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Articles 721 - 743 of 743
Full-Text Articles in Entire DC Network
Dastar Corp. V. 20th Century Fox Film Corp., Malla Pollack
Dastar Corp. V. 20th Century Fox Film Corp., Malla Pollack
Malla Pollack
Amicus brief filed in support of Dastar regarding use of Lanham Act to stop distribution of copyrightable works which are no longer within copyright protection. Supreme Court decision 123 S. Ct. 2041 (2003).
Dealing With Old Father William, Or Moving From Constitutional Text To Constitutional Doctrine: Progress Clause Review Of The Copyright Term Extension Act, Malla Pollack
Malla Pollack
The author suggests a textual approach to the choice of review standards for statutes enacted purusant to the so-called Intellectual Property Clause, which is more properly named the Progress Clause. Turning to text of the Constitution s relatively unproblematic because the Progress Clause contains unusually detailed constitutional text. Furthermore, what little the Court has stated about the fundamental goals of the Clause matches the author's reading of its text. Any approach based on the drafting or ratification discussions stumbles on the thinness of the record, as well as the record's possible unreliability. The text supports a standard of review higher …
What Is Congress Supposed To Promote? Defining ‘Progress” In Article I, Section 8, Clause 8 Of The U.S. Constitution, Or Introducing The Progress Clause, Malla Pollack
Malla Pollack
Empirical reserach into ratification-era uses of the word "progress" in the United States demonstrates that this word, as used in Article One, Section Eight, Clause Eight, means "spread," i.e. diffusion, distribution. To the extent that Congress chooses not to act under this clause, the default position is that each person in the United States has a property right not to be excluded from publicly accessible knowledge and technology. Congress has only a very limited power to create private quasi-property, i.e., rights to exclude the rest of the commoners. Congress may only create temporary individual rights for "authors" or "inventors" to …
The Multiple Unconstitutionality Of Business Method Patents: Common Sense, Congressional Choice, And Constitutional History, Malla Pollack
The Multiple Unconstitutionality Of Business Method Patents: Common Sense, Congressional Choice, And Constitutional History, Malla Pollack
Malla Pollack
Business method patents are of sufficiently doubtful constitutionality that the Supreme Court should either render them void or, at the least, require a clear Congressional fact finding that they are likely to promote the "Progress of . . . [the] Useful Arts." Four separate arguments support this conclusion. First, common sense shows that patents on business methods do not promote progress. Second, Congress has not considered whether business method patents are likely to promote progress. Third, "useful arts," as that phrase is used in the Constitution, does not include mere commerce. Lastly, the historical background of the Intellectual Property Clause …
The Architecture Of The International Intellectual Property System, Graeme Dinwoodie
The Architecture Of The International Intellectual Property System, Graeme Dinwoodie
Graeme B. Dinwoodie
No abstract provided.
Trademark And Copyright: Complements Or Competitors?, Graeme Dinwoodie
Trademark And Copyright: Complements Or Competitors?, Graeme Dinwoodie
Graeme B. Dinwoodie
No abstract provided.
Purveyance And Power Or Over-Priced Free Lunch: The Intellectual Property Clause As An Ally Of The Takings Clause In The Public’S Control Of Government, Malla Pollack
Malla Pollack
Government can bypass citizen control if it can use revenue not publicly scrutinized through the public taxing/spending system. One method of bypass is paying with non-monetary compensation such as (i) property, or (ii) the right to charge others for some necessary good or service, intangible property. The Takings/Just Compensation Clause of the Fifth Amendment is one authority controlling government's ability to bypass financial scrutiny. In this article, I argue that the Intellectual Property Clause also should be used to control some governmental bypass. I attempt to justify this suggestion both theoretically and historically. The historical material included focuses on English …
J.E.M. Ag Supply V. Pioneer, Malla Pollack
J.E.M. Ag Supply V. Pioneer, Malla Pollack
Malla Pollack
Brief argues against allowing utility patents on plants reproduced from seed without a clearer statement by Congress. Decision at 534 U.S. 124 (2002).
