E-Sports As a Prism for the Role of Evolving Technology in Intellectual Property

In this Response to Professor Burk, I consider the ways in which IP law can address the IP questions raised by changing technology and emerging industries. IP laws cannot shift with every new invention or business. If Congress relies on industry‐specific legislation, trying to intervene in each emerging or anticipated problem wrought by new technology, then our IP system will fail us. Instead, the common law and broader principles of IP law are tools better designed to address these novel IP questions.

E‐sports presents a useful case study of alternative ways of thinking about technological changes and challenges to the IP system. My analysis focuses on two primary insights. First, by revealing the inadequacy of the initial analytical or doctrinal move made by courts, new industries and technologies can illuminate missteps taken in IP common law. I consider two examples in the context of e‐sports: the use of “persona” in right of publicity law, and the “initial interest confusion” doctrine in trademark law.

Second, a new context can highlight open and unanswered questions in IP law that need to be addressed, sometimes by legislation, but more often by applying existing law and focusing on the basic principles that underlie the relevant area of law. I consider the example of how copyright law addresses increasingly public uses of copyrighted content.

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