Digital Commons Network^™

A Framework For Managing Disputes Over Intellectual Property Rights In Traditional Knowledge, Stephen R. Munzer

Michigan Journal of Race and Law

Major controversies in moral and political theory concern the rights, if any, Indigenous peoples should have over their traditional knowledge. Many scholars, including me, have tackled these controversies. This Article addresses a highly important practical issue: Can we come up with a solid framework for resolving disputes over actual or proposed intellectual property rights in traditional knowledge?

Yes, we can. The framework suggested here starts with a preliminary distinction between control rights and income rights. It then moves to four categories that help to understand disputes: nature of the traditional knowledge under dispute; dynamics between named parties to disputes; unnamed …

Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski

Articles

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies.

Cryptic Patent Reform Through The Inflation Reduction Act, Arti K. Rai, Rachel Sachs, Nicholson Price

Law & Economics Working Papers

If a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (IRA) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to …

A System Out Of Balance: A Critical Analysis Of Philosophical Justifications For Copyright Law Through The Lenz Of Users' Rights, Mitchell Longan

University of Michigan Journal of Law Reform

Ultimately, this Article has three goals. The first is to offer an analysis of users’ rights under copyright law from four commonly used theoretical perspectives. These are labor, personality, economic and utilitarian theories. In doing so, this Article will demonstrate that the philosophies that underpin modern copyright law support a broad and liberal set of rights for derivative creativity. It will argue that current treatment of derivative works is unnecessarily conservative from a theoretical perspective. Second, this Article will demonstrate how, in spite of theory that supports a healthy community of derivative creativity, those who practice it have been further …

Mandating Repair Scores, Aaron Perzanowski

Articles

Restrictions on the repair of consumer goods have generated no shortage of policy proposals. This Article considers the empirical and legal case for one particular intervention—requiring firms to calculate and disclose their products’ scores on a uniform reparability index. These repair scores would provide consumers with salient information at or before the point of sale, enabling them to compare products on the basis of the ease and cost of repair. There is considerable empirical research, including assessments of France’s implementation of a similar requirement in recent years, suggesting that repair scores would both inform and empower consumers. Despite likely First …

Privatizing Copyright, Xiyin Tang

Michigan Law Review

Much has been written, and much is understood, about how and why digital platforms regulate free expression on the internet. Much less has been written— and even much less is understood—about how and why digital platforms regulate creative expression on the internet—expression that makes use of others’ copyrighted content. While § 512 of the Digital Millennium Copyright Act regulates user-generated content incorporating copyrighted works, just as § 230 of the Communications Decency Act regulates other user speech on the internet, it is, in fact, rarely used by the largest internet platforms—Facebook and YouTube. Instead, as this Article details, creative speech …

Equitable Ecosystem: A Two-Pronged Approach To Equity In Artificial Intelligence, Rangita De Silva De Alwis, Amani Carter, Govind Nagubandi

Michigan Technology Law Review

Lawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining …

Copyright Infringement And Enforcement In Ghana: A Comparative Study, Doreen Adoma Agyei

SJD Dissertations

Copyright infringement is a widespread problem in developed and developing nations and particularly concerning in Ghana. Many talented creators in Ghana have a strong desire to produce original creative works and are enthusiastic about committing themselves to this pursuit. Additionally, many more aspire to pursue these endeavours into professional careers. However, upon releasing their works, they are unfortunately immediately faced with infringements in nearly all copyright industries. These violations have become so common that they have unfairly placed rightsholders’ original works in competition with the infringers. Within this context, many talented creators, mostly self-funded, lack the incentive to pursue their …

The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson

Articles

The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …

Inequitable By Design: The Patent Culture, Law, And Politics Behind Covid-19 Vaccine Global Access, Ximena Benavides

University of Michigan Journal of Law Reform

COVID-19 vaccine access has been highly inequitable worldwide, with coverage depending largely on a country’s wealth. By the end of 2021, 64.1% of people living in high-income countries had received at least one dose of the vaccine, compared to only 5.4% of those in low-income countries. Similarly, only high- and upper-middle-income countries had received the most effective vaccines.

