Law Commons^™

Why Are We So Reluctant To "Execute" Microsoft?, Robert H. Lande

All Faculty Scholarship

On June 28, 2001, the D.C. Court of Appeals held that Microsoft has violated the antitrust laws repeatedly, relentlessly, and over a multi-year period. The court ruled eight separate times that Microsoft engaged in conduct that illegally maintained its monopoly in PC operating systems. Despite these strongly worded conclusions concerning Microsoft’s liability, the court was extremely cautious when it considered whether to break up the company. It held that divestiture was a “radical” remedy that should be imposed with “great caution.”

Digital Information, Licensing, And The Threat To Fair Use, James S. Heller

Library Staff Publications

No abstract provided.

Trade Secrets, Non-Competes, And Unfair Competition, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on Trade Secrets, Non-Competes, and Unfair Competition held by UK/CLE in October 2001.

The Perfect Caper?: Private Damages And The Microsoft Case, Robert H. Lande, James Langenfeld

All Faculty Scholarship

As readers of crime novels know, there are many definitions of the perfect caper. Under most, the perpetrator gets to keep its ill-gotten gains and goes unpunished. Even if the perpetrator is arrested and brought to trial, he or she still typically escapes punishment completely due to a variety of unusual circumstances. This is essentially what Professors John E. Lopatka and William H. Page are arguing about Microsoft's actions. They assert that even though Microsoft has violated the antitrust laws, it will not be made to pay for its anticompetitive conduct, at least not by private plaintiffs.

Avoiding Intellectual Property Problems, Thomas G. Field Jr.

Law Faculty Scholarship

Patents, copyrights, trademarks, as well as trade secrets and related rights can be used to exclude free riders. These rights are usually collectively called "intellectual property" or IP. Everyone should know how to cost-effectively protect their own rights.

What Is Property's Fourth Estate - Cultural Property And The Fiduciary Ideal, Steven Wilf

Faculty Articles and Papers

No abstract provided.

Current Developments In Cyberspace, Eric Easton

All Faculty Scholarship

No abstract provided.

The Copyrightability Of New Works Of Authorship: 'Xml Schemas' As An Example, I. Trotter Hardy

Faculty Publications

No abstract provided.

Prescriptive Treaties In Global Warming: Applying The Factors Leading To The Montreal Protocol, Jasmine C. Abdel-Khalik

Faculty Works

The international community has long recognized that environmental problems can reach beyond territorial borders to affect the entire globe. The global community has also recognized that environmental problems often manifest long before the scientific community can conclusively point to a cause.

One of the main problems in resolving global warming is convincing developing nations that they can reduce their emissions without compromising their economic growth. Developing nations want to continue down the same path developed countries took to industrialize, even if it negatively affects the environment. Many of the developing nations rightfully claim that developed nations exploited the environment to …

Eldred V. Reno: An Example Of The Law Of Unintended Consequences, L. Ray Patterson

Scholarly Works

In Eldred v. Reno the U.S. Court of Appeals for the D.C. Circuit held that the Copyright Term Extension Act (CTEA), which extends the copyright term for present and future works for twenty years, was a constitutional exercise of Congress's copyright power. The CTEA thus puts an end (at least for two decades) to a policy in effect for more than two centuries, since the Copyright Act of 1790, that the copyright of a work expires at the end of a stated term defined at the time the copyright was granted. Since works were copyrighted annually, the policy meant that …

Will Architectural Works Law Have A Chilling Effect?, Robert Greenstreet, Russell Klingaman

Architecture Faculty Articles

The Architectural Works Copyright Protection Act (AWCP Act) was passed in 1990 to bring U.S. copyright law into conformance with the Berne Convention, an international treaty dealing with intellectual property. The AWCP Act has been used by architects, designers and builders to sue competitors. This article addresses a few problems associated with litigation involving copyright protection for architectural works.

Piracy, Prejudice, And Perspectives: An Attempt To Use Shakespeare To Reconfigure The U.S.-China Intellectual Property Debate, Peter K. Yu

Faculty Scholarship

Since the mid-1980s, the U.S.-China intellectual property conflict has entered into the public debate. It was frequently debated in Congress and was widely covered by the mass media. Despite the importance of this issue, the debate thus far has been one-sided, focusing primarily on the unfair competition aspect. While there are undeniably some greedy Chinese who are eager to free ride on the creative efforts of Western authors and inventors, greed alone cannot explain the century-old U.S.-China intellectual property conflict. To understand the roots of this conflict, one must focus on the significant political, social, economic and cultural differences between …

