Law Commons^™

The Flourishing Race: How The Success Of American Indian Artist-Entrepreneurs Underscores The Need For Enhanced Legal Protections For Native Intellectual Property, Jessica Roberts

American Indian Law Journal

No abstract provided.

Intellectual Property For Breakfast: Market Power And Informative Symbols In The Marketplace, P. Sean Morris

Cleveland State Law Review

This Article continues to examine an important question: are trademarks a source of market power, or, put differently, when are trademarks an antitrust problem? This fundamental question is a cause of division among antitrust and intellectual property law scholars. However, by raising the question and presenting some scenarios that can provide answers, my hope is that contemporary antitrust and intellectual property scholars can explore some of its implications. As part of my own quest to address this question, I explore the proposition that creative deception and the wealth-generating capacity of trademarks are unorthodox elements that actually contribute to allegations of …

Copyrighting Experiences: How Copyright Law Applies To Virtual Reality Programs, Alexis Dunne

The Journal of Business, Entrepreneurship & the Law

This note will attempt to shed light on the question of what kind of protection copyright law affords VR experiences. Part II discusses the nature of VR experiences and their implementation through specifically tailored VR technology. Part III provides an overview of copyright protection, its limitations, and specifically the history of the copyrightability of computer programs. Parts IV and V outline case law relevant to the discussion of the copyrightability of different types of VR experiences and how that case law similarly or dissimilarly apply to the protection of VR experiences. Part IV focuses on protecting VR experiences as a …

Patently Inconsistent: State And Tribal Sovereign Immunity In Inter Partes Review, John Mixon

St. John's Law Review

(Excerpt)

This Note is composed of four parts. Part I reviews the origins, development, and purpose of both tribal and state sovereign immunity, compares the two doctrines, and concludes that the two are functionally the same despite deriving from different historical roots. Part II provides an overview of the history and purpose behind the patent system, the America Invents Act, and IPRs. Part II also analyzes the constitutionality of IPRs, as decided by the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. Part III introduces and addresses the five IPR decisions on state sovereign …

Nerf This: Copyright Highly Creative Video Game Streams As Sports Broadcasts, Madeleine A. Ball

William & Mary Law Review

Since the 1980s, video games have grown exponentially as an entertainment medium. Once relegated to the niche subcultures of nerds, video games are now decidedly mainstream, drawing over 200 million American consumers yearly. As a result, the industry has stepped up its game. No longer simply a diversion to be enjoyed individually, Americans are increasingly watching others play video games like they might watch television. This practice, where enthusiastic gamers broadcast their video game session online to crowds of viewers, is called “live streaming.”

While streaming has become lucrative and popular, American copyright law currently nerfs this nascent industry. Streams …

The Internet Of Bodies, Andrea M. Matwyshyn

William & Mary Law Review

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal …

Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder

Duke Law & Technology Review

No abstract provided.

Selling Wine Without Bottles: The Economy Of Mind On The Global Net, John Perry Barlow

Duke Law & Technology Review

No abstract provided.

Imaginary Bottles, Jessica Litman

Duke Law & Technology Review

No abstract provided.

The Past And Future Of The Internet: A Symposium For John Perry Barlow

Duke Law & Technology Review

No abstract provided.

The Enigma Of Digitized Property A Tribute To John Perry Barlow, Pamela Samuelson, Kathryn Hashimoto

Duke Law & Technology Review

No abstract provided.

