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Full-Text Articles in Law
Copyright's Market Gibberish, Andrew Gilden
Copyright's Market Gibberish, Andrew Gilden
Washington Law Review
There is a growing contradiction at the core of copyright law. Although courts and scholars frequently assert that copyright is only about authors’ economic interests, copyright law routinely protects interests such as privacy, sexual autonomy, reputation, and psychological well-being. It just uses the language of money and markets to do so. This Article shows that copyright law routinely uses economic rhetoric to protect a broad range of noneconomic interests—a practice this Article names “market gibberish.” Market gibberish muddies copyright jurisprudence and has sweeping practical, conceptual, and distributive impacts. In a wide range of copyright cases, plaintiffs use economic and market-based …
No Forum To Rule Them All: Comity And Conflict In Transnational Frand Disputes, Eli Greenbaum
No Forum To Rule Them All: Comity And Conflict In Transnational Frand Disputes, Eli Greenbaum
Washington Law Review
Recent years have seen an explosion in FRAND litigation, in which parties commit to license intellectual property under “fair, reasonable and non-discriminatory” (FRAND) terms, but they cannot agree on the meaning of that commitment. Much of this litigation is multinational and involves coordinating patent, antitrust, and contract claims across several jurisdictions. A number of courts and commentators have aimed to centralize and thereby streamline these disputes, whether by consolidating all litigation in one judicial forum or through the creation of a comprehensive arbitral process. This Article argues that such efforts are misguided—FRAND disputes are particularly unamenable to centralization, and the …
Global Rate Setting: A Solution For Standards-Essential Patents?, Jorge L. Contreras
Global Rate Setting: A Solution For Standards-Essential Patents?, Jorge L. Contreras
Washington Law Review
The commitment to license patents that are essential to technical interoperability standards on terms that are fair, reasonable, and non-discriminatory (FRAND) is a fundamental mechanism that enables standards to be developed collaboratively by groups of competitors. Yet disagreements over FRAND royalty rates continue to bedevil participants in global technology markets. Allegations of opportunistic hold-up and hold-out arise with increasing frequency, spurring competition authorities to investigate and intervene in private standardsetting. And litigation regarding compliance with FRAND commitments has led courts around the world to adjudicate FRAND royalty rates, often on a global basis, but using very different methodologies and doctrinal …
Who Decides Fair Use–Judge Or Jury?, Ned Snow
Who Decides Fair Use–Judge Or Jury?, Ned Snow
Washington Law Review
For more than two-hundred years, the issue of fair use has been the province of the jury. That recently changed when the Federal Circuit Court of Appeals decided Oracle America, Inc. v. Google LLC. At issue was whether Google fairly used portions of Oracle’s computer software when Google created an operating system for smartphones. The jury found Google’s use to be fair, but the Federal Circuit reversed. Importantly, the Federal Circuit applied a de novo standard of review to reach its conclusion, departing from centuries of precedent. Oracle raises a fundamental question in jurisprudence: Who should decide an issue–judge …
Patent Law And The Emigration Of Innovation, Gregory Day, Steven Udick
Patent Law And The Emigration Of Innovation, Gregory Day, Steven Udick
Washington Law Review
Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. Because, however, patent law is bound by strict territorial limitations, one cannot strengthen patent protection by innovating abroad; as a result, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent. In essence, then, there is a debate pitting industry leaders against scholarship about whether firms can use offshore innovation to secure stronger patent rights, influencing the rate of innovation. To resolve this puzzle, we offer a novel theory of patent rights—which we …
Stealing Swagger: Nfl End Zone Celebrations And Fortnite's Fortune, Alex Avakiantz
Stealing Swagger: Nfl End Zone Celebrations And Fortnite's Fortune, Alex Avakiantz
Washington Law Review
Football is a staple in many American households: each week, millions watch the game. Every year, National Football League athletes benefit by taking advantage of this passion, not only by earning millions of dollars in salary, but also by signing lucrative endorsement deals. While success on the field is a starting point, an athlete with a captivating personality stands to gain even more financially. A unique end zone celebration that captures fans’ hearts contributes to that personality and makes the player more marketable. In 2017, after announcing plans to relax the rules against end zone celebrations, the National Football League …