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Focus on New Faculty
Posted Aug. 22, 2006

Oliar Finds New Angles in Intellectual Property

Dotan Oliar

“If somebody has created based on a promise of a certain time of protection, and you gave them 20 more years, it’s a windfall for them,” Oliar said. “There’s no convincing policy reason for retroactive extensions.”

In 1998, Mickey Mouse was only a few years away from being owned by the public. But Disney and other powerful lobbyists accomplished what their predecessors had also succeeded at over the past two centuries: getting Congress to extend the copyright term, this time 20 more years, making protection last for the life of the author plus 70 years. More controversially, the extension applied retroactively. If intellectual property rights are granted to induce people to create, does it make sense to extend copyrights for works already created? Dotan Oliar, who joins the faculty full-time in January, is examining the source of Congress’s power to regulate intellectual property, while considering how their policies affect creators and society.

“What’s driving me in thinking about intellectual property policy is how broad IP protection should be. More intellectual property rights would certainly benefit current creators and IP owners, but the question is, what would it do to future, potential creators?” said Oliar. “No one creates on a clean slate. You always use, and add to, what’s already out there. The more we protect current works, the harder we make it for people who are just trying to break out with the next big idea. This is something policymakers do not always think about.”

The constitutional clause that empowers Congress to pass copyright and patent laws begins with a much-debated phrase: “to promote the progress of science and useful arts.” Some courts and academics argue the phrase is a non-binding preamble to Congress’s IP power, while others believe it limits Congress’s purview to write laws only that advance arts and sciences. Oliar has examined the historical context in which the Constitution’s framers operated, studying the overlooked records of the Constitutional Convention. The “progress” phrase is not a preamble, Oliar charges in an upcoming Georgetown Law Journal article—a conclusion that could affect how challenges to current copyright law are made and judged in court.

“I can only hope that my research will help courts resolve this important and open question,” Oliar said.

Whether or not courts take note, Oliar’s research has attracted scholars’ attention. His work was accepted for the Stanford/Yale Junior Faculty Forum, an annual conference that features 14 papers by non-tenured faculty, selected by nationally renowned senior professors.

“Dotan’s paper is the first paper to make a compelling argument that the framers of the Constitution intended Congress to limit intellectual property in a pretty substantial way,” said Associate Professor Chris Sprigman. It “provides a platform for future work for people arguing what those limitations would look like and how they would be enforced.”

Oliar’s interdisciplinary background helps him bring new perspective to the issue. A native of Rishon Letsion, Israel, Oliar felt drawn to law from a young age.

“I was fascinated by moral and ethical dilemmas—representing people and doing justice, acquitting the innocent, convicting the guilty—these types of questions really drew me to it.”

After earning his LL.B. in law and B.A. in philosophy at Tel Aviv University, he clerked for Israeli Supreme Court Justice Jacob Kedmi, a “spectacular” year for him and “perhaps the most interesting year in Israeli constitutional law.” In one case, the Court mandated the release of Lebanese terrorists that were held as bargaining chips for the release of captive and missing soldiers. In another, the Court prohibited Israel’s security services from using physical force, not prescribed by law, while interrogating suspected terrorists. But it was the more ordinary cases, mostly criminal appeals, which brought law to life for him.

“You get to understand law in a way you didn’t when it was just writing memos or exam answers,” Oliar said, describing the joy and pain he saw in the courtroom when decisions were handed down. “You get to understand the power of law.”

Soon after, he was working toward an LL.M. degree at Harvard, where he focused on intellectual property, Internet law, and law and economics, the latter of which had a lasting influence on his methodology. His first published paper, a behavioral economic analysis of the copyright term, and his current research on the liability of file-sharing networks, use this approach. “I find it especially useful in a field like intellectual property, where the major logic is about providing people the right incentives to create.”

Oliar, who was an Olin Fellow in law and economics at Harvard, also served as a fellow for Harvard’s Berkman Center for Internet and Society at a time when the Center was formulating the structure for Creative Commons, a platform that allows people to share creative works—songs, novels, movie scripts—through flexible copyright agreements.

“The Internet is the new frontier for intellectual property law, where so much is open and so much is still undecided,” he said. Oliar’s LL.M. Thesis, analyzing the fair-use doctrine on the Internet, won one of the school’s graduation essay-writing awards.

Oliar is finishing his S.J.D. at Harvard, which he will wrap up this year after serving as a research assistant professor at Virginia for the past year. Oliar praised his experiences at Virginia, particularly the faculty’s willingness to read and comment on his work, and the sense of community in the law school. “It’s a very supportive research environment,” he said. “This is what you dream about as a junior faculty member—being surrounded by top-notch academics who are happy to talk to you about your ideas, read your work, and help you grow as a scholar.”

In January he taught Advanced Issues in Intellectual Property at the Law School, which he will teach again this year along with a course on copyright law. “The [teaching] experience was amazing,” he said. “My students were bright and engaged. We accomplished a lot together.”

“Dotan is a gifted teacher,” said Professor Julia Mahoney, who headed the non-tenured faculty appointments committee that recommended Oliar’s recruitment. “He’s absolutely terrific.”

“Dotan’s a real team player,” added Sprigman. “He’s willing to take time to think about other faculty’s ideas. He’s a really constructive reader. It’s great to have people like that around.”
• Reported by Mary Wood

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