It's Time For An American (Data Protection) Revolution, Mark Peasley

Akron Law Review

The European Union’s General Data Protection Regulation is the most comprehensive, far-reaching, and forward-thinking piece of legislation to be passed in recent history. The GDPR will set the European Union far ahead of the United States when it comes to protecting personal information, but fear not; many of the GDPR’s requirements reach across the Atlantic and will offer a trickle-down benefit to United States citizens as entities move towards compliance. However, this is only an unintended benefit of the GDPR. Currently, the United States takes a piecemeal approach to data protection that focuses on the type of information stored, which …

Blunting The Later-Mover Advantage: Intellectual Property And Knowledge Transfer, Irina D. Manta, Mattias G. Ottervik

Akron Law Review

The United States followed a path of initially giving little protection to intellectual property (IP) so that the country could benefit from the IP of nations we term earlier-movers on the world stage of economic development. This symposium piece argues that Japan and China have been following a similar trajectory in their intellectual property laws while progressing on their own economic climb. Widespread international outsourcing of manufacturing has made intellectual property a key asset for private companies, which has strengthened the tendencies of earlier-movers to formulate and enforce strict intellectual property laws. This suggests that countries like China respond not …

Ai & Ip Innovation & Creativity In An Age Of Accelerated Change, Daryl Lim

Akron Law Review

From a glimmer in the eye of a Victorian woman ahead of her time, AI has become a cornerstone of innovation that “will be the defining technology of our time.” Around 2016, the convergence of computing power, funding, data, and open-source platforms tipped us into an AI-driven 4IR. AI can make a difference in accelerating disruptive innovation by bringing a data-driven approach to invention and creation. To do so, the law must embrace change and innovation as an imperative in a journey towards an ever-shifting horizon. In the creative arts, the work for hire doctrine provides a pragmatic legal vehicle …

Venue One Year After Tc Heartland: An Early Empirical Assessment Of The Major Changes In Patent Filing, Shawn P. Miller

Akron Law Review

In its May 2017 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, the Supreme Court reined in the Federal Circuit’s permissive venue standard, which had fueled the rise of the Eastern District of Texas as the busiest patent trial court in the nation and the preferred filing location of patent assertion entities (PAEs), derisively known as patent trolls. While the new limits of permissible venue in patent cases continue to be demarcated in the lower courts, sufficient time has passed since TC Heartland to begin to investigate the impact of the decision across a number of dimensions. …

A Global Perspective On Digital Sampling, Loren E. Mulraine

Akron Law Review

The state of the law in the United States is complicated by the fact that the de minimis doctrine is, and has been a muddled doctrine. Copyright law and patent law allow future authors and inventors to build upon the works of previous rights holders. In the patent world, the new work must be a non-obvious improvement on the original patent. In copyright, the key is that the secondary user cannot take a substantial portion of the prior author’s copyrightable expression. There is no infringement without substantial similarity. By definition, a de minimis taking is the polar opposite of substantial …

Biotechnology Patent Law Top Ten Of 2018 Broad Wins, Sovereignty Loses, And Patent Dance, Kevin E. Noonan, Andrew W. Torrance

Akron Law Review

In this article, we discuss what we consider to be the ten important and influential biotechnology patent law judicial decisions of 2018. These hinged on a variety of patent doctrines. An abbreviated new drug application (ANDA) for the multiple sclerosis drug Ampyra set the stage for the Acorda Therapeutics, Inc. v. Roxane Laboratories, Inc. (Fed. Cir. 2018) decision, in which the Court of Appeals for the Federal Circuit (Federal Circuit) provided guidance on how to conduct an obviousness analysis (35 U.S.C. §103). The Berkheimer v. HP Inc. (Fed. Cir. 2018) decision, although addressing a software invention, provided valuable insight into …

Confusing The Similarity Of Trademarks Law In Domain Name Disputes, Christine Haight Farley

Akron Law Review

This article anticipates doctrinal disorder in domain name disputes as a result of the new generic top-level domains (gTLDs). In the course of the intense and prolonged debate over the possibility of new gTLDs, no one seems to have focused on the conspicuous fact that domain name disputes incorporating new gTLDs will be markedly different from the first-generation domain name disputes under previous gTLDs. Now second-generation disputes will have the added feature of the domain name having a suffix that will likely be a generic word, geographic term, or trademark. This addition is significant. Rather than disputes over , we …

Reconceptualizing The Role Of Intellectual Property Rights In Shaping Industry Structure, Peter Lee

