fails to attend the first class or to obtain permission to be absent from either the instructor or the Registrar will be administratively dropped from the course. Students who are on the wait list are required to attend the first class to be considered for enrollment. Because the course involves regular in-class exercises, some of which are done in teams, and class participation is a significant component of a student's final grade, regular class attendance is essential and thus the course normally does not accommodate flexibility in attendance.

SPRG 2023: LAW JD 978 A1 , Jan 19th to Apr 20th 2023
Days Start End Credits Instructors Bldg Room
Thu 6:30 pm 8:30 pm 2 Staff

Trademark and Unfair Competition: LAW JD 780

3 credits

This course will examine the precepts of trademark and unfair competition law. We will investigate issues of ownership, protectability, and infringement in the context of words, symbols, slogans, product design and trade dress. The course also will handle related issues, depending on class interest, such as: trademark's common law roots, false and comparative advertising, parody, the right of publicity, the First Amendment, a comparison of how copyright and trademark treat 'functional' designs, the influence of misappropriation law and fears of free riding, and the challenge of applying trademark laws in the Internet context. GRADING NOTICE: This course does not offer the CR/NC/H option.

FALL 2022: LAW JD 780 A1 , Sep 6th to Dec 8th 2022
Days Start End Credits Instructors Bldg Room
Tue,Thu 9:00 am 10:30 am 3 Stacey Dogan LAW 103