Law Commons^™

To Mint Or Not To Mint: Non-Fungible Tokens And The Right Of Publicity, Hannah Bobek

Fordham Law Review

Non-fungible tokens (NFTs) allow for authentication and ownership of digital assets, which are notable features in the virtual world given the infiniteness of internet content. The emergence of this novel technology, however, has raised challenges, especially regarding enforcement of the right of publicity. This Note addresses how litigators have approached right of publicity violations arising from NFTs and how courts might respond to future violations that this technology is capable of facilitating. Legal scholars and commentators argue that certain features of NFTs pose pronounced threats to the right of publicity, namely the technology’s novelty, democratized nature, anonymization of creators, transferability …

Between Scylla And Charybdis: Addressing Software Patent Eligibility In Early-Stage Litigation, Pooja Krishnan

Fordham Law Review

The U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank International established a two-step inquiry for determining the eligibility of a patent claim for protection. The test has faced criticism for its inconsistency, particularly when evaluating software-related patents. These inconsistencies are exacerbated when the test is applied during the early stages of litigation to address motions made under Federal Rules of Civil Procedure 12(b)(6) and 12(c), as the test often requires an in-depth technical analysis of the claims.

First, this Note examines the current approach to software patent eligibility and the various points of inconsistencies and tension. This Note …

Now On Display: In-Line Linking In The Age Of The Server Test, Sonia Autret

Fordham Law Review

In 2007, the U.S. Court of Appeals for the Ninth Circuit adopted a new interpretation of 17 U.S.C. § 106(5), which codifies the display right of the Copyright Act of 1976. In Perfect 10 v. Amazon.com, the Ninth Circuit read § 106(5) to mean that creative works made visible on web pages through in-line linking, an architectural pillar of modern web design, would not infringe on a copyright owner’s display right if the work was not actually copied onto the website’s server. Since its adoption, this approach—known as the Server Test—has been lauded by search engine providers and web …

From Drawstring To Drawback: A Proposal For The Donation Alternative Program To Promote Environmental Responsibility In Fashion Act, Elliot O. Jackson

Fordham Intellectual Property, Media and Entertainment Law Journal

Given the modern interest in resold, repurposed, upcycled, and thrifted goods, the fashion industry was forced to welcome new players into its global market. In turn, these players offer new meaning to the phrase: “one man’s trash is another man’s treasure,” especially in light of post-pandemic consumer relations. Pairing creativity and innovation with existing techniques has allowed many designers, ateliers, and skilled professionals across the world to transform old or mundane goods into vibrant apparel. A worthy example of this practice is Dapper Dan’s transformation of garment bags from a high-fashion brand into upcycled or repurposed, one-of-a-kind products. The origin …

In The Thick(Et) Of It: Addressing Biologic Patent Thickets Using The Sham Exception To Noerr-Pennington, Anna Zhou

Fordham Intellectual Property, Media and Entertainment Law Journal

A biologic patent thicket occurs when a pharmaceutical company acquires a “dense web” of patents and other intellectual property rights regarding a specific product. While applying for multiple patents is permissible, the resulting protections can have antitrust implications. In an industry like biologics, where companies can acquire patent exclusivity and regulatory exclusivity over their products, the process of continuously accumulating these exclusivities seems to be an attempt to keep biosimilars at bay. Keeping competitors out of the market drives up prices and raises questions about how these regulatory and patent pathways are being used.

