Intellectual Property Law

Premise - Crowdsourcing the Built Environment

The voice of “the crowd” holds meaning like never before. The advent of network technologies and digital platforms invite the public to participate in the process of collective creation. “Crowdsourcing” is more than an abstract idea. Already it has informed the creation of two signature public projects in New York, and it promises to change the way the public can interact with the design of the built environment. What effect will this new media have on the way cities evolve?


Foreword - Innovation in Practice
by Brian Vargo, Executive Editor

In real estate, ‘innovation’ can be precarious. The industry typically standardizes the spectrum of the built environment into defined asset classes and product types, often confined by conventional financing and public policy. To many, the prospect of ‘innovation’ invites undue peril. Why subject the already risk-prone process of building or operating real estate to additional uncertainty?
Others see ‘innovation’ as the impetus of creating economic value. Beyond real estate, ‘innovation’ is a cornerstone of the modern economy and holds both cultural and practical implications. Many herald changing trends in the demand for real estate as a new generation takes hold, often pairing the ‘innovation economy’ with the ‘disruptive economy.’ Innovation is by its own definition unsettling; it can invoke a fundamental questioning of norms, disruptive of established principle in the pursuit of unique value. Yet not all novel ideas last forever, and only time will distinguish whether an innovative concept is fleeting or substantive.

If real estate follows a basis of standardization, and innovation is naturally disruptive, what is innovation in real estate? What is the conflict between real estate and innovation, and how is it challenged, overcome, or resolved? What is the value of innovation in the design and development of the built environment, and how does one find it?

The 2015 Harvard Journal of Real Estate takes aim at those questions. This year’s Journal features 11 authors from programs across Harvard University, each with distinct approaches to the various facets of the real estate industry. The authors investigate a range of subjects under the umbrella of innovative practice, including opportunistic investment strategies, creative financing mechanisms, progressive public policy, and case studies in unique approaches to real estate development. Following each article is a review written by an invited academic or leading practitioner with a background in the same topic.

The real estate industry faces new frontiers, and its evolution will require many voices. Collectively, these authors investigate the value of innovation in practice, inviting both new ideas and opportunities for further discourse.

Increasingly, trademark litigation involves the use of trademarks in digital environments. Sometimes it involves the sale of digital models of tangible objects such as cars and handbags to be used in video games or films. With the growth of 3D printing, digital version of objects will not be limited to media products, because 3D printing technology radically separates the design and production processes.

That separation has potentially destabilizing consequences for trademark law, which has overwhelmingly been oriented toward indications of the origin of physical goods. For one thing, digitization brings much more of trademark law into contact with the Supreme Court's decision in Dastar Corp. v. Twentieth Century Fox Film Corp., raising difficult questions about whether, and under what circumstances, digital files count as “goods” for Lanham Act purposes. More broadly, a world of increasing digitization implicates important concerns about the boundaries of trademark law vis-`a-vis other areas of IP law, and it raises profound questions about the meaning of source indication and the role of trademark law in the digital world. 

We argue that the question of whether we should treat digital files as
relevant goods is irreducibly one of policy, and it should not be reduced to mere formalism. Digital files should be treated as goods only when consumers’ interactions with the files sufficiently resemble their interactions with physical goods that they warrant the same treatment.

In particular, we argue that digital files should be treated as goods only when the origin of the files as such (not the content of those files) is material to consumers. That, we argue, may turn out to be relatively rare. Indeed, we suggest that a world of greater digitization might well be a world in which trademark law has less relevance relative to design patent and copyright.