Law Commons^™

A Loaded God Complex: The Unconstitutionality Of The Executive Branch’S Unilaterally Withholding Zero-Days, Brendan Gilligan

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Video Games And The First Amendment, Eli Pales

Northwestern Journal of Technology and Intellectual Property

The video game industry is massive, with an annual revenue of $180 billion worldwide; $60 billion of that in America alone. For context, the industry’s size is greater than that of the movie, book, and music industries combined. Yet, despite this market dominance, the video game industry is relatively new. Only in the 2011 decision of Brown v. Entertainment Merchants Association did the Supreme Court extend First Amendment protection to games. Still, the Court failed to define the scope of the game medium. As understood by an average person, a video game could be something as simple as Pac-Man or …

Toothless Trade? Implications Of The Federal Circuit’S Clearcorrect Decision For The Enforceability Of Intellectual Property Protections In Digital Trade Under Usmca, Alissa Chase

Catholic University Law Review

Digital trade is growing faster than trade in goods and services and comprises a key area for innovation and intellectual property concerns. The United States-Mexico-Canada Agreement (“USMCA”) acknowledged this development by including chapters devoted to both digital trade and intellectual property. In 2015, the Federal Circuit held that the International Trade Commission (“ITC”) does not have jurisdiction over unfairly traded digital goods. Without exclusion orders issued by the ITC, the United States lacks a powerful tool to enforce the USMCA provisions protecting intellectual property in unfairly traded digital goods. This comment explores the implications of the Federal Circuit’s 2015 ClearCorrect …

A Compulsory Solution To The Machine Problem: Recognizing Artificial Intelligence As Inventors In Patent Law, Cole G. Merritt

Vanderbilt Journal of Entertainment & Technology Law

Artificial Intelligence (AI) is already disrupting and will likely continue to disrupt many industries. Despite the role AI already plays, AI systems are becoming increasingly powerful. Ultimately, these systems may become a powerful tool that can lead to the discovery of important inventions or significantly reduce the time required to discover these inventions. Even now, AI systems are independently inventing. However, the resulting AI-generated inventions are unable to receive patent protection under current US patent law. This unpatentability may lead to inefficient results and ineffectively serves the goals of patent law.

To embrace the development and power of AI, Congress …

Property's Boundaries, James Toomey

Elisabeth Haub School of Law Faculty Publications

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of …

Foreword, Jessica Silbey

Faculty Scholarship

Most of us think we are familiar with graffiti – lettering on trains or graphic images on walls that follow us as we walk by. But Enrico Bonadio’s new book on graffiti and street art opens a door to more complex and nuanced worlds of artists and their communities. The focus is on everyday creators of graffiti and street art. Built from nearly 100 interviews and hundreds of hours of observation, the book is filled with the voices of artists and vivid details of their plein air studios and interactions. Also present in the book is the author, who weaves …

Fables Of Scarcity In Ip, Zahr K. Said

Articles

In this chapter, I use methods drawn from literary analysis to bear on artificial scarcity and explore how literary and legal storytelling engages in scarcity mongering. I find three particular narrative strategies calculated to compel a conclusion in favor of propertization: the spectacle of need, the diversionary tactic, and the rallying cry. First, I unpack the spectacle of need and its diversionary aspects through several literary accounts of scarcity and starvation. I juxtapose Franz Kafka's “A Hunger Artist,” a story explicitly centered on a wasting body, with J.M. Coetzee's The Life and Times of Michael K. Second, to explore how …

The Data Trust Solution To Data Sharing Problems, Kimberly A. Houser, John W. Bagby

Vanderbilt Journal of Entertainment & Technology Law

A small number of large companies hold most of the world’s data. Once in the hands of these companies, data subjects have little control over the use and sharing of their data. Additionally, this data is not generally available to small and medium enterprises or organizations who seek to use it for social good. A number of solutions have been proposed to limit Big Tech “power,” including antitrust actions and stricter privacy laws, but these measures are not likely to address both the oversharing and under-sharing of personal data. Although the data trust concept is being actively explored in the …

How To Get Away With Discrimination: The Use Of Algorithms To Discriminate In The Internet Entertainment Industry, Sumra Wahid