Recent class action litigation in the …

Global Digital Governance Through The Back Door Of Corporate Regulation, Orit Fischman-Afori

Fordham Intellectual Property, Media and Entertainment Law Journal

Today, societal life is increasingly conducted in the digital sphere, in which two core attributes are prominent: this sphere is entirely controlled by enormous technology companies, and these companies are increasingly deploying artificial intelligence (AI) technologies. This reality generates a severe threat to democratic principles and human rights. Therefore, regulating the conduct of the companies ruling the digital sphere is an urgent agenda item worldwide. Policymakers and legislatures around the world are taking their first steps in establishing a digital governance regime, with leading proposals in the EU. Although it is understood that it is necessary to adopt a comprehensive …

Solutions Still Searching For A Problem: A Call For Relevant Data To Support “Evergreening” Allegations, Erika Lietzan, Kristina Acri Née Lybecker

Fordham Intellectual Property, Media and Entertainment Law Journal

For years pharmaceutical policymaking discussions have been revolving around allegations of supposed “evergreening” by pharmaceutical companies, and policymakers have considered a range of significant policy reforms—including to antitrust law and drug regulatory law—to address this purported problem. This Article evaluates empirical data offered to substantiate “evergreening” and explains that these data—though mostly accurate—do not support proposed policy changes.

The “evergreening” claim is that by securing additional patents and FDA-related exclusivities after approval of their new drugs, brand drug companies enjoy a period of exclusivity in the market that is longer than the initial patent(s) and exclusivity on the drug would …

Protecting Producers’ Copyrights: A Proposal For Group Registration Of Non-Sample-Based Musical Beats, Matthew Roomberg

Fordham Intellectual Property, Media and Entertainment Law Journal

“Beats” are the instrumental tracks that form the foundation of hip-hop, pop, and EDM songs. The authors who create them, often called producers or beatmakers, make hundreds or thousands of new distinct beats each year to raise their chance of attaining commercial success. But wholesale pirating of original beats has become rampant, and authors face significant obstacles in the search for remedies. One such obstacle is the great difficulty and expense of registering the copyrights associated with hundreds or thousands of original beats.

Registration with the U.S. Copyright Office is a critical step to obtaining most of the remedies available …

Should Using An Ai Text Generator To Produce Academic Writing Be Plagiarism?, Brian L. Frye, Chat Gpt

Fordham Intellectual Property, Media and Entertainment Law Journal

Author's Foreword: I “wrote” this article while taking a bath with a bottle of champagne, by submitting the questions in bold to ChatGPT and copying its responses. I did not bother providing citations for ChatGPT’s claims, because they would obviously be superfluous.

Editor-in-Chief's Foreword: In 2023, the question is unavoidable: when it comes to scholarship, and in our case, legal scholarship, what do we do about artificial intelligence (AI) like ChatGPT? Do we need to do anything? In the Comment that follows, author Brian L. Frye and ChatGPT tried to provide an answer to these questions. Actually, ChatGPT did most …

Income Tax (Treasury) Unhappy: Efficacy Of Media Campaigns And Tax Noncompliance, Limor Riza

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article systematically evaluates the effectiveness of governmental media campaigns and considers whether we should invest in educating society via such campaigns to increase tax compliance, primarily in light of the intrinsic flaw of taxation.

Is a radio spot that starts with the sound of scary footsteps approaching you, followed by an announcer who says in a deep and intimidating voice, “we’re closing in on undeclared income,” effective? To answer those questions, this Article proposes and showcases a four-step analysis—the ARMS scheme (Aim, Reason, Media-Methods, Sorting). First, the government’s aim of increased tax compliance is identified and declared (Step I: …

Silly Gene Patent Is Not My Lover: A Retrospective Analysis Of Myriad, Stephanie Huang

Fordham Intellectual Property, Media and Entertainment Law Journal

The U.S. Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics, Inc. established that an isolated fragment of a gene—the basic unit of heredity—is not patent-eligible subject matter while simultaneously holding that complementary DNA (cDNA) of a gene is patent-eligible subject matter. The decision has been controversial and criticized for including two holdings that are internally inconsistent from both scientific and patent law perspectives. But are the short- and long-term criticisms overstated? A decade after Myriad, the various impacts of the case remain relevant, particularly to the biotechnology and genetic testing fields.

