Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 47
Full-Text Articles in Law
Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein
Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein
Georgia Law Review
Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …
Give Starving Artists A Piece Of The Ip Pie: Making Room At The Table For Performers’ Rights, Meagan A. Sharp
Give Starving Artists A Piece Of The Ip Pie: Making Room At The Table For Performers’ Rights, Meagan A. Sharp
Journal of Intellectual Property Law
Creators protect their valuable intellectual property interests through copyright. Historically, stage performers struggled to secure copyright ownership in their performances within a larger production. As the theatre landscape changes, however, trends indicate that producers will increasingly rely on performers to develop characters and shows. This reliance could prove to be an exploitative practice if performers do not receive additional compensation for their part in creating successful works. This Note first examines the meanings of authorship, fixation, and control under the Copyright Act of 1976, then widens its lens to consider alternate interpretations of these technical terms in light of an …
Rethinking "Reasonableness": Implementation Of A National Board To Clarify The Trade Secret Standard Now That The Work-From-Home Culture Has Changed The Rules, Hannah E. Brown
Journal of Intellectual Property Law
Under the federal Defend Trade Secrets Act (“DTSA”), almost any type of information can qualify as a trade secret but only if the owner has taken “reasonable measures” to keep such information secret. Under case law, what is “reasonable” varies and may differ based on the court, the company size, and the particular facts of each situation. The interpretation of what is “reasonable” must change with the times, specifically, to take into consideration the sharp increase in remote work that accompanied the COVID-19 pandemic. The rise in remote work necessarily means more servers accessing data and more remote transmission of …
Intellectual Heirs Property: Why Certain Musical Copyrights Should Be Included In The Heirs Property Reform Movement, Austin Weatherly
Intellectual Heirs Property: Why Certain Musical Copyrights Should Be Included In The Heirs Property Reform Movement, Austin Weatherly
Journal of Intellectual Property Law
The modern heirs property reform movement seeks to ameliorate the issues caused by the procedures governing the inheritance of real property from landowners who die intestate. This procedure can have a negative impact on heirs and the value of their inherited property. The reform movement, as it stands, only seeks to resolve the issues created by these procedures in the real property context. The rhetorical basis for the modern heirs property reform movement largely focuses on closing the racial wealth gap in the United States and slowing the wealth bleed from one black generation to the next. Many of the …
Patent Performativity, Dan L. Burk
Patent Performativity, Dan L. Burk
Journal of Intellectual Property Law
Gender bias is rife in the patent system; a large and growing body of empirical literature demonstrates the exclusion of women from the patent system at every level. Such pervasive marginalization cannot be explained by the paucity of women in STEM fields. Rather, more fundamental discriminatory mechanisms must be at work. In this paper I examine one aspect of such biases, arguing that patents operate as performatives, that is, as social assemblages that enact what they disclose, and that create their own social facts. To demonstrate patent performativity, I briefly trace the development of performative concepts, from Austinian declarations, through …
Evidence-Based Patent Damages, Taorui Guan
Evidence-Based Patent Damages, Taorui Guan
Journal of Intellectual Property Law
No abstract provided.
U.S. Supreme Court I.P. Cases, 1810-2019: Measuring & Mapping The Citation Networks, Joseph S. Miller
U.S. Supreme Court I.P. Cases, 1810-2019: Measuring & Mapping The Citation Networks, Joseph S. Miller
Scholarly Works
Intellectual property law in the United States, though shaped by key statutes, has long been a common-law field to a great degree. Many decades of decisional law flesh out the meaning of broad-textured, sparely worded statutes. Given the key roles of patent law and copyright law, both federal, the Supreme Court of the United States is i.p. law’s leading apex court. What are the major topical currents in the Supreme Court’s i.p. cases, both now and over the course of the Court’s work? This study uses network-analysis tools to measure and map the entirety of the Court’s i.p. jurisprudence. It …
Law's Semantic Self-Portrait: Discerning Doctrine With Co-Citation Networks And Keywords, Joseph S. Miller
Law's Semantic Self-Portrait: Discerning Doctrine With Co-Citation Networks And Keywords, Joseph S. Miller
Scholarly Works
An apex court’s body of cases has an internal texture, continually augmented by recent citations to earlier, topically related cases. How can we best describe that texture? The citation network shows a path. Specifically, what past Supreme Court cases do more recent Supreme Court cases tend to cite together, as if a topical pair? Using a web of those oft-cited pairs, what noun phrases appear in a given cluster of cases more often, relative to the rate at which those phrases appear in writings more generally? To answer these questions is to map, in detail, a body of decisional law. …
Code Revision Commission V. Public.Resource.Org And The Fight Over Copyright Protection For Annotations And Commentary, David E. Shipley
Code Revision Commission V. Public.Resource.Org And The Fight Over Copyright Protection For Annotations And Commentary, David E. Shipley
Scholarly Works
This article is about the Eleventh Circuit’s 2018 decision in Code Revision Commission v. Public.Resource.Org concerning the public edicts doctrine and holding that the State of Georgia’s copyright on the annotations, commentary and analyses in the Official Code of Georgia Annotated is invalid. About a third of the States claim copyright in the annotations to their codes so the potential impact of this decision is substantial. The U.S. Supreme Court granted Georgia’s petition for a writ of certiorari on Monday, June 24.