Vanderbilt Law Review

Technological and creative industries are critical to economic and social welfare, and the forces that shape such industries are important subjects of legal and policy examination. These industries depend on patents and copyrights, and scholars have long debated whether exclusive rights promote industry consolidation (by shoring up barriers to entry) or fragmentation (by promoting entry of new firms). Much hangs in the balance, for the structure of these IP- intensive industries can determine the amount, variety, and quality of drugs, food, software, movies, music, and books available to society. This Article reconceptualizes the role of patents and copyrights in shaping …

Consequences For Patent Owners If A Patent Is Unconstitutionally Invalidated By The Patent Trial And Appeal Board, Mark Magas

Chicago-Kent Law Review

There have been many constitutional challenges against the Patent Trial and Appeal Board (“PTAB”) since it was created by the America Invents Act in 2011. While the merits of these challenges have been widely debated, there has been little analysis of what would happen if one of these challenges succeeded and patents are found to have been unconstitutionally invalidated. This note examines how issues with waiver, retroactivity, and finality may prevent patent owners from getting their patent rights back, considering the type of constitutional challenge and the different stages of the PTAB process. While the odds are stacked against patent …

Care For A Sample? De Minimis, Fair Use, Blockchain, And An Approach To An Affordable Music Sampling System For Independent Artists, Sean M. Corrado

Fordham Intellectual Property, Media and Entertainment Law Journal

Thanks, in part, to social media and the digital streaming age of music, independent artists have seen a rise in popularity and many musicians have achieved mainstream success without the affiliation of a major record label. Alongside the growth of independent music has come the widespread use of music sampling. Sampling, which was once depicted as a crime perpetrated by hip-hop artists, is now prevalent across charttopping hits from all genres. Artists have used sampling as a tool to integrate cultures, eras, and styles of music while experimenting with the bounds of musical creativity. Artists whose works are sampled have …

A Patent Reformist Supreme Court And Its Unearthed Precedent, Samuel F. Ernst

Fordham Intellectual Property, Media and Entertainment Law Journal

How is it that the Supreme Court, a generalist court, is leading a project of innovation reform in our times while the court of appeals established to encourage innovation is having its precedent stricken down time and again? This decade the Supreme Court has issued far more patent law decisions than in any decade since the passage of the Patent Act of 1952. In doing so, the Supreme Court has overruled the Federal Circuit in roughly threequarters of the patent cases in which the Supreme Court has issued opinions. In most of these cases, the Supreme Court has established rules …

Argh, No More Pirating America’S Booty: Improving Copyright Protections For American Creators In China, Johnathan Ling

Fordham Intellectual Property, Media and Entertainment Law Journal

The advent of the internet brought about revolutionary changes and challenges to the world. Internet piracy is one area which is presenting new challenges, particularly to copyright holders such as artists, filmmakers, and creators. China has been a hotbed of piracy and is home to the second highest number of file sharing infringers in the world. China has made strides to improve its copyright protection, such as implementing a copyright law in 1990, as well as joining the World Trade Organization and signing on to the Agreement on Trade-Related Aspects of Intellectual Property Rights, which specifies minimum levels of intellectual …

Weeding Out Wolves: Protecting Speakers And Punishing Pirates In Unmasking Analyses, Nathaniel Plemons

Vanderbilt Journal of Entertainment & Technology Law

This Note examines the prevalence of anonymous internet speakers, the practical and legal issues that courts confront when balancing the rights of anonymous internet speakers with those of plaintiffs seeking to unmask them, and the serious dangers courts expose speakers to if wrongfully unmasked. Part I argues that internet speech merits the same First Amendment protections as traditional speech, notes the unique benefits of anonymous internet speech, examines the practical difficulties faced by courts and plaintiffs in unmasking anonymous speakers, and details the immense dangers these speakers face if wrongfully exposed. Part II analyzes the most common approaches courts use …

Towards A Jurisprudence Of Fashion, Susan Scafidi

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.