First, this Note examines whether Myriad …

“Can I Post This?”: A Call For Nuanced Interpretation Of Dmca Enforcement In The Age Of Social Media, Erin E. Bronner

Fordham Law Review

This Note advances recent scholarship critiquing the notice-and-takedown procedures used by online service providers (OSPs) under the safe-harbor provision of the Digital Millennium Copyright Act (DMCA)—specifically in the context of user-generated content (UGC) posted by end users on social media. Rights holders have increasingly put legal pressure on technology platforms to fortify their copyright protection mechanisms. Over the past decade, this imperative has manifested through an increased use of automated content recognition (ACR) technology to remove allegedly infringing UGC. ACR technology has gradually overtaken the manual, human review of UGC that the DMCA envisioned.

However, reliance on mass automated takedowns …

The Patent Written Description Requirement: A Requirement In Search Of A Description, Darlene M.J. Staines

Fordham Law Review

Innovation often requires a hefty investment of time and money. The patent system exists to incentivize innovation by granting inventors the exclusive use of their invention for a set period of time. In return, the public receives the benefit of the inventor’s knowledge, as well as the use of the invention once the exclusivity period ends. One of the hurdles for obtaining a patent is the written description requirement, which demands that the inventor disclose enough information to prove that they actually invented what they are seeking patent protection for. This requirement serves to prevent an undeserving “inventor” from obtaining …

Renewing Faith In Antitrust: Unveiling The Hidden Network Behind Pharmaceutical Product Hopping, Victoria Field

Fordham Journal of Corporate & Financial Law

Patents grant time-limited market exclusivity to drug manufacturers, meaning that other companies are prohibited from copying and selling the patented pharmaceutical. This allows manufacturers to lawfully charge monopoly prices. Generic competition starts at the expiration of the patent. To maintain coveted monopoly power, manufacturers often release an alternative formulation of the drug with a fresh patent that enjoys continued market exclusivity. Manufacturers who can convert their consumer base to the new formulation can continue charging peak prices. This process, called “product hopping,” has been the target of significant antitrust inquiry, with mixed results.

A product hop may be the result …

Ukraine On My Mind: Cultural Heritage And The Current Armed Conflict, Irina Tarsis

Fordham Intellectual Property, Media and Entertainment Law Journal

The following keynote address was delivered on October 7, 2022, during the Fordham Law Intellectual Property, Media & Entertainment Law Journal Symposium, “Duplicate, Decolonize, Destroy: Current Topics in Art & Cultural Heritage.” It was prefaced by a YouTube video of “Ukrainian Folk Song ARMY REMIX | Andriy Khlyvnyuk x The Kiffness.” The upbeat remix of a folk song was performed as a collaboration between South African musical talent David Scott, known as the Kiffniss, and Andriy Khlyvnyuk, the lead singer of the Ukrainian band, Boombox (Бумбокс), who took leave from his concert tours to join the military forces of Ukraine …

The Fashion Workers Act: Closing The Regulatory Loophole In The New York Fashion Industry, Kayleigh Ristuben

Fordham Intellectual Property, Media and Entertainment Law Journal

The fashion industry in New York has largely been unregulated due to a loophole in current law. This has allowed fashion models to face difficulties that would otherwise be addressed by laws regulating other occupations within the entertainment industry. The New York state senate has introduced the Fashion Workers Act which is aimed at addressing these issues and closing the regulatory loophole. This Note analyzes the existing regulatory framework in both New York and California to compare them with the proposed bill. It then uses legislative history from past regulatory attempts to anticipate and address potential industry pushback while offering …

The Case Of The Missing Device Patents, Or: Why Device Patents Matter, Erika Lietzan, Kristina M.L. Acri, Evan Weidner

Fordham Intellectual Property, Media and Entertainment Law Journal

A company that earns premarket approval of its medical device is entitled to an extension of one patent claiming the device, to make up for some of the time it spent doing premarket research. Yet, surprisingly, a mere thirteen percent of those eligible for this extension (also known as patent term “restoration”) ask for one. In contrast, most drug companies entitled to this same patent extension ask for one. In this Article, we attribute the imbalance largely to differences between the two regulatory frameworks. In brief, because the FDA classifies and regulates devices based on what they do and how …