The article’s thesis is that the Eleventh Circuit was wrong and should be reversed. It first discusses the …
Brandeis’S I.P. Federalism: Thoughts On Erie At Eighty, Joseph S. Miller
Brandeis’S I.P. Federalism: Thoughts On Erie At Eighty, Joseph S. Miller
Scholarly Works
Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference …
Derivative Works And Making Sense Of The Maxim That 'Others Are Free To Copy The Original. They Are Not Free To Copy The Copy.', David E. Shipley
Derivative Works And Making Sense Of The Maxim That 'Others Are Free To Copy The Original. They Are Not Free To Copy The Copy.', David E. Shipley
Scholarly Works
This is a paper about some of the most entertaining and challenging cases in America’s copyright law jurisprudence concerning derivative works as copyrightable subject matter, and the closely related right to prepare derivative works. The cases are entertaining because they involve very familiar works of authorship, and they are challenging because the rulings are often difficult to reconcile due to the fact that the courts are grappling with copyright’s elusive originality standard as applied to derivative works as well the copyright owner’s right to prepare derivative works. Instead of attempting to say something ‘original’ about originality, my goal for this …
Ereserves, Annotations, And Registration: Copyright At The 11th Circuit, Stephen Wolfson
Ereserves, Annotations, And Registration: Copyright At The 11th Circuit, Stephen Wolfson
Presentations
This presentation discusses eReserves, the 11th circuit and copyright issues surrounding the Georgia State University case heard by Judge Evans in 2008.
Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney’S Fees Under Section 505 Of The Copyright Act, David E. Shipley
Journal of Intellectual Property Law
The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …
A Transformative Use Taxonomy: Making Sense Of The Transformative Use Standard, David E. Shipley
A Transformative Use Taxonomy: Making Sense Of The Transformative Use Standard, David E. Shipley
Scholarly Works
The transformative use standard, which is an important aspect of copyright law’s fair use doctrine, has been confusing and uncertain since 1994 when it was first introduced by the United States Supreme Court in Campbell v. Acuff-Rose Music. To try to make some sense of this standard, this article extends the work of several scholars who have argued that the massive amount of fair use case law generally divides itself into categories, patterns or policy clusters which have their own internal coherence. This article contends that these observations apply as well to transformative use decisions more particularly, which similarly fit …
Using Signal Theory To Determine Nonobviousness Of Inventions, Michael O'Brien, Idonah Molina
Using Signal Theory To Determine Nonobviousness Of Inventions, Michael O'Brien, Idonah Molina
Journal of Intellectual Property Law
No abstract provided.
Which Supreme Court Cases Influenced Recent Supreme Court Ip Decisions? A Citation Study, Joseph S. Miller
Which Supreme Court Cases Influenced Recent Supreme Court Ip Decisions? A Citation Study, Joseph S. Miller
Scholarly Works
The U.S. Supreme Court has decided an increasing number of intellectual property cases — especially patent cases — over the last several terms. Which prior cases influence the stated reasoning in these recent Supreme Court IP cases? A handful of citation studies of supreme courts in the U.S., both state and federal, conducted over the last 40 years suggest that the Court would most often cite its own prior cases; that it would cite its more recent cases more often than its older cases; and that a small number of its prior cases would receive a large share of the …
Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley
Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley
Scholarly Works
The primary focus of this article is whether California’s forty-year old droit de suite statute; the California Resale Royalty Act (CRRA), is subject to federal preemption under the Copyright Act. This issue is now being litigated in the Ninth Circuit, and this article concludes that the CRRA is preempted under section 301(a) of the Copyright Act and under the Supremacy Clause because it at odds with copyright’s well-established first sale doctrine.