American University Journal of Gender, Social Policy & the Law

In July 2021, Ziggi Tyler posted a video on TikTok, a popular video sharing platform, where he expressed his frustration with being a Black content creator on TikTok. The video showed Ziggi typing phrases such as “Black Lives Matter” or “Black success” into his Marketplace creator bio, which the app would immediately flag as inappropriate content. However, when Ziggi replaced those words with “white supremacy” or “white success,” no inappropriateness warning appeared. Although a TikTok spokesperson responded to the video clarifying that the app had mistakenly flagged phrases without considering word order, Ziggi refused to let an algorithm absolve TikTok …

The Case Of The Missing Device Patents, Or: Why Device Patents Matter, Erika Lietzan, Kristina M. L. Acri, Evan Weidner

Faculty Publications

A company that earns premarket approval of its medical device is entitled to an extension of one patent claiming the device, to make up for some of the time it spent doing premarket research. Yet, surprisingly, a mere thirteen percent of those eligible for this extension (also known as patent term "restoration") ask for one. In contrast, most drug companies entitled to this same patent extension ask for one.

In this Article, we attribute the imbalance largely to differences between the two regulatory frameworks. In brief, because the FDA classifies and regulates devices based on what they do and how …

Conceptualizing A "Right To Research" And Its Implications For Copyright Law: An International And European Perspective, Christophe Geiger, Bernd Justin Jutte

American University International Law Review

Copyright, at international, European, and national levels, does not provide a legal framework that prioritizes enabling and incentivizing research using protected works and information to the extent necessary and desirable in a digital, data-driven society in order to build a sustainable ecosystem for innovation and creativity. While small progress has been made, for example with the recent introduction of specific exceptions for research purposes and for text and data mining in certain national legislations as well as in the European Union law, a horizontal approach towards a more research-friendly copyright ecosystem has so far failed to evolve. By revisiting international …

Avoidance Of An Unauthorized Post-Petition Transfer Of Intellectual Property Under Section 549 Of The Bankruptcy Code, Kathryn-Rose Russotto

Bankruptcy Research Library

(Excerpt)

Under section 549 of title 11 of the United States Code (the “Bankruptcy Code”), a trustee may avoid an unauthorized post-petition transfer of property of the debtor’s estate. Property is not limited to tangible property. Thus, a trustee can avoid a post-petition transfer of intangible assets, including intellectual property.

This article explores a trustee’s ability to avoid a post-petition transfer of intellectual property. Part I analyzes the legal standard for avoidance of unauthorized post-petition transfers under section 549. Part II examines section 549 in relation to intellectual property. Part III discusses the procedure for remedies a trustee can seek …

Legislative Report: Federal Regulations Implementing The Trademark Modernization Act Of 2020, Mark Kallevig

Cybaris®

No abstract provided.

How Santa Clara Law's "Tech Edge Jd" Program Improves The School's Admissions Yield, Diversity, & Employment Outcomes, Laura Lee Norris, Eric Goldman

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

A Named Inventor Of A Patent Should Be Expanded To Include Artificial Intelligence, Min Li

Touro Law Review

Why should patent inventors be limited to only natural persons under the current United States patent law? In fact, the present US patent law should be expanded to allow an Artificial Intelligence (“AI”) to be a named inventor of a patent. This would incentivize patent owners to use AI to produce more inventions that would benefit the public. There is no negative impact to expand the current US patent law. Many scholars, law professors, and practitioners believe that the patent law (or intellectual property law in general) is outdated due to the massive growth of modern technology. This Note argues …

Copyrighting Brain Computer Interface: Where Neuroengineering Meets Intellectual Property Law, Favio Ramirez Caminatti

Cybaris®

No abstract provided.

Much Dispute About Nothing? A Critical Examination Of The Backlash Against Investment Treaty Arbitration In International Intellectual Property Disputes, Andy Taylor

Cybaris®

No abstract provided.

Legislative Report: Patents For Humanity Act Of 2022, Stephen Kohn

Cybaris®

No abstract provided.

Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey

Marquette Intellectual Property & Innovation Law Review

None

Paws Off My Profile: Protecting The Persona In A Modern Digital Age, Samantha P. Mccaleb

Marquette Intellectual Property & Innovation Law Review

None.

Systematizing Scents: The Case For Chemically Standardized Nontraditional Scent Trademarks, Jared Novitzke

Marquette Intellectual Property & Innovation Law Review

None.