Protection Of Traditional Knowledge, Srividhya Ragavan

Faculty Scholarship

Knowledge has been the most coveted possession of mankind since the industrial revolution. The industrial boom after the World Wars has highlighted the importance of the so-called intellectual knowledge. Recently, the importance of knowledge that has been in the public domain (and, therefore, accessible) has come into question. The pattern of evolution of society, has been marked by a process by which the societies in developed countries have moved towards a more technological orientation. Consequentially, some traditional knowledge, including traditional practices, has been left behind and newer practices that are better, or at least considered better, are being used. Knowledge …

Monopolization, Innovation, And Consumer Welfare, John E. Lopatka, William H. Page

UF Law Faculty Publications

While most commentators and the enforcement agencies voice support for the consumer welfare standard, substantial disagreement exists over when economic theory justifies a presumption of consumer injury. Virtually all would subscribe to the theoretical prediction that an effective cartel will likely inflict consumer injury by reducing output and thus increasing prices. But the academic and judicial consensus disappears when the theory at issue predicts that a practice -- a merger or a predatory pricing campaign, for example -- will harm consumers in the future through some complex sequence of events.

In our view, the desire to protect innovation is legitimate, …

Ucita: Still Crazy After All These Years, And Still Not Ready For Prime Time, James S. Heller

Library Staff Publications

No abstract provided.

Trademark Law, Functional Design Features, And The Trouble With Traffix, Harold R. Weinberg

Law Faculty Scholarly Articles

This article concerns trademark law's functionality doctrine and the Supreme Court's troublesome opinion concerning it in TrafFix Devices, Inc. v. Marketing Displays, Inc. The doctrine provides that if a producer's useful or aesthetic design feature is "functional," then competitors can lawfully copy it even if the feature otherwise would be protected against copying by trademark principles. In order to introduce the functionality doctrine and the trouble with TrafFix, it is helpful to describe the nature of design features, the simultaneous roles they may play as source-identifying trade symbols and as useful or aesthetic product elements, and trademark law's place …

The Copyright Regime And Data Protection Legislation, Margaret Ann Wilkinson

Law Publications

No abstract provided.

Internet Business Model Patents: Obvious By Analogy, Margo A. Bagley

Faculty Articles

Part I of this Article provides a look at Internet business model patents in light of key patentability requirements mandated by the Patent Act. Part II traces the evolution of the analogous art component of the non-obviousness determination and illustrates how the malleability of the doctrine, as exemplified in several Court of Appeals for the Federal Circuit decisions, has particular relevance to prior art definitions for Internet business model patents. Part III of this Article then examines the doctrine of equivalents and explores how the likelihood of improper application of this doctrine in the Internet business model context is increased. …

Intent To Use: A Failed Experiment?, Amy B. Cohen

Faculty Scholarship

When Congress enacted the Trademark Law Revision Act of 1988 ("TLRA"), it made the first truly radical change in trademark law since the passage of the Lanham Act in 1946. By adding Section 1(b) to the Lanham Act allowing applications for federal trademark registration to be based on an intent to use the mark, Congress for the first time provided a way to apply for federal trademark registration before actual use of a trademark. Congress made this change to bring United States law into closer conformity with the practice elsewhere in the world where use is not a prerequisite to …

Legalize It? -Osp And Peer-To-Peer Network Liability For Online Music Copyright Infringements In The United States And Germany, Christian Nils Jochen Engelhardt

LLM Theses and Essays

It may be useful to explain why a comparative approach was chosen. It is easy and comfortable to get caught up in one's own legal system and not look abroad. It is often difficult enough to understand and apply one’s own laws accurately and the study of a foreign legal system may seem an effort too great. Yet, this reluctance to look beyond the familiar is fatal to legal development and improvement since entirely new ideas are rare in the field of law and the main source of change and new approaches is borrowing from another legal system. If one …

Fair Use And The Digital Distribution Of Music - Recording Industry Association Of America V. Napster, Inc. (A Comparative Analysis Of A Restraint On Copyright In The United States Of America And Trinidad And Tobago), Michelle Lisa Alexander

LLM Theses and Essays

The purpose of this thesis is to undertake a critical analysis of the Napster judgment and its treatment of the doctrine of fair use, to determine whether the doctrine can retain its integrity in the internet age. It is proposed that as technology advances, U.S. policymakers are moving away from the constitutional objectives of U.S. copyright law and are equating copyright interests with property rights, to the detriment of noncommercial users of copyrighted works. Further, it is suggested that the decision in the Napster litigation is important for the evolving landscape of U.S. copyright law, as it signals the difficulty …

Owning Words In Cyberspace: The Accidental Trademark Regime, David Franklyn

Publications

The domain name system presents challenges to trademark law that are unique-in both kind and degree-and that promise to have long lasting effects. Because the domain name system is essentially non-legal in character and international in scope, it is not subject to the dictates of any particular legal sovereign. Conformity with trademark law is further frustrated by the fact that the domain name system was initially developed without any thought of its potential effects on trademark rights or traditional trademark regimes. All of these factors render it particularly difficult to control as a cultural force.

