Law Commons^™

Risk Aversion And Rights Accretion In Intellectual Property Law, James Gibson

ExpressO

Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict, intellectual property users often seek licenses even when proceeding without one might be permissible. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine; the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory--where risk aversion again creates licensing markets, which cause …

Taking Copyright Seriously: Abridging Rights Is More Serious Than Inflating Rights, Alina Ng

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The proper balance between private rights and public interests in copyright has always been a heated debate. As communication and information technologies converge and develop to enable authors and users of creative works to create and use works without the physical limitations of the analog world, the debate has become more intense. This paper intends to contribute to the debate by bringing attention to basic ideas about rights and the importance of copyright as an institution to ensure that authors create new literary and artistic works for the benefit of the public. Rights under copyright are rights that define the …

Open Source, Free Software And Contractual Issues, Jose Javier González De Alaiza

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“Free software” is an increasingly used form to license computer programs, which on the one hand gives users the rights to use, modify and redistribute the program; and, on the other, forces any person redistributing an original or modified version of the program to license it with the same rights. Such a forced obligation is introduced through the so called “copyleft clause” and, basically, uses Copyright in a creative way to achieve freedom instead of control.

This paper discusses the “free software” foundations and contractual issues. The discussion is structured in two main parts and Conclusion. In Part II, the …

Why It Is Time To Eliminate Genomic Patents, Together With Natural Extracts Doctrine That Have Supported Such Patents, Allen K. Yu

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The constitutional purpose of intellectual property is to “promote the progress of science and useful arts.” Given the utilitarian basis of patents, it is critical that policies and laws must be continually adjusted to reflect the needs of new technologies. When the law tries to shield itself from rather than confront the realities of underlying technologies, patents end up actually subverting rather than promote technological progress. This paper explores why the natural extracts doctrine belongs to the class of doctrines that subvert progress. The doctrine, established over a century ago to enable the patenting of purified compounds for use as …

Are Patented Research Tools Still Valuable? Use, Intent, And A Rebuttable Presumption: A Proposed Modification For Analyzing The Exemption From Patent Infringement Under 35 Usc 271 (E) (1), Vihar R. Patel

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Briefly, the article proposes to have courts focus on the nature of an individual's use and apply the "UART" (Use As a Research Tool) factors to determine if a patented invention is being used as a research tool. If a patented invention is being used as a research tool, then the court is to presume that the activities are not covered by the FDA exemption. However, this presumption can be rebutted by a researcher's demonstration of the research tool owner using his patent to block efforts to develop a competing product. If the presumption is rebutted, then the court applies …

How The Other Half Lives (Revisited): Twenty Years Since Midler V. Ford - A Global Perspective On The Right Of Publicity, Alain Lapter

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For celebrities, name and image are, arguably, two of their most valuable assets. From headlining a movie, to starring in a commercial, to endorsing a product, a celebrity’s persona is potentially worth thousands to millions of dollars. However, this intangible commodity’s worth is often siphoned off by those who appropriate a celebrity’s name or image without authorization or remuneration, thus potentially decreasing the property’s value. In order to stifle this unjust enrichment, celebrities greatly desire the absolute right to control the commercial exploitation of their name and likeness.

In this article, I examine the current state of the right of …

Digital Attribution: Copyright And The Right To Credit, Francis G. Lastowka

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In a 1951 article in Science magazine, librarian Ralph Shaw argued that copyright law paid insufficient attention to the attribution interests of authors. Shaw observed that the straightforward pecuniary interests of publishers diverged from the more complex reputation-based interests of authors. He noted how authors and publishers might have differing views regarding the benefits of providing thousands of copies of a work for “free distribution.” Of course, since Shaw had pointed out that no sensible publisher would be interested in giving away such free works, the example he used was fanciful at the time. Today times have changed. The World …

Tough Love: The Dramatic Birth And Looming Demise Of Unclos Property Law (And What Is To Be Done About It), Peter S. Prows

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The 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) represents the culmination of thousands of years of international relations, conflict, and now nearly universal adherence to an enduring order for ocean space that is the most significant achievement for international law since the UN Charter. UNCLOS establishes international property law erga omnes that, by legal and political necessity, required a bargained consensus to be effective. This bargain, in essence, provided coastal States with extended but limited jurisdictions, while ensuring that the seabed and its mineral resources beyond were the “common heritage of mankind” that would peaceably and …

Performing Rights Societies And The Digital Environment, Philippe Gilliéron

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No abstract provided.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

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This brief comment suggests where the anti-eminent domain movement might be heading next.