A Qualitative Method For Investigating Design, Jessica Silbey, Mark P. Mckenna

Faculty Scholarship

This chapter describes our qualitative study of designers and design practice. It situates the study in the broader field of empirical studies of intellectual property, and it describes in detail the methodology and benefits of a qualitative interview study of designers and design practice to shed light on some of the persistent puzzles in design law. The chapter focuses on four lines of inquiry: defining “design” and “design practice” from within the profession; exploring the various inputs to design practice and the process of “problem solving” designers pursue; understanding what “integrated” form and function mean to designers; and explaining the …

Copyright Co-Ownership In Uncertain Times: How Security Interests Can Save The Day, Evie Whiting, Ashleigh Stanley

Vanderbilt Journal of Entertainment & Technology Law

Films and television series are increasingly being created undera co-production model, making copyright co-ownership a common occurrence in the world of Hollywood content creation. So long as each co-owner’s rights are pre-negotiated and specifically delineated in their contracts, the co-owners can rest assured that their rights to the project and any potential derivative works are safe. Or can they?

In the modern entertainment landscape, where tentpole programming and related spinoffs and derivatives are the gold standard of content creation, the proper protection of co-owned copyrights is more important than ever. But tenuous financial outlooks pose a looming, existential threat to …

Hard Truths About Soft Ip, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

People routinely refer to copyright and trademark as “soft IP” to distinguish these practices from another area of intellectual property: patent. But the term reflects implicit biases against copyright and trademark doctrine and practioners. “Soft IP” implies that patent law alone is hard, even though patents are no more physically, metaphorically or intellectually hard than copyrights and trademarks. Despite stereotypes to the contrary, patents are not necessarily more practically hard: while the U.S. Patent and Trademark Office requires technical training for patent prosecutors, which excludes many women and people of color, no such experience is necessary for most patent litigators …

Disrupting Data Cartels By Editing Wikipedia, Eun Hee Han, Amanda Levendowski, Jonah Perlin

Georgetown Law Faculty Publications and Other Works

Legal discourse in the digital public square is driven by memoranda, motions, briefs, contracts, legislation, testimony, and judicial opinions. And as lawyers are taught from their first day of law school, the strength of these genres of legal communication is built on authority. But finding that authority often depends on a duopoly of for-profit legal research resources: Westlaw and Lexis. Although contemporary legal practice relies on these databases, they are far from ethically neutral. Not only are these “data cartels” expensive-- creating significant access to justice challenges--they also are controlled by parent companies that profit by providing information to Immigration …

Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey

Faculty Scholarship

Today's intellectual property debates, in both law and the larger society, are a bellwether of changing justice needs in the twenty-first century. As the digital age democratizes technological opportunities, it brings intellectual property law into mainstream everyday culture. This generates debates about the relationship between the constitutional interest in "the progress of science and useful arts" and other fundamental values, such as equality, privacy, and distributive justice. These values, which were not explicitly part of intellectual property regimes in prior eras, are especially challenged in today's internet world.

The article (which was presented as the annual Nies Lecture in April …

Manufacturing Innovation, Xuan-Thao Nguyen

Articles

Using intellectual property assets as the proxy for innovation measures, this paper provides a comprehensive analysis of the legal and policy strategies that form the foundation for China's new role as the global manufacturer of innovation. Manufacturing innovation is evident through China's multi-prong approach regarding intellectual property production and maximization. Significantly, among many other policies that target innovation, China encourages the production of innovation by accepting patents and trademarks as collateral assets for financing. Entrepreneurs can quickly obtain loans against their portfolios of patents and trademarks. China also requires enterprises seeking to undergo an initial public offering (IPO) on the …

Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee

Faculty Scholarship

Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …

Keynote At The Cleveland State University College Of Law Ip+ Conference, Kathleen O'Malley

Cleveland State Law Review

Thank you for your kind introduction, Lee. Thank you too for your mentorship, support, and friendship over the years. I would not be where I am today but for having you in my life. And I want to thank both you and Professor Laser for inviting me to join you today—and for providing a soap box to champion the importance of a robust intellectual property system.

Comparative Intellectual Property Protection For Marijuana: United States Vs. The European Union, Jillian Gosser

Global Business Law Review

Protecting intellectual property relating to marijuana is a complicated endeavor. The federal ban on marijuana renders trademark protection difficult at best, and patent protection, while available, still rife with complications. In Europe, the laws pose similar challenges in the protection and enforcement of marijuana related intellectual property. This Note presents a comparative law analysis of the various ways marijuana related intellectual property may be protected in the United States and Europe. Different types of intellectual property protection explored include utility patents, design patents, trademarks, plant patents, Plant Variety Protection Act coverage, and Community Plant Variety Act coverage. This Note explores …