Comment, Computer-Aided Drug Design Using Patented Compounds: Infringement In Cyberspace?, Ted L. Field
Comment, Computer-Aided Drug Design Using Patented Compounds: Infringement In Cyberspace?, Ted L. Field
Ted L. Field
No abstract provided.
The Development And Incorporation Of International Norms In The Formation Of Copyright Law, Graeme Dinwoodie
The Development And Incorporation Of International Norms In The Formation Of Copyright Law, Graeme Dinwoodie
Graeme B. Dinwoodie
The means by which international norms are developed and incorporated in the formation of copyright law have changed dramatically in recent years. In this article, Professor Dinwoodie explores the nature of those changes. The classical model of international copyright law afforded countries significant latitude to implement international standards in ways tailored to their own economic and cultural priorities. The lack of an effective method of enforcing international standards consolidated that deference to national autonomy. And international treaties tended merely to codify existing commonly accepted national standards. This model has undergone changes of late, most notably (but not exclusively) in the …
The Owned Public Domain: The Constitutional Right Not To Be Excluded – Or The Supreme Court Chose The Right Breakfast Cereal In Kellogg V. National Biscuit Co., Malla Pollack
Malla Pollack
Before the rise of law and economics, the Supreme Court decided several cases involving patent holders' attempts to use trademark doctrines to slow down competitors after the expiration of their utility patents; in each of these cases, the Court enforced a public right to use material in the public domain. To give one famous example, Kellogg Co. v. National Biscuit Co., the "shredded wheat case," came to the Court after the expiration of a product and process utility patent on that once-innovative breakfast cereal. The Court held that a competitor could freely copy the product's name and its well known …
Traffix Devices V. Marketing Displays, Malla Pollack
Traffix Devices V. Marketing Displays, Malla Pollack
Malla Pollack
Brief argues against allowing extension of utility patent through trade dress protection. Opinion at 523 U.S. 23 (2001).
Southco V. Kanebridge, Malla Pollack
Southco V. Kanebridge, Malla Pollack
Malla Pollack
Brief arguing against copyright protection for parts numbers. Opinion 258 F.3d 148 (3rd Cir. 2001); see also appeal after remand, 390 F.3d 276 (3rd Cir. 2004) (en banc).
Veeck V. Sbcci, Malla Pollack
Veeck V. Sbcci, Malla Pollack
Malla Pollack
Brief argues against copyright in enacted statutes which are identical in wording to privately authored model codes. Decision at 293 F.3d 791 (5th Cir. 2002) (en banc).
Complexity And Copyright In Contradiction, Michael J. Madison
Complexity And Copyright In Contradiction, Michael J. Madison
Michael J. Madison
The title of the article is a deliberate play on architect Robert Venturi?s classic of post-modern architectural theory, Complexity and Contradiction in Architecture. The article analyzes metaphorical ?architectures? of copyright and cyberspace using architectural and land use theories developed for the physical world. It applies this analysis to copyright law through the lens of the First Amendment. I argue that the ?simplicity? of digital engineering is undermining desirable ?complexity? in legal and physical structures that regulate expressive works.
The Right To Know?: Delimiting Database Protection At The Juncture Of The Commerce Clause, The Intellectual Property Clause, And The First Amendment, Malla Pollack
Malla Pollack
The people of the United States have a constitutional right to know; the government has a duty not to block access to information. The First Amendment and the Intellectual Property Clause cabin the Commerce Clause. Congress cannot create a quasi-property right to exclude others from information without clearly demonstrating market failure. Sui generis protection of data bases does not meet this threashold requirement.
