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Our Fall 2025 Issue—Volume 15, Number 1—examines how intellectual property doctrine is straining (and adapting) across a set of fast-moving technological and institutional shifts: ubiquitous digital copying, platform governance by private ordering, changing creative-production economics, state-directed innovation policy, and the procedural and substantive challenges posed by generative AI.
First, Professors Jessica Silbey and Samantha Zyontz offer an empirical study of the copyright de minimis defense. Their data supports an intuitive premise of the digital era—trivial copying is everywhere—but also reveals that increased invocation has not translated into increased success, reflecting persistent judicial skepticism. The authors close with a prescriptive reform agenda aimed at restoring de minimis to its filtering function and promoting judicial economy without chilling ordinary, communicative uses of copyrighted expression.
Second, Professor Michael P. Goodyear maps the “third,” comparatively opaque pillar of platform liability: trademark law’s common law notice-and-takedown regime, shaped most prominently by the Second Circuit’s decision in Tiffany v. eBay. Drawing on a data-driven study of major online platforms, Goodyear shows that the DMCA’s architecture significantly influences trademark takedown practices, yet the open-textured nature of the common law standard leaves room for variation and sector-specific convergence. The Article situates those findings within broader debates about platform governance and argues that private ordering in trademark enforcement offers a concrete template for how common law standards may evolve if statutory immunity regimes like Section 230 are narrowed or repealed.
Third, Professors Sean A. Pager and Eric Priest put the “digital democratization” narrative in music to an empirical test. Using quantitative chart data and extensive interviews, they find that genuinely DIY recordings rarely achieve mainstream success—roughly 1% of music appearing in the top 200 weekly charts is self-produced—and that, contrary to common assumptions, the time and costs required to produce commercially competitive music have not significantly changed. On their account, the skeptics’ claim that digitization has rendered sound recording copyright obsolete is overstated; the incentive rationale remains, in significant part, intact.
Fourth, Professor Taorui Guan explores “coordinated patents” as a distinctive feature of China’s innovation strategy: a patent regime embedded in, and reinforced by, interlocking industrial policy tools such as subsidies, procurement preferences, tax incentives, and regulatory levers. While coordinated patents can accelerate technological diffusion and national competitiveness, Guan argues that the same coordination can distort patent quality and enforcement incentives, with spillover consequences for global innovation markets. The Article offers reform options aimed at retaining the regime’s strategic benefits while mitigating risks to patent legitimacy and innovation welfare.
Fifth, my own student note turns to the procedural frontier of generative AI copyright litigation, arguing that Rule 23(b)(3) class certification barriers—especially predominance and standing problems driven by individualized proof and “black box” model opacity—threaten to undercut the class action’s compensatory and deterrent functions in this modern setting. In the absence of legislative reforms, I propose a pragmatic, court-administered path forward: identify genuinely common questions capable of resolution at scale, certify narrow issue classes under Rule 23(c)(4), and use Rule 53 special masters to manage individualized issues without collapsing the litigation into unworkable one-off suits.
Finally, Ben Anderson’s student note addresses how platforms should be held accountable for AI-assisted copyright infringement, arguing that existing secondary liability doctrine creates sharp incentives that may turn on platform architecture rather than on responsible governance. Anderson sketches a “RAD-plus” approach: a dynamic reasonableness framework under which platforms can earn insulation from certain liability by adopting meaningful, evolving safety precautions—such as robust moderation and repeat-infringer restrictions, ongoing model updates, and openness to third-party research that can expose mitigable design shortcomings.
Sincerely,
Cindy L. Chang
Editor-in-Chief
NYU Journal of Intellectual Property & Entertainment Law