Law Commons^™

Network Rules, Susan P. Crawford

Law and Contemporary Problems

Crawford compares the debate between the telcos and the online companies over broadband access regimes often called the "network neutrality" debate to the ongoing tussle between intellectual property maximalists and "free culture" advocates which are strikingly parallel sets of arguments. The maximalists claim that creativity comes from lone genuises (the romantic author) who must be given legal incentives to works but intellectual property scholars have carefully examined the incentives of their arguments and have pointed out that granting overly strong property rights to copyright holders might not be socially appropriate. Moreover, the network providers claim that they (the romantic builders) …

The Invention Of Traditional Knowledge, Madhavi Sunder

Law and Contemporary Problems

Sunder argues that the failure of intellectual property to recognize the contributions of traditional and natural sources cannot be rectified by mere payment and she posits a non-monetizable, non-utilitarian benefit in terms of worth or dignity in having one's contribution as the subject labelled of an intellectual property right. Foregrounding the important role of "raw materials" in the process of innovation, cultural environmentalism helped provide a theoretical and political basis for recognition and recompense for the purveyors of those raw materials-often indigenous peoples who have cultivated the earth's biodiversity and who hold "traditional knowledge" about that biodiversity. Moreover, focus on …

Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet

Law and Contemporary Problems

Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but know less about the choices people make about copyright on a daily basis, especially when they are not working. Here, Tushnet examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Among other things, she discusses some differences between fair use and fan practices, focused around attribution as an alternative …

Cultural Environmentalism And The Constructed Commons, Molly Shaffer Van Houweling

Law and Contemporary Problems

Van Houweling explores both the benefits and failings of conservation easements on land on the one hand and the licensing commons on the other. Conservation easement The tools of cultural environmentalism in the lights of objections to conservation easements and more general concerns with complicated and fragmented property rights are also considered. Among other things, she provides clear theoretical differences between the public domain, where freedom is based on the absence of property rights, and the licensing commons, where freedom is based on the absence on the preemptive exercise of the property rights by the rights holder in order to …

The Ends Of Intellectual Property: Health As A Case Study, Arti K. Rai

Law and Contemporary Problems

Rai points out the great limitations of some conventional measures of efficiency and cites quality-adjusted life years (QALY), an alternative measure that is actually used in making health-care decisions, as an example. the ability to pay. Quantifying benefits in terms of QALY does not give us a neutral measure of worth, of course but it does expose the value judgments being made and give us a yardstick other than intuition or anecdote for measuring effects. Thus, she argues that rather than giving up on economic analysis, other ways to broaden its scope should be sought.

Two Thoughts About Traditional Knowledge, William Fisher

Law and Contemporary Problems

Fisher argues the traditional knowledge of environmentalism and the public domain ideas by presenting two combined related themes involving the British colonist of Native Americans. The idea of devaluing the Indian's nonacquisitive, natural, respectful way of living lightly upon the land while conserving it, and fostering imperialism and unjust conquest. Among other things, he formulates three parallel provisions to the TRIPS Agreement to increase the leverage of the countries in determining the terms on which flora, fauna, medicinal knowledge, folklore, and traditional art forms are exploited by others.

The Anarchist In The Coffee House: A Brief Consideration Of Local Culture, The Free Culture Movement, And Prospects For A Global Public Sphere, Siva Vaidhyanathan

Law and Contemporary Problems

Jürgen Habermas' influential historical work, The Structural Transformation of the Public Sphere, describes a moment in the social and political history of Europe in which a rising bourgeoisie was able to gather in salons and cafes to discuss matters of public concern. The public sphere represented a set of sites and conventions in the eighteenth century in which (almost exclusively male) members of the bourgeoisie could forge a third space to mediate between domestic concerns and matters of state. Here, Vaidhyanathan examines one particular Public Sphere experiment--the rise of a global Free Culture Movement that aims to limit the spread …

A Copyright Conundrum: Protecting Email Privacy, Ned Snow

Faculty Publications

The practice of email forwarding deprives email senders of privacy. Expression meant for only a specific recipient often finds its way into myriad inboxes or onto a public website, exposed for all to see. Simply by clicking the "forward" button, email recipients routinely strip email senders of expressive privacy. The common law condemns such conduct. Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune …

Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

In eBay v. MercExchange, the Supreme Court correctly rejected a one-size-fits-all approach to patent injunctions. However, the Court's opinion does not fully recognize that the problem of uniformity in patent law is more general and that this problem cannot be solved through case-by-case analysis. This Essay provides a field guide for implementing eBay using functional analysis and insights from a uniformity-cost framework developed more fully in prior work. While there can be no general rule governing equitable relief in patent cases, the traditional four factor analysis for injunctive relief should lead the cases to cluster around certain patterns that often …

Acquisition Licenses In Tennessee: An Annotated Model Tennessee Acquisition License Agreement, Joan Macleod Heminway

Scholarly Works

The coauthors have constructed a model license agreement for use in connection with acquisitions, annotated with footnotes on substantive law and legal drafting issues. This model is intended to serve as a research piece, teaching tool, and practitioner resource. This agreement is part of a series of acquisition agreements and related ancillary contracts and instruments published by Transactions: Tennessee Journal of Business Law beginning in 2003.

Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll

Michael W. Carroll

In eBay v. MercExchange, the Supreme Court correctly rejected a one-size-fits-all approach to patent injunctions. However, the Court's opinion does not fully recognize that the problem of uniformity in patent law is more general and that this problem cannot be solved through case-by-case analysis. This Essay provides a field guide for implementing eBay using functional analysis and insights from a uniformity-cost framework developed more fully in prior work. While there can be no general rule governing equitable relief in patent cases, the traditional four factor analysis for injunctive relief should lead the cases to cluster around certain patterns that often …

Re-Evaluating Declaratory Judgment Jurisdiction In Intellectual Property Disputes, Lorelei Ritchie De Larena

Lorelei Ritchie de Larena

The Declaratory Judgment Act of 1934 was quickly tagged by the U.S. Supreme Court as a simple procedural measure. Whether simple or procedural, the addition of the declaratory judgment option has dramatically increased the rights of would-be defendants. This is of special interest in patent law, where without the ability to initiate legal action, an alleged infringer would typically have no recourse but to either drop a lucrative business and lose a massive investment, or to languish in legal limbo while potentially accruing liability for treble damages. The option of a mirror-image lawsuit removes the patentee’s ability to unilaterally decide …

The Government Giveth, And The Government Taketh Away: Patents, Takings, And 28 U.S.C. § 1498, Justin Torres

ExpressO

The argument over whether patents are protected by the Fifth Amendment’s Takings Clause has largely been confined to normative grounds. To the extent that these arguments reference the 1910 Patent Act, the statute that enables patentees to recover “reasonable and entire” compensation for infringement by the government (later codified as 28 U.S.C. § 1498), they conclude that the provision adds little to the argument. And in Zoltek Corp. v. United States, the Court of Appeals for the Federal Circuit determined that the very existence of § 1498 indicates that there is no Fifth Amendment claim for patent infringement, since an …

Why Custom Cannot Save Copyright's Fair Use Defense, Jennifer E. Rothman

All Faculty Scholarship

This article is a short reply to Richard Epstein's comments on my article, The Questionable Use of Custom in Intellectual Property, 93 Virginia Law Review 1899 (2007). In the underlying article, I critique the general preference of courts to incorporate customary practices into intellectual property law. In this reply, I disagree with Professor Epstein's claim that custom should be dispositive in some instances to determine the scope of copyright's fair use defense. Although I observe that for some individual parties various customary practices may be cost-effective, their incorporation into the law expands the scope of copyright in ways that unreasonably …

When Second Comes First: Correcting Patent’S Poor Secondary Incentives Through An Optional Patent Purchase System, Jordan Barry

ExpressO

As research has advanced, technologies have become more closely knit, and the relationships between them—both complementary and competitive—have become increasingly important. Unfortunately, the patent system’s use of monopoly power to reward innovators creates inefficient results by overly encouraging the development of substitute technologies and discouraging the development of complementary technologies. This paper explains how an optional patent purchase system could help ameliorate such problems and discusses the implications of such a system.

Internationalizing Copyright: How Claims Of International, Extraterritorial Copyright Infringement May Be Brought In U.S. Courts, Elliot Cook

ExpressO

This Comment assesses the use of the Alien Tort Statute (“ATS”) as a jurisdictional basis for claims of international copyright infringement occurring outside of the United States. Under the ATS, aliens may sue in United States district courts for torts that amount to violations of treaties or the law of nations.

Given that copyright infringement is a tort, an alien may only be able to establish ATS jurisdiction in a suit of extraterritorial infringement if the infringement violated a treaty or the law of nations. This comment argues that extraterritorial copyright infringement does indeed amount to a violation of the …

The Irs’S Cost-Sharing Proposals In The Worldwide Tax System: Why Congress Should Avoid Anti-Competitive Transfer Pricing Regulations And Embrace A Territorial Tax, James D. Mandolfo

Fordham Journal of Corporate & Financial Law

No abstract provided.

Knowledge Process Outsourcing To India: Important Considerations For U.S. Companies, Sonia Baldia

Sonia Baldia

No abstract provided.

Intellectual Property In Global Sourcing: The Art Of The Transfer, Sonia Baldia

Sonia Baldia

No abstract provided.

Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale

Faculty Scholarship

Environmental laws are designed to reduce negative externalities (such as pollution) that harm the natural environment. Copyright law should adjust the rights of content creators in order to compensate for the ways they reduce the usefulness of the information environment as a whole. Every new work created contributes to the store of expression, but also makes it more difficult to find whatever work one wants. Such search costs have been well-documented in information economics. Copyright law should take information overload externalities like search costs into account in its treatment of alleged copyright infringers whose work merely attempts to index, organize, …

Accidental Rights, James Gibson

Law Faculty Publications

Written for the Yale Law Journal's online Pocket Part, this is a much shorter and (I hope) more accessible iteration of my earlier paper, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007). It summarizes that paper's central point - i.e., that intellectual property entitlements are growing not just because of expansive court decisions and legislative enactments, but also because of seemingly sensible, risk-averse licensing decisions that inadvertently feed back into legal doctrine - and then explores how this phenomenon might apply to (and be manipulated by) enterprises such as Google Book Search.

Harmonization Through Condemnation: Is New London The Key To World Patent Harmony?, Max S. Oppenheimer

Vanderbilt Journal of Transnational Law

Since 1790, when two U.S. patent applicants have claimed the same invention, the patent has been awarded to the first inventor. Today, the United States stands alone in the industrialized world, and many argue that the United States should, in the interest of world patent harmony, change its system so as to award a contested patent to the first applicant. Of the arguments advanced to justify the change, the only ones that withstand scrutiny are that "all the other countries are doing it" and the hope that some concessions in other aspects of intellectual property or trade might be obtained …

Transcript: Opening Remarks, Peter Jaszi

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Stifling Or Stimulating - The Role Of Gene Patents In Research And Genetic Testing, Lawrence M. Sung

Congressional Testimony

No abstract provided.

Pto Rulemaking In The Twenty-First Century: Defining The Line Between Strategic Planning And Abuse Of Authority, Brian E. Mack

Fordham Law Review

No abstract provided.

Lexis V. Westlaw For Research - Better, Different, Or Same And The Qwerty Effect?, Jon R. Cavicchi

Law Faculty Scholarship

There are synchronistic moments when in the process of writing. While contemplating this article, an email message made its way to my desk, past Pierce Law Center's spam firewall with the following subject line: "Pepsi v. Coke-Tell Us--Get $10." Do IP researchers choose Lexis or Westlaw justified by taste? Surely you jest, some voice said to me. Repressing this message, I proceeded to compare platform content, perform literature searches, and poll students and IP professors.

Yet another synchronistic moment came as the email from those taking the poll steamed into my email. Many IP professors indicated that they made the …

The Rule Of Intellectual Property Law In The Internet Economy, Joel R. Reidenberg

Faculty Scholarship

This article argues that the technological attacks on intellectual property are a movement against democratically chosen intellectual property rules. They form a basic challenge to the rule of law and to the control of the rules wired into the network. In making this argument, the Article first maintains that intellectual property rights have an important public function in democracy in that they mark political, economic, and social boundaries. Next, the Article shows that the public law, as enacted by governments, has reallocated intellectual property rights to adapt to the information economy. While many aspects of this new allocation of rights …

Panel 1: Ksr V. Teleflex: The Nonobviousness Requirement Of Patentability, John R. Thomas, John Richards, Herbert F. Schwartz, Steven J. Lee

Georgetown Law Faculty Publications and Other Works

KSR is a big case because it addresses the only significant patentability requirement that exists under U.S. law. I count four fundamental patentability requirements: statutory subject matter, utility, novelty, and nonobviousness. It is plain that in the United States statutory subject matter is as broad as human experience itself. Utility, a very lenient requirement, is also easily met in most areas of technology. Novelty too is also easily satisfied. So what we are really left with is the fundamental gatekeeper to patentability. Should the Supreme Court raise that standard, it will effectively cede a great deal of proprietary subject matter …

Collateralizing Intellectual Property, Xuan-Thao Nguyen

Articles

This Article identifies and critiques the collateralization of intellectual property, revealing the complexity of intersecting secured transaction law, namely Article 9 of the Uniform Commercial Code, and doctrinal intellectual property laws such as patent law, copyright law, and trademark law. The inquiry challenges the silence surrounding the pervasive use of intellectual property as collateral in secured financing and suggests changes to the existing framework on secured financing law.

The Article proceeds as follows: Part II discusses the normative intellectual property rights for patents, copyrights, and trademarks and how such rights are utilized as corporate assets. Part III describes different forms …

Secrecy And Access In An Innovation Intensive Economy: Reordering Information Privileges In Environmental, Health, And Safety Law, Mary L. Lyndon

University of Colorado Law Review

This article examines the law concerned with access to information that is commercially valuable when it is kept secret but is also essential to environmental, health, and safety (EHS) risk evaluation. EHS law stimulates sustainable economic activity, including new technologies, and thus complements intellectual property law. Access to EHS information is essential to risk management, but current disclosure obligations are unclear, as the law is a patchwork of familiar but ill-fitting concepts and entitlements. The article discusses the current law that affects disclosure, taking into account recent changes in the technological and economic landscape. It also describes the contrasting uses …