Legal-Ware: Contract And Copyright In The Digital Age, Michael J. Madison
Legal-Ware: Contract And Copyright In The Digital Age, Michael J. Madison
Michael J. Madison
ProCD, Inc. v. Zeidenberg, which enforced a "shrinkwrap" license for computer software, has encouraged the expansion of the shrinkwrap form beyond computer programs, forward, onto the Internet, and backward, toward such traditional works as books and magazines. Authors and publishers are using that case to advance norms of information use that exclude, practically and conceptually, a robust public domain and a meaningful doctrine of fair use. Contesting such efforts by focusing on the contractual nature of traditional shrinkwrap, by relying on market principles, on adhesion theory, on commercial law concepts of usage and custom, or on federal preemption doctrine, feeds …
Time To Dilute The Dilution Statute And What Not To Do When Opposing Legislation: Beyond A Comment On Professor Port's The "Unnatural" Expansion Of Trademark Rights: Is A Federal Dilution Statute Necessary?, Malla Pollack
Malla Pollack
This article has three goals: to state clearly the practical problems with the Federal Trademark Dilution Act of 1995, to suggest modifications to deal with these problems, and to explore why prior opposition pieces did not garner support from the uncommitted. This last project requires a subject for the dissection table. Because it won the coveted Ladas Memorial Award for the best trademark article in 1994 and because it was published by the Trademark Reporter just before Congress voted on the Act, this article focuses on Kenneth Port's article, "The 'Unnatural' Expansion of Trademark Rights: Is a Federal Dilution Statute …
Unconstitutional Incontestability?: The Intersection Of The Intellectual Property And Commerce Clauses Of The Constitution: Beyond A Critique Of Shakespeare Co. V. Silstar Corp., Malla Pollack
Malla Pollack
This article makes several assertions: (1) The Intellectual Property Clause of the Constitution, even read with the Commerce Clause, prevents Congress from giving authors or inventors exclusive rights unbounded by premeasured time limitations; (2) Because such limits exist, even incontestable trademarks must be subject to functionality challenges in order to prevent conflict with the Patent Clause; (3) The Intellectual Property Clause requires a similar challenge to prevent conflict with the Copyright Clause; (4) The states are also limited by either direct constitutional mandate or statutory preemption. Based on the first two assertions, this article argues that the Fourth Circuit's decision …
A Rose Is A Rose Is A Rose--But Is A Costume A Dress?, Malla Pollack
A Rose Is A Rose Is A Rose--But Is A Costume A Dress?, Malla Pollack
Malla Pollack
Law differs from life. If a judge, or more importantly a justice, calls a tail a leg, the tail does become a leg. Or, to be precise, the owner of the tail is treated as if he owned a leg. This short essay deals with the changeable meaning of the words "utilitarian function" and "useful article" in the Copyright Act. To be specific, is the Eastern District of New York correct in grouping a Halloween costume with a dress, rather than with a nose mask? This absurd question, timely reraised just after Halloween, is another chimera in the horror house …
Your Image Is My Image: When Advertising Dedicates Trademarks To The Public Domain--With An Example From The Trademark Counterfeiting Act Of 1984, Malla Pollack
Malla Pollack
Trademark laws protect the mental association between the source n4 of a product and the product itself. This protection allows consumers to locate merchandise of known quality, and motivates suppliers to produce better merchandise. The extent to which trademarks are property rights owned by the controller of the items they identify is controversial. These dual purposes of trademark protection are often phrased as if the objectives reinforce one another. Sometimes, however, the interests conflict. If the public's interests are not recognized they cannot be protected. This article suggests the existence of an ignored public ownership interest. Trademarks may become communicative …
The Author In Copyright: Notes For The Literary Critic, Monroe Price, Malla Pollack
The Author In Copyright: Notes For The Literary Critic, Monroe Price, Malla Pollack
Malla Pollack
This article discusses disparate approaches to the under-theorized concept of authorship in American copyright jurisprudence. This article has been reprinted in "The Construction of Authorship" (eds. Martha Woodmansee & Peter Jazi, 1994).
Intellectual Property Protection For The Creative Chef, Or How To Copyright A Cake: A Modest Proposal, Malla Pollack
Intellectual Property Protection For The Creative Chef, Or How To Copyright A Cake: A Modest Proposal, Malla Pollack
Malla Pollack
This Note presents an original proposal for extending copyright protection to food (not to the appearance of the food, nor to the recipe for the food, but to the food itself). Because of the unusual nature of the suggestion, the Note begins with a detailed statement of the proposal: the intended beneficiaries, the dearth of current protection, and the recommended judicial action. It then covers the proposal's relationship to the Constitution and the legislative history of the 1976 Copyright Act. Finally, the Note briefly discuss the proposal's administrability. The Note also includes several wonderful recipes -- especially the epidome of …