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Skip Navigation LinksHome > Faculty > Ghosh, Shubha

Ghosh, Shubha

Professor of Law

Tel: 214-768-2598
Fax:
Email: sghosh@mail.smu.edu
Homepage: http://faculty.smu.edu/sghosh

Bio

Professor Ghosh joined the SMU faculty as a full professor in the Fall of 2005 and brings extensive academic and practical experience to his First Year and Upper Division courses. He teaches courses in Intellectual Property, Business Associations, Internet Law, Copyrights, Patents, Torts, and Property. His published work has appeared in Tulane Law Review, Case Western Law Review, Houston Law Review, Florida Law Review, Harvard Journal of Law and Technology, Berkeley Technology Law Journal, Antitrust Law Journal, and other scholarly and practitioner oriented publications. He is a member of the American Intellectual Property Lawyers Association, the American Law and Economics Association, the Canadian Law and Economics Association, and the State Bar of California.

Primary Articles

"Decoding and Recoding Natural Monopoly, Deregulation, and Intellectual Property," accepted The University of Illinois Law Review.

The Fable of the Commons: Exclusivity and the Construction of Intellectual Property Markets, 40 U.C. DAVIS LAW REVIEW 855 (2007).

Belief: An Essay in Understanding, 54 BUFFALO LAW REV. 807-831 (2006).

The Market As Instrument, 59 SMU LAW REV. 1717-1731 (2006).

Exclusivity: The Roadblock to Democracy?, 50 SAINT LOUIS UNIVERSITY LAW JOURNAL 799-827 (2006).

When Exclusionary Conduct Meets the Exclusive Rights of Intellectual Property: Morris v. PGA Tour and the Limits of Free Riding As An Antitrust Business Justification, 37 LOYOLA UNIVERSITY CHICAGO LAW JOURNAL 723-751 (2006).

Market Entry and the Proper Scope of Copyright, 12(3) INTERNATIONAL JOURNAL OF THE ECONOMICS OF BUSINESS 347-359 (2005).

Patent Law and the Assurance Game: Refitting Intellectual Property in the Box of Regulation,18(2) THE CANADIAN JOURNAL OF LAW AND JURISPRUDENCE 307-332 (JULY 2005).

On Bobbleheads, Paparazzi, and Justice Black, Symposium on Right of Publicity, 45 SANTA CLARA LAW REVIEW 617-649 (2005).

The Functions of Transaction Costs: Rethinking Transaction Cost Minimization in a World of Friction, 47 ARIZONA LAW REVIEW 61-111 (2005) (with Professor David Driesen, Syracuse University College of Law).

Patents and the Regulatory State: Rethinking the Patent Bargain Metaphor After Eldred, 19 BERKELEY TECHNOLOGY LAW JOURNAL 1315-1388 (2005).

What Do Patents Purchase?: In Search of Optimal Ignorance in the Patent Office, 40 HOUSTON LAW REVIEW 1219-1259 (2004) (with Professor Jay Kesan, University of Illinois School of Law).

Copyright as Privatization, 78 TULANE LAW REVIEW 657-737 (2004).

Deprivatizing Copyright, 54 CASE WESTERN RESERVE LAW REVIEW 387-501 (2003).

Globalization, Patents, and Traditional Knowledge, 17 COLUMBIA JOURNAL OF ASIAN LAW 73-120 (2003)(reprinted in JOURNAL OF PATENT AND TRADEMARK OFFICE SOCIETY).

Legal Code as Unprotected Expression, 50 JOURNAL OF THE COPYRIGHT SOCIETY OF THE USAUSA 71-111 (2003)( SPECIAL 50TH ANNIVERSARY ISSUE).

Gandhi and the Life of the Law, 53 SYRACUSE LAW REVIEW 1273-1278 (2003).

Reflections on the Traditional Knowledge Debate, 11 CARDOZO J. INT’L & COMP. LAW 497-510 (2003).

