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Dealing With Old Father William, Or Moving From Constitutional Text To Constitutional Doctrine: Progress Clause Review Of The Copyright Term Extension Act, Malla Pollack
Malla Pollack
The author suggests a textual approach to the choice of review standards for statutes enacted purusant to the so-called Intellectual Property Clause, which is more properly named the Progress Clause. Turning to text of the Constitution s relatively unproblematic because the Progress Clause contains unusually detailed constitutional text. Furthermore, what little the Court has stated about the fundamental goals of the Clause matches the author's reading of its text. Any approach based on the drafting or ratification discussions stumbles on the thinness of the record, as well as the record's possible unreliability. The text supports a standard of review higher …
What Is Congress Supposed To Promote? Defining ‘Progress” In Article I, Section 8, Clause 8 Of The U.S. Constitution, Or Introducing The Progress Clause, Malla Pollack
Malla Pollack
Empirical reserach into ratification-era uses of the word "progress" in the United States demonstrates that this word, as used in Article One, Section Eight, Clause Eight, means "spread," i.e. diffusion, distribution. To the extent that Congress chooses not to act under this clause, the default position is that each person in the United States has a property right not to be excluded from publicly accessible knowledge and technology. Congress has only a very limited power to create private quasi-property, i.e., rights to exclude the rest of the commoners. Congress may only create temporary individual rights for "authors" or "inventors" to …
The Multiple Unconstitutionality Of Business Method Patents: Common Sense, Congressional Choice, And Constitutional History, Malla Pollack
The Multiple Unconstitutionality Of Business Method Patents: Common Sense, Congressional Choice, And Constitutional History, Malla Pollack
Malla Pollack
Business method patents are of sufficiently doubtful constitutionality that the Supreme Court should either render them void or, at the least, require a clear Congressional fact finding that they are likely to promote the "Progress of . . . [the] Useful Arts." Four separate arguments support this conclusion. First, common sense shows that patents on business methods do not promote progress. Second, Congress has not considered whether business method patents are likely to promote progress. Third, "useful arts," as that phrase is used in the Constitution, does not include mere commerce. Lastly, the historical background of the Intellectual Property Clause …
Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law, Daniel J. Gervais
Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law, Daniel J. Gervais
Daniel J Gervais
he 1991 U.S. Supreme Court decision in Feist Publications v. Rural Telephone Service Company, Inc. delivered was hailed both as a landmark decision and a legal bomb. Was Feist so original as to deserve all the attention? After all, it did not establish a new originality paradigm as such but only ended a long division among federal circuits concerning the protection under copyright of factual compilations. A number of circuits had adopted a test similar to the one articulated in Feist (i.e., based on creative selection), while others required only evidence of labor, a test known as sweat of the …
Disruptive Technology And Common Law Lawmaking: A Brief Analysis Of A&M Records, Inc. V. Napster, Inc., Michael W. Carroll
Disruptive Technology And Common Law Lawmaking: A Brief Analysis Of A&M Records, Inc. V. Napster, Inc., Michael W. Carroll
Michael W. Carroll
This symposium Article analyzes the Ninth Circuit's decision in A&M Records, Inc. v. Napster, Inc. After setting the stage with a comparison to the rise of cable television, and a description of the technologies underpinning Napster's service, the Article analyzes the doctrinal developments in the Ninth Circuit's opinion. The principal analytical points are that: (1) the court's definitions of "sampling" and "space-shifting" were overbroad, leading to oversimple fair use analysis; (2) the court's treatment of vicarious liablility for copyright infringement is doctrinally incoherent because it suggests that liability depends on whether a third party has "turn[ed] a blind eye" toward …
The Architecture Of The International Intellectual Property System, Graeme Dinwoodie
The Architecture Of The International Intellectual Property System, Graeme Dinwoodie
Graeme B. Dinwoodie
No abstract provided.
Trademark And Copyright: Complements Or Competitors?, Graeme Dinwoodie
Trademark And Copyright: Complements Or Competitors?, Graeme Dinwoodie
Graeme B. Dinwoodie
No abstract provided.
The Rational Limits Of Trademark Law (Plus 2005 Postscript), Graeme B. Dinwoodie
The Rational Limits Of Trademark Law (Plus 2005 Postscript), Graeme B. Dinwoodie
Graeme B. Dinwoodie
No abstract provided.
Indelicate Imbalancing In Copyright And Patent Law, Tom W. Bell
Indelicate Imbalancing In Copyright And Patent Law, Tom W. Bell
Tom W. Bell
Courts and commentators routinely claim that copyrights and patents aim to strike a delicate balance between public and private interests. No such balance exists, however. Intractable knowledge problems preclude lawmakers from even measuring the many, fluctuating, and unquantifiable interests affected by copyrights and patents, must less setting those interests in equipoise. Due to public choice problems, moreover, we can expect no better from lawmakers than indelicate imbalances in favor of certain lobbies. Copyrights and patents serve worthy utilitarian ends. They will fail to reach them, however, if we count on centralized political authorities to delicately balance public and private interests. …
Samtyckets Betydelse Vid Internationell Varumärkeskonsumtion - Eg-Domstolens Avgörande I "Davidoff-Fallet", Hans Henrik Lidgard
Samtyckets Betydelse Vid Internationell Varumärkeskonsumtion - Eg-Domstolens Avgörande I "Davidoff-Fallet", Hans Henrik Lidgard
Hans Henrik Lidgard
No abstract provided.