The (Intellectual Property Law &) Economics Of Innocent Fraud: The Ip & Development Debate, Peter Matthew Beattie

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This note/essay examines the evidence on the effect of stronger IP laws introduced during the process of international IP law harmonization initiated by the TRIPS agreement, on the economic development of developing countries. It has been argued by proponents of harmonization that stronger IP laws will provide a needed boost to the economic development of developing (and even least-developed) countries. Critics of harmonization have argued that stronger IP laws will have the opposite effect. What has been largely overlooked in this debate is the strength of the evidentiary foundation upon which the arguments of both sides depend. Many of the …

A Hard Pill To Swallow- Does Schering V. Geneva Endanger Research And Development Within The Pharmaceutical Industry?, Alfredo De La Rosa

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Recently the Federal Circuit has adopted a sweeping new rule of inherent anticipation that essentially bars the patenting of metabolites and other in vivo biological degradations of chemical compounds. The new rule, adopted in SCHERING v. GENEVA, could substantially affect both the willingness and ability of pharmaceutical companies to develop new drugs if they cannot be assured that patent protection will be available, regardless of whether the patented compound existed undiscovered in a prior art reference. This paper explores the evolution of the doctrine of inherent anticipation, the manner in which Federal Circuit has chosen to address the issue in …

Protecting Menard’S Quixote: A Return To The Strict Originality Standard In Copyright Law, Daniel R. Connolly

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Copyright protection extends to “original” works. The adjective “original” here means a work that originated with its purported author, and is not meant to impute any novelty requirement to copyright law. However, case law and literature offer up several odd examples where two individuals have independently created identical works of art. The theory underlying copyright law requires that, because each work originated independently from separate authors, each work be independently copyrightable. Applying this strict, objective standard of originality to the transformative arts, we begin to see new possibilities for grounding copyrights in parodies and satires. Under current law, parodies escape …

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

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Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.

The Problem Of Freedom Override By Digital Rights Management Technologies: The Market Mechanisms And Possible Legal Options, Yuko Noguchi

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One of the major problems of copyright regulations in the digital and network era is that the Digital Rights Management (DRM) technologies are overriding the freedom incorporated within the copyright regulations in the analog world. The override problem partly comes from the strict implementation of the DRM systems by the market, and partly from the anti-circumvention regulations that almost blindly protect such implementation. This research reviews the scope of anti-circumvention regulations by introducing Japanese regulations, which are rather modest, and by comparing with the U.S. regulations. It also extensively analyzes the market mechanisms that cause rather strict implementation of DRM …

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

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It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as …

Does Information Beget Information?, Dennis S. Karjala

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Professor R. Polk Wagner has recently propounded a theory in the Columbia Law Review, purportedly based on a mathematical model, showing that open information grows exponentially with time and that, to the extent that creator control and incentives are correlated, greater control in the creator (author or inventor) results in a larger supply of open information in the long run than less control. While Professor Wagner’s assumptions are open to serious question, this article demonstrates that Professor Wagner’s model does not, even on the basis of his stated assumptions, lead to the result he claims for it. Rather, his results …

A Trade Dress Approach To The Protection Of Radio Brands, Christopher S. Reed

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Over the past ten to fifteen years the radio industry has undergone dramatic changes in terms of both programming and the economic model that underlies the industry’s very existence. Despite the widespread industry consolidation that took place after the passage of the Telecommunications Act of 1996, advances in technological innovation have lead to a diversity of new media options that have changed the way that people consume radio programming and the way advertisers reach their target audiences. Broadcasters have responded by creating niche-oriented formats designed to attract more narrowly defined segments of the listening population. As the programming becomes more …

I Know You Are, But What Am I? A Temporal Approach To Legal Classification, Wendy A. Adams

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No real epistemological disagreement exists that legal knowledge can be represented and understood in categorical form. At issue is the extent to which categorical analysis captures the full complexity of legal reasoning. Can legal reasoning be represented as a taxonomy of mutually-exclusive classes, a taxonomy considered necessary if legal certainty and the rule of law are to prevail, or does the complexity of the process defy attempts at exhaustive classification?

The author agrees with those who argue that multiple legal concepts must often be applied simultaneously to resolve legal problems. The author also acknowledges that simultaneous application of multiple concepts …

Vanquishing Copyright Pirates And Patent Trolls: The Divergent Evolution Of Copyright And Patent Laws, Robert E. Thomas

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In the last decade copyright law has followed an almost linear path of increasing legal protections for copyright holders’ battle against digital piracy. By contrast, proposed changes in patent law are decidedly anti-patent holder due to efforts to battle patent trolls – companies that acquire and use patent portfolios to extract payoffs from technology companies. Patent law reform faces a far more contentious path and will likely lose several of its most significant provisions. This paper analyzes efforts to change the laws of copyright and patent using James Q. Wilson’s theory of regulation. With little concerted opposition, copyright law has …

How Much Spam Can Can-Spam Can? – Evaluating The Effectiveness Of The Can-Spam Act In The Wake Of White Buffalo Ventures V. University Of Texas, Fay Katayama

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No abstract provided.