The uneven distribution of these lifesaving vaccines is made complex due to the convergence of several factors, but it suggests that the extraordinary expanding and ossifying market and political power of a few vaccine manufacturers founded on intellectual property and complementary policies …

The Ascension Of Indigenous Cultural Property Law, Angela R. Riley

Michigan Law Review

Indigenous Peoples across the world are calling on nation-states to “decolonize” laws, structures, and institutions that negatively impact them. Though the claims are broad based, there is a growing global emphasis on issues pertaining to Indigenous Peoples’ cultural property and the harms of cultural appropriation, with calls for redress increasingly framed in the language of human rights. Over the last decade, Native people have actively fought to defend their cultural property. The Navajo Nation sued Urban Outfitters to stop the sale of “Navajo panties,” the Quileute Tribe sought to enjoin Nordstrom’s marketing of “Quileute Chokers,” and the descendants of Tasunke …

Cloud Gaming Demystified: An Introduction To The Legal Implications Of Cloud-Based Videogames, Mitchell Longan, Gaetano Dimita, Johan David Michels, Christopher Millard

Michigan Technology Law Review

In this paper, we “demystify” cloud-based videogaming and its legal implications, in two stages. First, we describe the videogame sector; explain the basics of cloud computing and traditional videogame technologies and set out how the two converge in cloud-based videogame systems. Based on this analysis, we distinguish three separate models for cloud gaming services: (i) the “layered” model of Gaming-as-a-Service (‘GaaS’); (ii) the ‘integrated’ model of GaaS; and (iii) the ‘consumer infrastructure-as-a-service’ model. We argue that these three models are key to analyzing how intellectual property rights, contractual rights, and regulatory issues will develop in this novel environment for videogame …

The Ping-Pong Olympics Of Antisuit Injunction In Frand Litigation, King Fung Tsang, Jyh-An Lee

Michigan Technology Law Review

In the past two years, antisuit injunctions (ASIs) and subsequent legal proceedings associated with standard-essential patents (SEPs) subject to fair, reasonable, and nondiscriminatory (FRAND) commitments have proliferated in multiple jurisdictions. This phenomenon reveals not only the transnational nature of technical standards and FRAND-encumbered SEPs but also the jurisdictional tension between different national courts. This Article explains the emergence of ASIs in FRAND scenarios and recent developments in six jurisdictions with major interests in standard development and adoption. Countries have developed different approaches to ASIs based on their own domestic rules and interests. We believe that to promote technical compatibility and …

New Innovation Models In Medical Ai, W Nicholson Price Ii, Rachel E. Sachs, Rebecca S. Eisenberg

Articles

In recent years, scientists and researchers have devoted considerable resources to developing medical artificial intelligence (AI) technologies. Many of these technologies—particularly those that resemble traditional medical devices in their functions—have received substantial attention in the legal and policy literature. But other types of novel AI technologies, such as those related to quality improvement and optimizing use of scarce facilities, have been largely absent from the discussion thus far. These AI innovations have the potential to shed light on important aspects of health innovation policy. First, these AI innovations interact less with the legal regimes that scholars traditionally conceive of as …

Contracting Tools For Transportation Data, Suzanne Bell, Olivia Dworkin

Journal of Law and Mobility

Troves of transportation data can be, and are, produced by smart infrastructure. Municipalities collect various kinds of transportation data, including traffic information such as accidents, flows, and volumes; bicycle information such as bike counts; pedestrian information such as pedestrian counts; smart bus stop information; street mapping information; location information for traffic signals; mapping details such as the miles of city streets; and information on roadwork and infrastructure planning such as construction or road closures expected to affect traffic.