The remainder of this Article …

Judicial Review Of Icann Domain Name Dispute Decisions, 18 Santa Clara Computer & High Tech. L.J. 35 (2001), David E. Sorkin

UIC Law Open Access Faculty Scholarship

No abstract provided.

Preserving The Public Trust In State-Owned Intellectual Property: A Recommendation For Legislative Action, Sharon Sandeen

Faculty Scholarship

Whether a state chooses to dedicate its intellectual property to the public domain or derive revenue from the licensing of its rights, absent express authority on the subject there is uncertainty. State employees who are aware of the existence of state-owned intellectual property are not certain how it should be managed or if they are authorized to expend state resources to pursue infringement claims. Individuals and entities who wish to use state-owned intellectual property do not know how to obtain permission for such use and without permission they cannot be certain that they will not be sued for infringement. Without …

Shifting The Paradigm In E-Commerce: Move Over Inherently Distinctive Trademarks, The E-Brand, I-Brand And Generic Domain Names Ascending To Power?, Xuan-Thao Nguyen

Articles

“What's in a name!” laments Juliet at her Shakespearean balcony. Four hundred years later, in the world of e-commerce, Juliet's question would be “What's in a domain name?” After spending all of the Montague's wealth, Romeo might be able to respond, “Call me but love.com.” The price tag for some generic domain names cost a small fortune: Sex.com for $250 million, Business.com for $7.5 million, Broadband.com for $6 million, Loans.com for $3 million, Flu.com for $1.4 million, and Bingo.com for $1.1 million.

In 1995, Procter and Gamble registered hundreds of generic domain names and offered them for sale at auction …

Does Technology Require New Law?, David D. Friedman

Faculty Publications

Technological change affects the law in at least three ways: (1) by altering the cost of violating and enforcing existing legal rules; (2) by altering the underlying facts that justify legal rules; and (3) by changing the underlying facts implicitly assumed by the law, making existing legal concepts and categories obsolete, even meaningless. The legal system can choose to ignore such changes. Alternatively, it may selectively alter its rules legislatively or via judicial interpretation. In this essay I first discuss, as an interesting historical example, past technological changes relevant to copyright law and the law's response. I then go on …

Protecting The Performers: Setting A New Standard For Character Copyrightability, Mark Bartholomew

Journal Articles

Copyright law protects expressions of ideas, but not the idea itself. Legal disputes over characters arise in the continuum between an idea for a character that has not been expressed at all, and an idea that has been given complete form and shape. The inconsistent common law tests developed to assess character copyrightability demonstrate the difficulty in pinpointing where the dividing line between an undeveloped idea and a sufficiently expressed character should be set. This Article offers a new paradigm for determining character copyrightability, particularly in the case of characters shaped through live performance, that tracks the Hegelian concept of …

On-Line Tutorial Project: Intellectual Property In E-Commerce, William J. Murphy

Law Faculty Scholarship

Copyrights, Trademarks and Patents make up most of the area of law known as Intellectual Property. Intellectual Property's importance in Electronic Commerce is difficult to overstate. The Internet has been defined as a global network of networks through which computers communicate by sending information in packets, and each network consists of computers connected by cables or wireless links. It is the Intellectual Property laws of Copyright, Trademark and Patents that are attempting to harmonize the effects that E-Commerce and the Internet have had on the individual's ability to access and use this information. It should be remembered that most countries …

Making The Most Of Commercial Global Domains, Thomas G. Field Jr

Law Faculty Scholarship

Despite echoing skepticism about the long-term prospects for commercial global domains based in part on how they are governed, this paper concludes that nominal addresses are essentially a new form of intellectual property, to be viewed and managed in ways sometimes fundamentally different from trademarks and other indicia of commercial goodwill. In support, the article first reviews the domain name system ("DNS") under which nominal addresses may be registered. The article then outlines central principles of unfair competition law underlying the resolution of disputes within the United States. Finally, the article reviews how nominal addresses pose several new kinds of …

Commentary: International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

Articles

The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection—or variations in that protection—hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing …