Law Commons^™

Tokenized: The Law Of Non-Fungible Tokens And Unique Digital Property, Joshua A.T. Fairfield

Indiana Law Journal

Markets for unique digital property—digital equivalents of rare artworks, collectible trading cards, and other assets that gain value from scarcity—have exploded in the past few years. At root is the next iteration of blockchain technology, unique digital assets called non-fungible tokens. Unlike bitcoin, where one coin is the same as another, NFTs are unique, each with different attributes. An NFT that represented ownership of Boardwalk would be quite different from one that represented Baltic Avenue.

NFTs have grown from a few early breakout successes to a rapidly developing market for unique digital treasures. The attraction to buyers is that, unlike …

The Law Of Employee Data: Privacy, Property, Governance, Matthew T. Bodie

Indiana Law Journal

The availability of data related to the employment relationship has ballooned into an unruly mass of performance metrics, personal characteristics, biometric recordings, and creative output. The law governing this collection of information has been awkwardly split between privacy regulations and intellectual property rights, with employees generally losing on both ends. This Article rejects a binary approach that either carves out private spaces ineffectually or renders data into isolated pieces of ownership. Instead, the law should implement a hybrid system that provides workers with continuing input and control without blocking efforts at joint production. In addition, employers should have fiduciary responsibilities …

Patent Inconsistency, Saurabh Vishnubhakat

Indiana Law Journal

Despite the promise of efficiency through the use of expert agency adjudication in U.S. patent law, administrative substitution continues to fall short. In a variety of ways, the decade-old system of Patent Office adjudication is simply an additional place to litigate rather than the robust technocratic alternative it was meant to be. These problems have arisen from important defects in the statutory design, but also from the enormous expansion and ascendancy of the Patent Office itself. Moreover, while duplicative litigation over patent validity is recognized and criticized, its scale and scope has eluded detailed empirical analysis until now. This Article …

Measuring Trademark Dilution By Tarnishment, Suneal Bedi, David Reibstein

Indiana Law Journal

The law of trademark tarnishment—a type of trademark dilution—is in disarray. The

basic definition is deceptively simple. Trademark tarnishment occurs when a junior

mark harms the reputation of a substantially similar existing senior trademark by

associating itself with something perverse or deviant. However, it turns out that

Congress and the courts disagree over the prima facie evidence necessary to prove

its existence. The problem is that federal law and related legal principles are simply

ill-equipped to adequately analyze this unique market-driven doctrine. To make

matters worse, legal scholars cannot even agree on whether trademark tarnishment

can empirically exist in the …

A Serendipitous Experiment In Percolation Of Intellectual Property Doctrine, Daniel R. Cahoy, Lynda J. Oswald

Indiana Law Journal

This Article fills a gap in the literature by providing novel and unique empirical evidence of the impact of percolated intellectual property doctrine versus the impact of isolated doctrine from a specialized court. It relies on the U.S. Supreme Court’s paired decisions in 2014 in Octane Fitness, LLC v. ICON Health & Fitness, Inc.15 and Highmark, Inc. v. Allcare Health Management Systems, Inc.16 to highlight a natural forum for evaluating the effects of percolation on federal legal doctrine. At issue in those cases was the fee-shifting language of Section 285 of the Patent Act: “The court in exceptional cases may …

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Indiana Law Journal

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property, Stefan Bechtold, Christopher Buccafusco, Christopher Jon Sprigman

Indiana Law Journal

All creativity and innovation build on existing ideas. Authors and inventors copy, adapt, improve, interpret, and refine the ideas that have come before them. The central task of intellectual property (IP) law is regulating this sequential innovation to ensure that initial creators and subsequent creators receive the appropriate sets of incentives. Although many scholars have applied the tools of economic analysis to consider whether IP law is successful in encouraging cumulative innovation, that work has rested on a set of untested assumptions about creators’ behavior. This Article reports four novel creativity experiments that begin to test those assumptions. In particular, …

University Ip: The University As Coordinator Of The Team Production Process, Samuel Estreicher, Kristina A. Yost

Indiana Law Journal

This Article focuses on intellectual property (IP) issues in the university setting. Often, universities require faculty who have been hired in whole or in part to invent to assign inventions created within the scope of their employment to the university. In addition, the most effective way to secure compliance with the Bayh-Dole Act, which deals with ownership of inventions involving federally funded research, is for the university to take title to such inventions. Failure to specify who has title can result in title passing to the government. Once the university asserts ownership, it then decides whether to process a patent …

Learning From Copyright's Failure To Build Its Future, Ken Burleson

Indiana Law Journal

Since file sharing emerged in the late 1990s, copyright infringement has been widespread and virtually impervious to legal sanctions. Despite the best efforts of industry representatives and the lawmakers acting at their behest, attempts to scare and shame copyright infringers into compliance with the law have fallen flat. Part I of this Note discusses the ongoing conflict between modern copyright law and socially acceptable behavior, specifically copyright infringement through digital means. Part II explores the various attempts, and subsequent failures, to curb infringement through deterrence measures. Part III explains why deterrence has been ineffective by exploring psychological models of law-abiding …

An Empirical Study Of Certain Settlement-Related Motions For Vacatur In Patent Cases, Jeremy Bock

Indiana Law Journal

When parties jointly move to vacate otherwise proper rulings as part of a settlement agreement, district courts often oblige. While the general practice of vacating rulings to facilitate settlement has been criticized in the academic literature as depriving the public of the benefit of judicial precedents, there are hardly any empirical studies on the prevalence of this practice and its effects, particularly at the district court level where the efficiencies arising from settlement—and the resulting pressure on the court to grant vacatur—are much greater compared to the appellate level. This Article endeavors to add an empirical study to the literature …

Dynamic Federalism And Patent Law Reform, Xuan-Thao Nguyen

Indiana Law Journal

Patent law is federal law, and the normative approach to patent reform has been top down, looking to Congress and the Supreme Court for changes to the broken and complex patent system. The normative approach thus far has not yielded satisfactory results. This Article challenges the static approach to patent reform and embraces the dynamic-federalism approach that patent reform can be an overlapping of both national and local efforts. Patent reform at the local level is essential as locales can serve as laboratories for changes, vertically compete with national government to reform certain areas of the patent system, and become …

The International Enclosure Movement, Peter K. Yu

Indiana Law Journal

No abstract provided.

Intellectual Property: Old Boundaries And New Frontiers, Richard A. Epstein

Indiana Law Journal

Addison C. Harris Lecture, November 9,2000.

Fame, Roberta Rosenthal Kwall

Indiana Law Journal

No abstract provided.

Graduate Students' Ownership And Attribution Rights In Intellectual Property, Sandip H. Patel

Indiana Law Journal

No abstract provided.

Copyright And Software Technology Infringement: Defining Third Party Development Rights, Raymond T. Nimmer, Patricia A. Krauthaus

Indiana Law Journal

No abstract provided.

A Proposal For National Uniform Art-Proceeds Legislation, Ann Louise Straw

Indiana Law Journal

No abstract provided.