The Merits of Ownership; or, How I Learned to Stop Worrying and Love Intellectual Property, 15 HARVARD JOURNAL OF LAW & TECHNOLOGY 453-496 (2002).

Colloquium on Privacy and Security, 50 BUFF. L. REV. 703-754 (2002).

Pills, Patents, and Power: State Creation of Gray Markets as a Limit on Patent Rights, 53 FLORIDA LAW REVIEW 789-829 (2001)(reprinted at 14 FLA. J. INT’L L. 217).

Turning Gray into Green: Some Comments on Napster, 23 HASTINGS COMM/ENT LAW JOURNAL 565-586 (2001).

Towards a Theory of Regulatory Takings for Intellectual Property, 37 SAN DIEGO LAW REVIEW 637-709 (2000).

Panel One: The Road to Napster: Internet Technology & Digital Content, 50 AMERICAN UNIVERSITY LAW REVIEW 363-388 (2000).

Where's the Sense in Hill v. Gateway 2000?: Reflections on the Visible Hand of Norm Creation, 16 TOURO LAW REVIEW 1125-1143 (2000).

A Real Options Perspective on Crisis Cartels and the Failing Firm Defense, 68 ANTITRUST LAW JOURNAL 111-124 (2000).

Gray Markets in Cyberspace, 7 JOURNAL OF INTELLECTUAL PROPERTY LAW 3-55 (1999).

W[h]ither Daubert?, TRIAL LAWYERS QUARTERLY 9-20 (February 1999).

Whistling Dixie: The Invalidity and Unconstitutionality of Covenants Against Yankees, 10 VILL. ENVTL. L. J. 57-90 (1999)(with Professor Alfred Brophy, University of Alabama School of Law).

Federal and State Resolutions of the Problem of Daubert and ‘Technical or Other Specialized Knowledge,' 22 AM. J. TRIAL ADVOCACY 237-266 (1998).

The Legal, Policy, and Economic Implications of Immigrant Entrepreneurs for the Immigration Reform Debate, 5 UCLA ASIAN PACIFIC LAW REVIEW 15-43 (1998).

An Intellectual Property Optimist Looks at Article 9 and Bankruptcy, 7 FORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT L. J. 99-172 (1997).

Takings, the Exit Option, and Just Compensation, 17 INTERNATIONAL REVIEW OF LAW AND ECONOMICS 157-176 (1997).

Property Rules, Liability Rules, and Termination Rights: A Fresh Look at the Employment at will Debate with Applications to Franchising and Divorce, 75 OREGON LAW REVIEW 969-1035 (1996).

An Economic Analysis of the Common Control Exception to Gray Market Exclusion, 15 UNIVERSITY OF PENNSYLVANIA JOURNAL OF INTERNATIONAL BUSINESS LAW 373-439 (1994).

 

Books

Shubha Ghosh, Richard Gruner, Jay Kesan, & Robert Reis, Intellectual Property:Private Rights, the Public Interest, and the Regulation of Creative Activity: Cases and Materials (Thompson-West, 2007).

Recognizing Authority in the Marketplace, in INTELLECTUAL PROPERTY AND INFORMATION WEALTH VOL. 4: INTERNATIONAL INTELLECTUAL PROPERTY LAW AND POLICY (Peter Yu, ed.) 225-242 (Praeger 2007).

How to Build a Commons: Is Intellectual Property Constrictive, Facilitating, or Irrelevant?, in INFORMATION COMMONS (Elinor Ostrom and Charlotte Hess, eds.) 209-245 (MIT Press 2006).

RICHARD GRUNER, SHUBHA GHOSH, & JAY KESAN, INTELLECTUAL PROPERTY AND BUSINESS ORGANIZATIONS: CASES AND MATERIALS, (LEXIS-NEXIS 2006).