The basic idea of droit de suite is that each time an artist’s work is resold by a dealer or auction house, the artist is entitled to a royalty, …
Reasonable Certainty & Corpus Linguistics: Judging Definiteness After Nautilus & Teva, Joseph S. Miller
Reasonable Certainty & Corpus Linguistics: Judging Definiteness After Nautilus & Teva, Joseph S. Miller
Scholarly Works
In Nautilus (2014), the Supreme Court held “that a patent is invalid for indefiniteness if its claims...fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.” We don’t require perfect clarity because, as Festo (2002) highlights, patentees can’t achieve it. We don’t launch a post hoc judicial salvage operation to rescue slipshod text because, as the functional-claiming cases from the 1930s and 1940s highlight, others can’t adequately plan around it. Reasonably certain notice, then, is just right: § 112 “require[s] that a patent’s claims, viewed in light of the specification and prosecution history, …
Can China Protect The Olympics, Or Should The Olympics Be Protected From China?, Jennifer L. Donatuti
Can China Protect The Olympics, Or Should The Olympics Be Protected From China?, Jennifer L. Donatuti
Journal of Intellectual Property Law
No abstract provided.
Misreading A Canonical Work: An Analysis Of Mansfield's 1994 Study, Paul J. Heald
Misreading A Canonical Work: An Analysis Of Mansfield's 1994 Study, Paul J. Heald
Journal of Intellectual Property Law
No abstract provided.
Copyright Protection For Attorney Work Product: Practical And Ethical Considerations, Stanley F. Birch Jr.
Copyright Protection For Attorney Work Product: Practical And Ethical Considerations, Stanley F. Birch Jr.
Journal of Intellectual Property Law
No abstract provided.
L. Ray Patterson: A Selected Bibliography, Journal Of Intellectual Property Law
L. Ray Patterson: A Selected Bibliography, Journal Of Intellectual Property Law
Journal of Intellectual Property Law
No abstract provided.
Trips Article 31(B) And The Hiv/Aids Epidemic, Johanna Kehl
Trips Article 31(B) And The Hiv/Aids Epidemic, Johanna Kehl
Journal of Intellectual Property Law
No abstract provided.
An Experimental Approach To The Study Of Social Norms: The Allocation Of Intellectual Property Rights In The Workplace, Yuval Feldman
An Experimental Approach To The Study Of Social Norms: The Allocation Of Intellectual Property Rights In The Workplace, Yuval Feldman
Journal of Intellectual Property Law
No abstract provided.
Exceptionally Vague: Attorney Fee Shifting Under The Lanham Act, Kelsie Willett
Exceptionally Vague: Attorney Fee Shifting Under The Lanham Act, Kelsie Willett
Journal of Intellectual Property Law
No abstract provided.
Patenting Marijuana Strains: Baking Up Patent Protection For Growers In The Legal Fog Of This Budding Industry, Joseph Dylan Summer
Patenting Marijuana Strains: Baking Up Patent Protection For Growers In The Legal Fog Of This Budding Industry, Joseph Dylan Summer
Journal of Intellectual Property Law
No abstract provided.
Clearing The Brush: The Best Solution For The Uspto’S Continued “Deadwood” Problem, Leonard Robert Seifter Iii
Clearing The Brush: The Best Solution For The Uspto’S Continued “Deadwood” Problem, Leonard Robert Seifter Iii
Journal of Intellectual Property Law
No abstract provided.
The Road To Hell Was Paved With A Good Faith Belief: Why The Supreme Court Correctly Rejected The Good Faith Belief In The Invalidity Of A Patent Defense For Dangerously Narrowing Induced Infringement Liability, Sidney C. Eberhart
Journal of Intellectual Property Law
No abstract provided.
A New Test To Reconcile The Right Of Publicity With Core First Amendment Values, Mark Joseph Stern, Nat Stern
A New Test To Reconcile The Right Of Publicity With Core First Amendment Values, Mark Joseph Stern, Nat Stern
Journal of Intellectual Property Law
No abstract provided.
Distinguishing Literary Ideas And Expressions With Elements Of Alternate Worlds, Joshua Jeng
Distinguishing Literary Ideas And Expressions With Elements Of Alternate Worlds, Joshua Jeng
Journal of Intellectual Property Law
No abstract provided.