Digital Commons Network^™

Keynote Lecture For Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - 2008, Wendy J. Gordon

Scholarship Chronologically

One of the things that unifies many of the scholars in IP generally, and in this room in particular, is an interest in what you might call noncommercial models cooperative sharing, peer-to-peer creativity-a yearning for a different kind of life, perhaps, one that's less commercial, more focused on dialogues, both democratic and personal, and a mode of life that emphasizes the process and product of work rather than its monetary payoff. We all know from the work of Teresa Amabile and Alfie Cohen and our own experience that if you are keeping your eye on a monetary goal or getting …

Intellectual Property Piracy: Perception And Reality In China, The United States, And Elsewhere, Aaron Schwabach

Faculty Scholarship

No abstract provided.

Trademark Litigation As Consumer Conflict, Michael Grynberg

College of Law Faculty

Trademark litigation typically unfolds as a battle between competing sellers who argue over whether the defendant's conduct is likely to confuse consumers. This is an unfair fight. In the traditional narrative, the plaintiff defends her trademark while simultaneously protecting consumers at risk for confusion. The defendant, relatively speaking, stands alone. The resulting "two-against-one" storyline gives short shrift to the interests of nonconfused consumers who may have a stake in the defendant's conduct. As a result, courts are too receptive to nontraditional trademark claims where the case for consumer harm is questionable. Better outcomes are available by appreciating trademark litigation's parallel …

Level Of Skill And Long-Felt Need: Notes On A Forgotten Future, Joe Miller

Scholarly Works

The Supreme Court's KSR decision transforms the way we think about patent law's ordinary artisan. The ordinary artisan, the Supreme Court states, is also a person of ordinary creativity, not an automaton. This transformation, which sweeps aside a contrary precept that had informed the Federal Circuit's nonobviousness jurisprudence for a generation, raises a key question: How do we fill out the rest of our conception, in a given case, of the ordinary artisan's level of skill at the time the invention was made? Reaching back to a large vein of case law typified by Judge Learned Hand's decisions about nonobviousness, …

Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach. Law: From Private To Public Good?, Jerome Reichman

The Honorable Helen Wilson Nies Memorial Lecture

Prof. Reichman describes the growth and consequences of new intellectual property rights given to pharmaceutical developers, and it advocates treating clinical trials as a public good. Although the soaring cost of clinical trials is well known and discussed, too little attention is given to the underlying rationale for allowing drug developers to recoup their costs through the new intellectual property rights provided in multilateral, regional, and bilateral agreements. Known in the US as 'market exclusivity' and in Europe as 'data exclusivity,' these rights prohibit would-be generic producers from obtaining regulatory approval based on the original producers’ undisclosed test data.

Playing In The Virtual Arena: Avatars, Publicity, And Identity Reconceptualized Through Virtual Worlds And Computer Games, Jon M. Garon

Faculty Scholarship

In many respects, the commercial and social interactions within virtual worlds are essentially the same as those interactions conducted face-to-face or over less engrossing technologies, however, the immersive nature of the virtual world redefines the nature of the experience. Because virtual worlds mimic their bricks-and-mortar counterparts, they exhibit commercial attributes unlike those of plays, television shows, or motion pictures. To the extent that there is commerce conducted within the medium, the historic separation between commercial conduct and expressive speech must be reconceptualized. In the first instance, such legal line drawing will necessarily be done with crude tools, so this article …

What If Drm Fails?: Seeking Patronage In The Iwasteland And The Virtual O , Jon M. Garon

Faculty Scholarship

Section 1201 of the 1998 Digital Millennium Copyright Act provided sweeping protection for technological measures or virtual locks on digital content to protect the entertainment industries-including music, films, games, and consumer electronics. Manufacturers use digital rights management (DRM) authorized under the law to lock down all software embedded in products, movies on DVDs, and audio files sold on iTunes and other Internet sites. DRM unfairly extends copyright and that legal protection is unnecessary to the robust development of new creative works Critics of the DMCA have charged that the law has extended well past its anti-piracy role to undermine fair …

The Mythical Beginnings Of Intellectual Property, Jessica Silbey

Faculty Scholarship

People commonly justify intellectual property protection with homage to utilitarianism (protecting the incentive to create, invent, or produce quality goods to maximize net social welfare) or natural rights (people should own the product of their creative, inventive, or commercial labor). Despite the ongoing dominance of these theories, a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection remains. One reason for this failure is that economic analysis of intellectual property law tends to undervalue its humanistic element. Whereas utilitarianism and natural rights theories are familiar, at least one other basis for intellectual property protection exists. This …

Law's Complexity: A Primer, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The legal system. It rolls easily off the tongues of lawyers like a single word - the legal system - as if we all know what it means. But what is the legal system? How does it behave? What are its boundaries? What is its input and output? How will it look in one year? In ten years? How should we use it to make change in some other aspect of social life? Why do answers to these questions make the legal system seem so complex? Would assembling a cogent, descriptively accurate theory of what makes the legal system complex …

Viewing Virtual Property Ownership Through The Lens Of Innovation, Ryan G. Vacca

Law Faculty Scholarship

Over the past several years scholars have wrestled with how property rights in items created in virtual worlds should be conceptualized. Regardless of how the property is conceptualized and what property theory best fits, most agree the law ought to recognize virtual property as property and vest someone with those rights.