Security, Privacy, and Strict Products Liability on the Internet, in SECURING PRIVACY IN THE INTERNET AGE (Margaret Radin and Anupam Chander, eds.) (Stanford University Press, forthcoming) (with Vikram Mangalmurti, Fellow, Carnegie Mellon University Heinz School of Public Policy).

STEVEN E. CHAIKELSON, CHRISTINE A. CORCOS, EDMUND P. EDMONDS, JON M. GARON, SHUBHA GHOSH, WILLIAM D. HENSLEE, ROBERT A. JARVIS, MARK S. KENDE, CHARLES A. PALMER, NANCY L. SCHULTZ, MARTIN R. SCORDATO, LIBBY A. WHITE, THEATER LAW: CASES AND MATERIALS (Carolina Academic Press 2004)

Competitive Baselines for Intellectual Property Systems in INTERNATIONAL PUBLIC GOODS AND TECHNOLOGY TRANSFER (Keith Maskus and Jerome Reichmann, eds.) (Cambridge University Press 2005).

The Importance of Patents, Trade-marks and Copyright for Innovation and Economic Performance: Developing a Research Agenda for Canadian Policy, in INTELLECTUAL PROPERTY AND INNOVATION IN THE KNOWLEDGE-BASED ECONOMY. Edited by Jonathan D. Putnam, University of Toronto. Ottawa: Industry Canada, 2006, pp. 3-1-3-91. Available at: http://strategis.ic.gc.ca/epic/internet/inippd-dppi.nsf/en/ip01265e.html (with Dr. Mohammed Rafiquuzzaman, Industry Canada).

Understanding Immigrant Entrepreneurs in REFRAMING THE IMMIGRATION DEBATE 131-154 (Bill Hing and Ronald Lee, eds.) (UCLA Asian American Studies Center) (1996).

 

Speeches/Presentations

"Global Context of Intellectual Property," International Association of Outsourcing Professionals, Gardere, Wynne, & Sewell, Dallas, Texas, May, 2007.

"Internet Markets," ALI-ABA Conference on Internet Law, Washington, D.C., May, 2007.

“Are Patents Private Property Under the Fifth Amendment?,” The Federalist Society for Law and Public Policy Luncheon Symposium, Washington, D.C., March, 2007.

“Racial Categories in Patent Law: Reflecting Social Hierarchies or Creating Them?,” Howard University School of Law. Conference on Intellectual Property and Social Justice, March, 2007; University of Oklahoma College of Law Faculty Workshop, February, 2007.

“Is Intellectual Property Constitutionally Protected Property?,” Debate Series, Intellectual Property Center, University of Richmond School of Law, February, 2007.

Lectures on the Law and Economics of Intellectual Property, National Law School of India University, Bangalore, India, December, 2006.

“Deregulation, Intellectual Property, and Competition Policy, International Conference on Impact of TRIPS, Indo-US Exchange, National Academy of Legal Studies and Research, Hyderabad, India, December, 2006.

Panel Discussion of Intellectual Property Issues Confronting the Courts, Appellate Judges Education Institute, Dallas, Texas, November, 2006.

“A Bend in the River?: Intellectual Property and the Supreme Court’s 2005-2006 Term,” Appellate Judges Education Institute, Dallas, Texas, November, 2006.

"Decoding and Recoding Natural Monopoly, Deregulation, and Intellectual Property," Annual Intellectual Property Scholars Meeting, Boalt Hall School of Law, Berkeley, California, August, 2006.

"Economics and Intellectual Property," AALS Mid-year Meeting of the Intellectual Property Section, Vancouver, British Columbia, June 15, 2006.

“Exclusivity and the Construction of Intellectual Property Markets in Cyberspace and Real Space,” Public Lecture, Oxford Internet Institute, Oxford University, April 10, 2006.

“The Fable of the Commons: Rethinking Intellectual Property Rights and the Construction of the Commons,” Public Lecture, AHRC Research Centre for Studies in Intellectual Property and Technology Law, University of Edinburgh Faculty of Law, April 6, 2006.

