In Memoriam: Prof. Dan Burk

I’m devastated to report that UC Irvine Law School professor Dan Burk has died. 💔 His death comes just days before an already-scheduled event to celebrate his life, which will now become an emotionally wrenching memorial.

Dan was a brilliant and impactful scholar and academic. Dan also had a huge personal influence on my life and career–a sentiment that is shared by dozens or (more likely) hundreds of professors. He served as one of my role models in several ways, but perhaps most significantly in his tireless support for and encouragement of new community members.

In this post, I’ll explain how I got to know Dan and then talk about Dan’s talents as a scholar, a mentor, and a maven.

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I first met Dan (virtually) through an email list called “Cyberia-L,” probably in 1994. As Prof. Winn (University of Washington) wrote in 1998, “the Cyberia-L listserv for discussion of cyberspace legal issues was established in 1992 by Trotter Hardy, a professor at William and Mary College of Law, creating a public space in which the application of traditional legal principles to Internet activities was hotly debated.” Listmembers were an eclectic mix of professors, lawyers, technologists, and others, and many members had cyber-libertarian inclinations. Over 20 years ago, I described it as a “very noisy list often filled with personal attacks and irrelevant rants, but still a key resource for seeing what others are thinking about.” Prof. Volokh (now of the Hoover Institute) provides additional context about Cyberia-L in this 1996 paper).

(Cyberia-L is long gone and nearly forgotten, as is its cyber-libertarian ethos. Many of the academic participants eventually migrated the conversation to the Cyberprof email list, run by Prof. Mark Lemley (now of Stanford Law), which is still going strong).

Dan and I were both active members of Cyberia-L, and it’s how we initially got to know and respect each other. It was one of millions of examples of how the early Internet brought people together and fostered community. In our case, it connected a brand-new West Coast lawyer like me with a rising East Coast academic star like Dan, something that would have been hard or impossible to do without the Internet.

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Dan is perhaps most celebrated for his patent scholarship, but it’s too narrow to characterize Dan as a “patent” scholar. I always viewed Dan as a “law and technology” scholar or, perhaps even more precisely, a “law and science” scholar. His work frequently considered the implications of new technological and scientific developments for the law. It was consistent with those scholarly interests that Dan was at the vanguard of Internet Law scholarship, where he made several impactful contributions.

I want to say a few extra words about Dan’s 1995 article, “Trademarks Along the Infobahn: A First Look at the Emerging Law of Cybermarks.”

[Nomenclature notes: To be honest, I’m not sad that the term “cybermark” didn’t catch on, despite Dan’s second attempt in 2010 to make cybermarks happen. Dan didn’t create the “infobahn” analogy, but fortunately it too has faded].

Dan wasn’t a regular contributor to the trademark scholarship, but he had much to teach other trademark experts when he directed his energies that way. In the Trademarks Along the Infobahn article, Dan ran through a series of analogies to consider the application of trademark law to domain names. The paper says that “cyberspace is not unique in harboring designators that function as both names and addresses,” and it then identified some ways the domain name system was like other addressing systems and other ways in which the domain name system was in fact unique.

In retrospect, this paper deploys the now-standard methodology of Internet Law scholarship. It describes the Internet in technological terms, makes analogies to other media, and tries to isolate what’s unique, special, or different about the new technology. However, when Dan wrote this paper in 1995, that template didn’t exist. He helped set it.

It’s also noteworthy that Dan published this paper in the inaugural edition of the Richmond Journal of Law and Technology, which claims to be the first exclusively online law review. Today, many law reviews have online-only companions or publish only online; but in 1995, the world was skeptical of online content. Many academics did not view an online-only publication as a “legitimate” or “credible” publication and thus would have refused to publish there. Dan saw the future of journal publishing more clearly than many of his contemporaries. His willingness to publish in the Richmond JOLT helped validate the journal’s–and the genre’s–legitimacy.

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Unlike some other academic disciplines, the IP academic community generally welcomes new members. Dan embodied that attitude. Over the course of decades, he generously and personally welcomed dozens/hundreds of junior scholars and actively integrated them into the community. Dan wasn’t the only senior IP scholar to do this, but Dan’s leadership strongly reinforced the norm.

With respect to Dan’s mentorship of me, I could easily rattle off a dozen ways Dan boosted my career, but none are more important than how he helped me join the community. In an email to Dan last month, I told him:

As you may recall, you and Mark [Lemley] were my two primary advisors in Fall 2001 as I navigated the law professor hiring market. I was pretty clueless about the process and I didn’t do any of the traditional steps to prepare for the search. Nevertheless, you were patient with my newbie questions, you were generous with your time, and you were incredibly helpful–as I know you have been with dozens of other candidates over the years. I could not have succeeded with that search without your interventions, so I owe my academic career to you (and Mark). Thank you for giving me that gift. It made a material difference in my life and the lives of my family members.

I recently wrote about Pam Samuelson’s key role in my initial academic job search. I owe so much to all three.

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Dan knew everyone, and everyone knew and respected him. That meant he was one of our community’s top connectors. As a maven, he played an outsized role in personnel movements. Schools looking to hire would contact Dan for referrals. Indeed, I reached out to Dan last summer soliciting his recommendations for SCU’s search this year.

In the old days, there were very few ways for a potential lateral candidate to jump-start a move. AALS did little to support lateral movements (that’s improved only slightly), and it was considered bad form to publicly express one’s interest in lateraling.

Instead, candidates interested in a lateral move could privately “register” with Dan, which is what I did when I was ready to relocate from Wisconsin back to California. Telling Dan about my ambitions gave me a tiny bit of agency in an opaque and seemingly random lateral search process. (Other mavens I contacted: Mark Lemley, Graeme Dinwoodie, and Bobbi Kwall). My story was not unique. Everyone told Dan about their goals, and he kept tabs on pretty much everyone. As a result, Dan facilitated dozens or even hundreds of job placements over his career. Without Dan playing that maven role, our community becomes a little less liquid and well-informed. We’re all poorer for that.

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I’ll let Dan have the last words in this post. Last month, Dan told me:

I have no serious regrets.  I’ve had a fantastic marriage for 36 years.  My career has gone far better than anyone would have imagined.  I have had amazing opportunities and experiences I couldn’t have foreseen.  I have used up far more than my share of the planet’s resources.  I have engaged with amazing colleagues and collaborators.  It’s all good.

For more on Dan’s legacy, see this Kudoboardזיכרונו לברכה

UPDATE: The University of Minnesota School of Law memoriam.‎

UPDATE: The videos from the UC Irvine memorial event. Also, UC Irvine put together a playlist of videos from Dan’s time there.