The By-Design Approach Revisited: Lessons From Covid-19 Contact Tracing Apps, Mickey Zar, Niva Elkin-Koren

Fordham Intellectual Property, Media and Entertainment Law Journal

This paper challenges the by-design regulatory approach by exploring the case study of Contact Tracing Apps. It aims to account for the gap between the hopes that were pinned on digital technologies and the rock of reality into which they have crashed. This gap, we argue, results from overestimating the regulatory power of technology and underestimating the co-influence of various regulatory pillars. To address this gap, it is necessary to adopt an ecosystem perspective on sociotechnical systems, where technological design is but one form of regulation. This perspective allows technological design to acquire a social meaning through interaction with other …

User-Generated Data Network Effects And Market Competition Dynamics, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article defines User-Generated Data (“UGD”) network effects, distinguishes them from the more familiar concept of traditional network effects, and explores their implications for market competition dynamics. It explains that UGD network effects produce various efficiencies for digital service providers (“data platforms”) by empowering their services’ optimization, personalization, and continuous diversification. In light of these efficiencies, competition dynamics in UGD-driven markets tend to be unstable and lead to the formation of dominant multi-industry conglomerates. These processes will enhance social welfare because they are natural and efficient. Conversely, countervailing UGD network effects also empower data platforms to detect and neutralize competitive …

Access To Medicines And Pharmaceutical Patents: Fulfilling The Promise Of Trips Article 31bis, Ezinne Mirian Igbokwe, Andrea Tosato

Fordham Law Review

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has long stood accused of reducing access to medicines for the poorest and most vulnerable nations. Enacted in 1994 as one of the founding pillars of the World Trade Organization, TRIPS has enabled pharmaceutical companies to enforce their patent rights in almost every country, precluding cheaper generics from being distributed, save for very limited exceptions.

But in 2001, TRIPS was amended expressly to address this issue, allowing countries with limited resources to lodge a formal request to obtain patented medicines at a sustainable cost. Generics manufacturers worldwide can answer this …

Policy Implications Of User-Generated Data Network Effects, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

User-generated data (UGD) network effects are an exciting and novel economic force. They upset conventional market competition dynamics, and they lead to the formation of dominant data platforms with market power that spans different and seemingly unrelated markets. This article explains that UGD network effects are a blessing and a curse. They provide dominant data platforms with the opportunity to generate welfare-enhancing efficiencies as well as welfare-reducing anticompetitive harms. After exploring the economic opportunities and social threats, this article explores the implications of UGD network effects on competition policy. Drawing on traditional network effects theory, this article proposes and critically …

Trademark Counterfeiting Enforcement Beyond Borders: The Complexities Of Enforcing Trademark Rights Extraterritorially In A Global Marketplace With Territorial-Based Enforcement, Kari Kammel, Matthew Azim-Kramer, Daniel Duquet, Lillie Patterson

Fordham Intellectual Property, Media and Entertainment Law Journal

We focus on the enforcement of trademark rights, particularly those used against counterfeiters, or those who use unauthorized trademarks of another. We examine the concept of extraterritorial enforcement of trademark rights—the extending of enforcement across national borders—and reviewing how different countries and jurisdictions view this concept or even allow it.

Are Chatgpt And Other Similar Systems The Modern Lernaean Hydras Of Ai?, Dimitrios Ioannidis, Esq., Dr. Jeremy Kepner, Dr. Andrew Bowne, Lt. Col., Usaf, Harriet S. Bryant

Fordham Intellectual Property, Media and Entertainment Law Journal

The rise of Generative Artificial Intelligence systems (“AI systems”) has created unprecedented social engagement. AI code generation systems provide responses (output) to questions or requests by accessing the vast library of open-source code created by developers over the past few decades. However, they do so by allegedly stealing the open-source code stored in virtual libraries, known as repositories. This Article focuses on how this happens and whether there is a solution that protects innovation and avoids years of litigation. We also touch upon the array of issues raised by the relationship between AI and copyright. Looking ahead, we propose the …