“The Fable of the Commons,” Symposium on Intellectual Property and Distributive Justice, University of California, Davis, School of Law, March 10, 2006.

“Experimental Use,” Facultes Universitaires, Centre Innovation-Propriete Intellectuelle (CIPI), Brussells, Belgium, October 28, 2005.

“How the Grokster Decision Makes Copyright More Like Patent,” Conference on Peer to Peer and File Sharing Technologies, Santa Clara Law School, October 7, 2005.

“Intellectual Property and Privatization,” participant, Childress Lecture Series, Saint Louis University School of Law, September 30, 2005.

Interviewed on Squawk Box, CNBC, about Grokster case, June 6, 2005.

“Exclusivity, Free Riding, and Antitrust,” Institute for Consumer Antitrust Studies, Loyola Law School, Chicago, April 8, 2005.

“Patents and the Regulatory State,” Faculty Seminar Series, University of Ottawa Faculty of Law,March 15, 2005.

“Strict Liability for Information Privacy Breaches,” Symposium on Cybersecurity: Developing a Legal and Regulatory Framework for Cybersecurity, Carnegie Mellon University and Internet Security Alliance Joint Symposium, October 13-14, 2004, National Press Club, Washington, D.C.

“Intellectual Property and Distributive Justice,” Annual Conference of the Society for Economic Research of Copyright Issues, Turin, Italy, July, 2004; University of Sienna Summer School, July, 2004.

“Decentering Property,” Law and Society Annual Meeting, Chicago, Illinois, May, 2004.

“Author Meets Reader Panel: Discussion of Robin Paul Malloy’s Law in a Market Context,” Law and Society Annual Meeting, Chicago, Illinois, May, 2004.

“A Social Insurance Perspective on Cybersecurity and Privacy,” Conference on Security and Privacy in Cyberspace, Stanford Law School, March, 2004.

“Standard Setting Organizations and the Duty to Disclose Patents: A Discussion of the Federal Circuit’s Decision in Rambus v. Infeon Technologies,” Erie County Bar Association, Intellectual Property Section, Monthly Meeting, December, 2003.

“Son of Sony: Comments on Grokster,” Niagara Falls Intellectual Property Law Association Meeting, November, 2003.

“Copyright as Privatization,” Oxford Intellectual Property Research CenterCentre, St. Peter’s College, Oxford University, October, 2003.

“Culture, Copyright and the Public Domain,” Seminar Series on Institutionalism, University at Buffalo Law School, September, 2003.

“Understanding Copyright Markets,” IP Scholars Conference, Tulane Law School, October, 2003; IP Scholars Conference, Boalt Hall, August, 2003; Annual Meeting of American Law and Economics Association, September 2003.

“Recent Cases from the Federal Circuit,” Intellectual Property Continuing Legal Education Seminar, Law Firm of Hodgson Russ, Buffalo, New York, August, 2003.

“Rights of First Entry in Derivative Markets,” Society for Economic Research in Copyright Issues Annual Meeting, Northampton, Mass., June, 2003.

Television Appearance, WKBW-TV, Buffalo, New York, interviewed on privacy in social security numbers, May, 2003.

“Competitive Baselines for Intellectual Property Systems,” Conference on Global Public Goods and Technology Transfer, Duke University School of Law, April, 2003.

“Country Level Domain Names in India,” Conference on Ruling the Root, Cardozo Law School, March, 2003.

“Law and Economics and Other Schools of Jurisprudence,” Meeting of the AALS Section of Law and Economics, AALS Annual Meeting, Washington, D.C., January, 2003.

“Foreseeability and the Scope of the Patent Grant,” Conference on International Patent Law, Cardozo Law School, November, 2002.

“Manufacturing Law,” Boston University School of Law, October, 2002; IP Scholars Conference, Cardozo Law School, August, 2002.

Radio Appearance, Buffalo Beat, NPR, interviewed on new JD/MA in economics program, August, 2002.