Governments, educational institutions, non-profit enterprises, and businesses find transportation data useful for purposes such as improving infrastructure, reducing traffic congestion, improving vehicle …

The “License As Tax” Fallacy, Jonathan M. Barnett

Michigan Technology Law Review

Intellectual property licenses are commonly portrayed as a “tax” that limits access to technology assets, which in turn stunts innovation by intermediate users and inflates prices for end-users. Renewed skepticism toward IP licensing, and associated judicial and regulatory interventions that apply per se-like liability rules under patent and antitrust law to IP licensing, overlook the fact that IP licenses typically play a “positive-sum” enabling function, rather than a “zero-sum” exclusionary function, by mitigating expropriation risks that would otherwise frustrate transactions between the holders of complementary specialized IP and non-IP assets. As illustrated by paradigm examples of licensing and other IP-dependent …

Data Privacy, Human Rights, And Algorithmic Opacity, Sylvia Lu

Fellow, Adjunct, Lecturer, and Research Scholar Works

Decades ago, it was difficult to imagine a reality in which artificial intelligence (AI) could penetrate every corner of our lives to monitor our innermost selves for commercial interests. Within just a few decades, the private sector has seen a wild proliferation of AI systems, many of which are more powerful and penetrating than anticipated. In many cases, AI systems have become “the power behind the throne,” tracking user activities and making fateful decisions through predictive analysis of personal information. Despite the growing power of AI, proprietary algorithmic systems can be technically complex, legally claimed as trade secrets, and managerially …

Marijuana And Patents: The Complicated Relationship Between Patent Rights And The Federal Criminalization Of Marijuana, Reza Roghani Esfahani, Howard Bromberg

Articles

Difficult questions arise in the context of marijuana-related inventions, patent procurement, and patent enforcement. These questions are a subset of the contradictions in the law of marijuana, where the federal government prohibits marijuana use and yet many of the states legalize, regulate, and tax it. This federal prohibition could discourage research into the health effects of marijuana and makes it difficult for marijuana-related innovations to satisfy statutory patentability requirements. It also renders enforcement of marijuana patents questionable, making marijuana businesses and patent owners vulnerable to nonpracticing patent entities, sometimes called "patent trolls."

Edward S. Rogers, The Lanham Act, And The Common Law, Jessica Litman

Book Chapters

This book chapter is a deep dive into the story of Edward Sidney Rogers's authorship of the legislation that became the Lanham Act. Because Rogers believed that Congress lacked the power to alter the substantive law of trademark and unfair competition, he crafted draft legislation that focused on registration and other procedural details rather than substantive rights and defenses. He sought to advance two incompatible goals: he hoped to preserve the robust common law of unfair competition while requiring, or at least encouraging, all trademark owners to register their marks. Both the supporters and the opponents of the bills that …

An Empirical Study: Willful Infringement & Enhanced Damages In Patent Law After Halo, Karen E. Sandrik

Michigan Technology Law Review

For decades, companies and attorneys have instructed teams of engineers, researchers, and computer scientists to ignore patents. The reasoning for this advice: if there is no pre-suit knowledge of a patent, then it is nearly impossible for a patent holder to prove that enhanced damages are warranted. Pre-suit knowledge is a prerequisite for a finding of willful infringement, which is itself a prerequisite for awarding enhanced damages. The median patent damages award is around ten million dollars, and large companies like Intel, Teva Pharmaceuticals, Microsoft, and Abbott Laboratories have all recently faced billion-dollar patent infringement judgments. In this landscape, a …

The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won

Michigan Law Review

Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck.

This …

Pushing Back On Stricter Copyright Isp Liability Rules, Pamela Samuelson

Michigan Technology Law Review

For more than two decades, internet service providers (ISPs) in the United States, the European Union (EU), and many other countries have been shielded from copyright liability under “safe harbor” rules. These rules apply to ISPs who did not know about or participate in user-uploaded infringements and who take infringing content down after receiving notice from rights holders. Major copyright industry groups were never satisfied with these safe harbors, and their dissatisfaction has become more strident over time as online infringements have grown to scale.

Responding to copyright industry complaints, the EU in 2019 adopted its Directive on Copyright and …

Enabling Science Fiction, Camilla A. Hrdy, Daniel H. Brean

Michigan Technology Law Review

Patent law promotes innovation by giving inventors 20-year-long exclusive rights to their inventions. To be patented, however, an invention must be “enabled,” meaning the inventor must describe it in enough detail to teach others how to make and use the invention at the time the patent is filed. When inventions are not enabled, like a perpetual motion machine or a time travel device, they are derided as “mere science fiction”—products of the human mind, or the daydreams of armchair scientists, that are not suitable for the patent system.

This Article argues that, in fact, the literary genre of science fiction …

Symposium: Diamond Anniversary: 75 Years Of The Lanham Act, Jessica Litman

Articles

Thank you so much for inviting me. I think this is my fifth or sixth event with the Arts and Entertainment Law Journal. It’s always lots of fun, and I learn a lot. I’ve been spending the last couple of months doing a deep dive into everything Edward Sidney Rogers with no real agenda. I’m exploring what’s there, to see if there are any interesting stories I might tell. I found a few, so this afternoon I’ll tell one of them. I want to start with the mundane observation that intellectual prop-erty and intellectual property law are global. We’ve seen …

New Innovation Models In Medical Ai, Nicholson Price Ii, Rachel Sachs, Rebecca S. Eisenberg

Law & Economics Working Papers

In recent years, scientists and researchers have devoted considerable resources to developing medical artificial intelligence (AI) technologies. Many of these technologies—particularly those which resemble traditional medical devices in their functions—have received substantial attention in the legal and policy literature. But other types of novel AI technologies, such as those that relate to quality improvement and optimizing use of scarce facilities, have been largely absent from the discussion thus far. These AI innovations have the potential to shed light on important aspects of health innovation policy. First, these AI innovations interact less with the legal regimes that scholars traditionally conceive of …

Association For Molecular Pathology V. Myriad Genetics: A Critical Reassessment, Jorge L. Contreras

Michigan Technology Law Review

The Supreme Court’s 2013 decision in Association for Molecular Pathology v. Myriad Genetics is an essential piece of the Court’s recent quartet of patent eligibility decisions, which also includes Bilski v. Kappos, Mayo v. Prometheus, and Alice v. CLS Bank. Each of these decisions has significantly shaped the contours of patent eligibility under Section 101 of the Patent Act in ways that have been both applauded and criticized. The Myriad case, however, was significant beyond its impact on Section 101 jurisprudence. It was seen, and litigated, as a case impacting patient rights, access to healthcare, scientific freedom, …

Clearing Opacity Through Machine Learning, W. Nicholson Price Ii, Arti K. Rai

Articles

Artificial intelligence and machine learning represent powerful tools in many fields, ranging from criminal justice to human biology to climate change. Part of the power of these tools arises from their ability to make predictions and glean useful information about complex real-world systems without the need to understand the workings of those systems.

Digitizing Scent And Flavor: A Copyright Perspective, Amara Lopez

Michigan Technology Law Review

Should the flavor of a cheese fall under copyright protection? The Court of Justice of the European Union recently confronted this question in Levola Hengelo BV v. Smilde Foods. Although the court ultimately denied protection, its reasoning opened many doors for those seeking intellectual property protection for scents and flavors. The court implied that it was the subjective nature of a cheese flavor that bars it from enjoying the protection copyright affords, which begs the question of what would happen if there were a sufficiently objective way to describe a flavor.

Recent developments in technology have led to the digitization …

The Intellectual Property Of Vaccines: Takeaways From Recent Infectious Disease Outbreaks, Ana Santos Rutschman

Michigan Law Review Online

In late 2019 and early 2020, a new strain of coronavirus, a family of pathogens causing serious respiratory illness, began infecting populations across the globe. A quick uptick in COVID-19, the disease caused by the novel pathogen, prompted the World Health Organization to declare the outbreak a Public Health Emergency of International Concern on January 30, 2020. By mid-February 2020, with 26 countries reporting cases of COVID-19 infection, the global case count had surpassed 50,000, and had resulted in over 1,500 deaths. The World Health Organization elevated the status of the outbreak to a pandemic in mid-March. As of early …

The Cost Of Novelty, Will Nicholson Price Ii

Articles

Patent law tries to spur the development of new and better innova­tive technology. But it focuses much more on “new” than “better”—and it turns out that “new” carries real social costs. I argue that patent law promotes innovation that diverges from existing technology, either a little (what I call “differentiating innovation”) or a lot (“exploring innova­tion”), at the expense of innovation that tells us more about existing technology (“deepening innovation”). Patent law’s focus on newness is unsurprising, and fits within a well-told narrative of innovative diversity accompanied by market selection of the best technologies. Unfortunately, innovative diversity brings not only …