Law Commons^™

American Needle And The Boundaries Of The Firm In Antitrust Law, Herbert J. Hovenkamp

All Faculty Scholarship

In American Needle the Supreme Court unanimously held that for the practice at issue the NFL should be treated as a “combination” of its teams rather than a single entity. However, the arrangement must be assessed under the rule of reason. The opinion, written by Justice Stevens, was almost certainly his last opinion for the Court in an antitrust case; Justice Stevens had been a dissenter in the Supreme Court’s Copperweld decision 25 years earlier, which held that a parent corporation and its wholly owned subsidiary constituted a single “firm” for antitrust purposes. The Sherman Act speaks to this issue …

Actual Or Hypothetical: Determining The Proper Test For Trademark Licensee Rights In Bankruptcy, Laura D. Steele

Marquette Intellectual Property Law Review

As trademark rights become an increasingly valuable asset in Chapter 11 reorganizations, it is critical for Congress and the courts to clarify how trademarks will be treated in bankruptcy, particularly where the debtor is a trademark licensee. Without clarity, Chapter 11 reorganization may not be a viable option. This Comment urges that trademark licensees should not be stripped of a license simply because the licensee enters bankruptcy. Rather, where a licensee intends only to continue using an existing license under the terms of the existing agreement with the licensor, the licensee's use of that license should be uninterrupted during reorganization. …

American Needle: The Sherman Act, Conspiracy, And Exclusion, Herbert J. Hovenkamp

All Faculty Scholarship

This essay, part of a colloquium in the CPI Antitrust Journal, explores the meaning and significance of the Supreme Court’s decision in American Needle v. NFL. The Supreme Court held that for purposes of the dispute at hand the NFL should be treated as a collaboration of its member teams rather than a single entity. The factors that the Supreme Court considered most important were, first, that the NFL’s member teams are individually owned profit making entities who compete with each other in at least some economic markets, such as that for the sale of apparel bearing NFL symbols. …

Can Newspapers Be Saved? How Copyright Law Can Save Newspapers From The Challenges Of New Media, Keiyana Fordham

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Sequential Musical Creation And Sample Licensing, Peter Dicola

Faculty Working Papers

All musical creation builds on previous works. But using fragments of existing musical works in a new work can often constitute copyright infringement. Copyright law, in cases like Bridgeport Music v. Dimension Films (6th Cir. 2005), has recently increased its restrictions on musicians who wish to engage in sampling, defined as the practice of using other creators' sound recordings to create new music. The paper describes a model of copyright holders' and samplers' incentives to create in light of the need to negotiate licenses for sample-based works to avoid violating copyright law. Even in the absence of traditional transaction costs …

Shrinking The Commons: Termination Of Copyright Licenses And Transfers For The Benefit Of The Public, Timothy K. Armstrong

Faculty Articles and Other Publications

Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers.

These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used "open content" licensing arrangements, such …

Licensing And Patent Protection, Arijit Mukherjee, Aniruddha Bagchi

Faculty and Research Publications

We show the impact of technology licensing on optimal patent policy. Strong patent protection that eliminates imitation may not be the equilibrium outcome in the presence of licensing. Depending on the cost of innovation, licensing may either increase or reduce the strength of the patent protection.

We Can Work It Out: Co-Op Compulsory Licensing As The Way Forward In Improving Access To Anti-Retroviral Drugs, Horace E. Anderson

Elisabeth Haub School of Law Faculty Publications

This Article explores the social and developmental underpinnings of the access problem and describes the legal framework that provides the backdrop for the Waiver's licensing scheme. Part III examines the various lenses, humanitarian, economic, and political, through which the underutilization problem may be viewed and explained. Part IV sets out the structural heart of the Waiver scheme's deficiencies: the notion of the “compulsory” license itself. Part V posits a co-op scheme of licensing that aligns the concerns, goals, and incentives of IP owners, importers, exporters, and consumers. Finally, the Article relates the proposed scheme to more general trends in thinking …

Patent Challenges And Royalty Inflation, Michael Risch

Michael Risch

Eliminating bad patents is supposed to be a good thing, and so federal law allows any interested party to challenge a patent's validity almost any time. But the law goes a step further than merely conferring broad challenge rights. It also makes them nearly impossible to contract away. Instead, federal law voids any agreement not to challenge a patent. While a contract ordinarily signifies a final resolution of all issues covered by its terms, no such peace exists in patent licensing. This inalienability of patent challenge rights comes at a cost, a cost borne by many patent licensees and their …