“Kelly v. Arriba Soft: Copyright Treatment of Search Engines and Linking,” Intellectual Property Continuing Legal Education Presentation, Law Firm of Hodgson Russ, Buffalo, New York, April, 2002.

“Literary Woman and Economic Man Revisited,” Conference on Law, Culture, and Humanities, University of Pennsylvania Law School, March, 2002.

“Reflections on the Traditional Knowledge Debate,” Conference on Traditional Knowledge and Intellectual Property Systems, Cardozo Law School, February, 2002.

"Pharmaceutical Patents," Joint Panel of AALS Sections on Patent Law and Health Law, AALS Annual Meeting, New Orleans, January, 2002.

"Contracts and Socio-economics," AALS Section on Socio-economics, AALS Annual Meeting, New Orleans, January, 2002.

"Intellectual Property and Market Creation: On Napster and Neem," invited lecture, Syracuse University School of Law, October, 2001.

"Comparison of Canadian and US Copyright and Trademark Law," Intellectual Property and Innovation in the Knowledge-Based Economy, Industry Canada and Center for Innovation, University of Toronto Faculty of Law, May, 2001.

"Fixed Costs, Public Goods, and Napster," Conference on Beta-testing the First Amendment, Hastings College of Law, April 2001.

"Understanding the Public Domain," Commodification Futures Conference, University of Denver College of Law, April, 2001.

"Gray Markets, Intellectual Property Rights, and Access to Pharmaceuticals," University of Florida School of Law, Symposium on Intellectual Property, February, 2001.

"Beyond Napster: Debating the Future of Copyright on the Internet," American University, Washington College of Law, November, 2000.

"Traditional Knowledge, Intellectual Property, and Biodiversity," invited lecture, Vermont Law School, October, 2000.

Television Appearance, WKBW-TV and WIVB-TV, Buffalo, New York, interviewed about Napster, October, 2000.

"Real Options and Antitrust Law," Antitrust Section of the American Bar Association Symposium, Washington College of Law, American University, September, 2000.

"Market Definition for Web-Based Transactions," Joint ABA and AALS Session on Antitrust Law, American Bar Association Antitrust Section, Annual Meeting, Washington, D.C., April, 2000.

"Norms and Gateway2000," AALS Section on Contract, AALS Annual Meeting, January, 2000.

"Bundling Information Products After Microsoft," Joint Meeting of the Antitrust and Intellectual Property Sections of the State Bar of Georgia, Atlanta, GA, December, 1999.

"Product Innovation and the Biomaterials Access Assurance Act of 1998," Meeting of the Products Liability Section of the American Bar Association, Atlanta, GA, November, 1999.

"Coase, Causation, and Expert Witnesses" Canadian Law and Economics Association Annual Meeting, University of Toronto, September, 1999.

"State Sovereign Immunity and the Aftermath of College Savings," South Eastern Association of American Law Schools Annual Meetings, Hilton Head, South Carolina, July, 1999.

"The Origins of ‘Intellectual' Property," Law & Society Annual Meeting, Chicago, Illinois, May, 1999.

"Gray Markets in Cyberspace," Works in Progress Series, Boston College Law School, October, 1998.

"The Economic Theory of the Family from an Evolutionary Perspective," First Annual Society of Evolutionary Analysis of the Law Conference, Pace University, October, 1998.

"Gray Markets and Club Goods in Cyberspace," Canadian Law and Economics Association Annual Meeting, University of Toronto, September, 1998.

"Expert Testimony and Social Science," Law & Society Annual Meeting, Aspen, Colorado, May, 1998; Central States Law School Conference, Tulsa, Oklahoma, October, 1997.

"Employment at will: A Property Rights Perspective," Works in Progress Series, UCLA Law School, September, 1996; American Law & Economics Association Annual Meetings, Chicago, Illinois, May, 1996.

"Immigrant Entrepreneurship," various audiences of legal and business professionals, New York City, Dallas, Houston, San Francisco, March-April, 1996.

"Gray Marketing," George Mason Law School, January, 1994; Stanford Law School, Oct., 1993.

"International Trade and Population Growth," Midwest Regional International Conference, Kellogg School of Business, Northwestern University, May, 1991.

"Transfers within the Family," University of Chicago Dept. of Economics, February, 1989; University of Pennsylvania Dept. of Economics, January, 1988.

 

Other

Modeling Globalization from the Bottom Up: A Review Essay of John Braithwaite and Peter Drahos, Global Business Regulation, 39(4) LAW & SOCIETY REVIEW 965-979 (2005).

Guest Editor, LAW AND POLICY, Special Issue on Law, Technology, and Development (Blackwell Press 2004).

Myriad Troubles Facing Gene Patents, 2(5) PRECLINICA 300 (2004) (discussion of cancellation of patent on breast cancer gene sequence in Europe).

Intellectual Property in Bankruptcy, 2(4) PRECLINICA 239-240 (2004) (presentation to general audience on bankruptcy and intellectual property).

The Bayh-Dole Act Under Fire, 2(2) PRECLINICA 13-14 (2004)(commentary on Bayh-Dole Act and recent claims of conflict of interest at the National Institute of Health).

Copyright Act of 1790, MAJOR ACTS OF CONGRESS VOL. ONE (BRIAN K. LANDSBERG, ED.) 181-185 (2004).

Copyright Act of 1976, MAJOR ACTS OF CONGRESS VOL. ONE (BRIAN K. LANDSBERG, ED.) 185-190 (2004).

Patent Acts, MAJOR ACTS OF CONGRESS VOL. THREE (BRIAN K. LANDSBERG, ED.) 116-121 (2004).

Belling the Cat Virtually, Book Review of STUART BIEGEL, BEYOND OUR CONTROL?, 1 BUFF. INTELL. PROP. L. J. 240-256 (2002).

Enlightening Identity and Copyright, Book Review of EMMA ROTHSCHILD, ECONOMIC SENTIMENTS, 49 BUFF. L. REV. 1315-1340 (2001).

The Relationship Between Antitrust and Intellectual Property Laws, December 2000, available at www.gigalaw.com.

The Legal Importance of Defining Markets on the Internet, November 2000, available at www.gigalaw.com.

Antitrust Scrutiny of Business to Business Websites, October 2000, available at www.gigalaw.com.

The Antitrust Implications of B2B Electronic Marketplaces, September 2000, available at www.gigalaw.com

MP3 v. the Law: How the Internet Could (But Won’t) Become Your Personal Jukebox, July 2000, available at www.gigalaw.com.

Unscrambling Free Speech Law for Cable....and the Internet?, June 2000, available at www.gigalaw.com.

Deciphering Free Speech and the Encryption Debate, May 2000, available at www.gigalaw.com.

Source Code as Free Speech in Encryption Cases, April 2000, available at www.gigalaw.com.

Analyzing Fair Use and the First Amendment on the Internet, March 2000, available at www.gigalaw.com.

Limiting Speech: The Consequences of Quashing Cybersquatting, February 2000, available at www.gigalaw.com.

Revealing the Microsoft Windows Source Code. January 2000, available at www.gigalaw.com.

Book Review: Law and Economics Anthology (Kenneth G. Dau-Schmidt & Thomas S. Ulen eds.); Foundations of the Economics Approach to Law (Avery Katz, ed.), 23 THE LEGAL STUDIES FORUM 599-606 (1999).

Book Review: Jamie Cassels, The Uncertain Promise of Law: Lessons from Bhopal (Univ. of Toronto Press, 1993), 13 STANFORD ENVIRONMENTAL LAW JOURNAL 264-276 (1994).

 



Curriculum Vitae

 

Education

B.A. (1984), Amherst College
M.A. (1986); Ph.D. (Economics 1988), The University of Michigan
J.D., with distinction, (1994), Stanford Law School