Common Ground: The Case For Collaboration Between Anti-Poverty Advocates And Public Interest Intellectual Property Advocates, Deborah J. Cantrell

Publications

This article examines the previously unappreciated common ground between scholars and advocates who work to eliminate poverty, and scholars and advocates who work on intellectual property issues in the public interest. The article first illustrates how scholars and advocates working on poverty and on public interest intellectual property have relied on rights talk to frame their social movements. Under the conventional narrative, the framing has accentuated differences between the movements. As the Article explains, the two movements share core principles and should recognize shared interests and goals. By developing a new model of how to view public interest movements, the …

Filtering, Piracy Surveillance And Disobedience , Sonia K. Katyal

Faculty Scholarship

There has always been a cyclical relationship between the prevention of piracy and the protection of civil liberties. While civil liberties advocates previously warned about the aggressive nature of copyright protection initiatives, more recently, a number of major players in the music industry have eventually ceded to less direct forms of control over consumer behavior. As more aggressive forms of consumer control, like litigation, have receded, we have also seen a rise in more passive forms of consumer surveillance. Moreover, even as technology has developed more perfect means for filtering and surveillance over online piracy, a number of major players …

Inventors, Entrepreneurs, And Intellectual Property Law, Michael J. Meurer

Faculty Scholarship

I am not sure why small business concerns have not had more influence on IP law. Perhaps the sentiment prevailing in antitrust law spilled over into IP law. American antitrust law has reached a near consensus that small firms get no special treatment under a law designed to protect competition, not competitors. ° In contrast, European competition law regulators are more likely to protect small business, and European patent policymakers openly fret about how to reform their patent law to promote small business.²

Regardless, my concern in this Article is mostly with the normative question: Should IP law favor …

Faculty Handbook, Georgia Southern University

Faculty Handbooks

Faculty Handbook for Georgia Southern University for the 2008-2009 academic year. The Faculty Handbook is published online by the Office of the Vice President for Academic Affairs and archived in Digital Commons@Georgia Southern.

Acquiring Innovation, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

In recent years, the innovation market has witnessed a new business model involving companies that are mere patent holding shells and not operating entities. They have no customers or products to offer, but they do have an aggressive tactic of using patent portfolios to threaten other operating companies with potential infringement litigation. The strategy is executed with the end goal of extracting handsome settlements. Acquisitions of patents for offensive use have become a major concern to operating companies because such acquisitions pose the threats of patent injunction, interrupting the business and crippling further innovation.

While many operating companies today know …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline D. Lipton

Articles

When the Oscar-winning actress, Julia Roberts, fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual's persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

Book Review. From Edison To Ipod: Protect Your Ideas And Make Money By Frederick W. Mostert And Lawrence E. Apolzon, Yvonne Cripps

Articles by Maurer Faculty

No abstract provided.

Harry Potter And The (Re)Order Of The Artists: Are We Muggles Or Goblins?, Gary Pulsinelli

Scholarly Works

In "Harry Potter and the Deathly Hallows," author J.K. Rowling attributes to goblins a very interesting view of ownership rights in artistic works. According to Rowling, goblins believe that the maker of an artistic object maintain an ongoing ownership interest in that object even after it is sold, and is entitled to get it back when the purchaser dies. While this view may strike some as rather odd when it is applied to tangible property in the 'muggle' world, it actually has some very interesting parallels to the legal treatment of intangible property, particularly in the areas of intellectual property …

In Memoriam: Professor Joseph J. Beard, Douglas D. Scherer

Scholarly Works

No abstract provided.

Fair Circumvention, Timothy K. Armstrong

Faculty Articles and Other Publications

Judicial decisions construing the key liability provisions of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. - 1201, cluster around two incompatible poles. One set of decisions construes the DMCA's liability provisions broadly, emphasizing the need to prevent possible copyright infringement and limit the public availability of tools that may be used to infringe. Other cases construe the same language narrowly, stressing the avoidance of anticompetitive market distortions. Both sets of decisions insist that their interpretation is commanded by the literal text of the DMCA. A closer look, however, reveals that both sides have overstated the support they may plausibly …

Teaching Trademark Theory Through The Lens Of Distinctiveness, Mark P. Mckenna

Journal Articles

This contribution to the annual teaching edition of the Saint Louis University Law Journal encourages teachers to begin trademark law courses using the concept of distinctiveness as a vehicle for articulating producer and consumer perspectives in trademark law. Viewing the law through these sometimes different perspectives helps in approaching a variety of doctrines in trademark law, and both perspectives are relatively easy to grasp in the context of distinctiveness.

Claims To Information Qua Information And A Structural Theory Of Section 101, Kevin Emerson Collins

Articles by Maurer Faculty

In this article, I start from the premises that claims to inventive information qua information are not and should not be patentable, and I pursue two lines of inquiry. First, I argue that a structural theory of Section l0l of the Patent Act provides a policy-driven, conceptually coherent and statutorily justified interpretation that explains why claims to inventive information qua information should be excluded from the realm of patentable subject matter. In brief, patentable subject matter must be restricted in this manner to preserve the duality of claiming and disclosing upon which the entire patent regime is constructed.

Second, I …