The Supreme Court, Stare Decisis, And The Role Of Judicial Deference In Patent Claim Construction Appeals, David Krinsky

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The U.S. Court of Appeals for the Federal Circuit reviews de novo the rulings of district judges about patent claim construction. This state of affairs—surprising to many lawyers who are unfamiliar with patent law—is controversial because claim construction is one of the most important and vexing aspects of patent litigation, necessary to the vast majority of patent cases, and because it is probably responsible, at least in part, for the high reversal rate in patent cases. Commentary by both scholars and judges about the standard of review in patent cases has centered on whether the Federal Circuit should change it …

The (Practical) Meaning Of Property, Vincent F. Chiappetta

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I argue that a functional approach to property - defining it as society’s decisions allocating varying kinds and degrees of legal control over resources rather than in terms of fixed sets of attributes or predefined goals - significantly clarifies public policy debate and related decision-making. That approach demonstrates we should reject characterizations of property as a yes-no proposition to which we react as well as the assumption that those who disagree with us are fools or worse. Those characterizations distract us from the central issue in property - our persistent normative disagreements regarding what constitutes its just application. Discussing property …

Patent Auctions, Michael Abramowicz

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In advancing his prospect theory of patents, Edmund Kitch dismissed the possibility of distributing rights to particular inventions through an auction, arguing that the patent system avoids the need for governmental officials to define the boundaries of inventions that have not yet been created. Auctions for patent rights to entire inventive fields, however, might accentuate the benefits of a prospect approach, by allowing for earlier and broader patents. Auction designs that award the patent to the bidder that commits the most money to research and development or that agrees to charge the lowest price, meanwhile, can reduce the costs of …

The Role Of Patents In Fostering Open Innovation, John Dubiansky

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The patent system is at an inherent tension with contemporary practices of innovation. American patent doctrine reveres the lone inventor who, through the marshalling of extraordinary insight and experimental toil, conceives a novel invention. As a reward, the inventor is given the right to profit from his contribution through personal commercial exploitation. While this perspective may have reflected the practice of the mechanical arts at the time of the nation’s founding, it no longer reflects contemporary industrial research and development, where innovation is an increasingly networked process.

This disconnect is evidenced by the fact that contemporary patent doctrine has failed …

As Our Heritage Crumbles Into Dust: The Threat Of State Law Protection For Pre-1972 Sound Recordings, Henry L. Mann

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This article examines the perplexing question of why U.S. copyright law allows states to grant virtually unlimited protection to sound recordings created prior to 1972. Although the Constitution grants the federal government commanding authority over the United States’ copyright regime, it appears that states are still free to do as they please in at least one important field. In the 2005 decision of Capitol Records, Inc. v. Naxos of America, Inc., the New York Court of Appeals breathed new life into the doctrine of common law copyright by holding that the rights-holder to a sound recording created any time before …

The Danger Of Underdeveloped Patent Prospects, Michael Abramowicz

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Commentators have long recognized that much of the work of commercializing an invention occurs after a patent issues. They have not recognized, however, that by the time market conditions make commercialization potentially attractive, the remaining patent term might be sufficiently short that a patentee will not develop an invention or will not spend as much on development as if more patent term remained. The concern about patent underdevelopment provides a counterweight to patent prospect theory, which urges that patents be issued relatively early. By insisting on a substantial degree of achievement before patenting, the patent system reduces the risk of …

Open Access In A Closed Universe: Lexis, Westlaw And The Law School, Olufunmilayo B. Arewa

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This paper considers issues of open access from the context of the broader legal information industry as a whole. The structure and contours of the legal information industry have shaped the availability of online open access publishing of legal scholarship. The competitive duopoly of Lexis and Westlaw is a particularly important factor in considerations of open access. Also significant is the relationship between Lexis and Westlaw and law schools, which form an important market segment for both Lexis and Westlaw. This paper begins by considering the important role information plays in the law. It then notes the increasing industry concentration …

Copyright On Catfish Row: Musical Borrowing, Porgy & Bess And Unfair Use, Olufunmilayo B. Arewa

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Treatment of musical borrowing under current copyright standards is far too often inequitable. This is evident in the works of George Gershwin, who for a number of reasons was able to borrow freely from existing traditions, works and artists, copyright the works he produced that reflected such borrowings and then restrict future borrowings and reinterpretations of his works. Looking at the operation and uses of copyright in the specific instance of George Gershwin’s musical practice reflects uses of copyright in the musical arena and demonstrates some ways in which current copyright rules may not adequately contemplate actual practices of music …

Piracy, Biopiracy And Borrowing: Culture, Cultural Heritage And The Globalization Of Intellectual Property, Olufunmilayo B. Arewa

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Discussions of both “piracy” and “biopiracy” often start from questionable assumptions about the nature of borrowing. In addition, legal treatment of local or traditional knowledge is often based on inadequate conceptions of the nature of culture and borrowing among cultures. Uses of local or traditional knowledge are embedded within an at times contentious discourse between North and South and have led to accusations of misappropriation, exploitation and “biopiracy.” This discourse reflects historical hierarchies of culture and power that continue to exert a strong influence on discourse, policy and the shape of legal doctrine. Many countries in the South lack the …