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Brief Of Amicus Curiae Interdisciplinary Research Team On Programmer Creativity In Support Of Respondent, Ralph D. Clifford, Firas Khatib, Trina Kershaw, Kavitha Chandra, Jay Mccarthy
Brief Of Amicus Curiae Interdisciplinary Research Team On Programmer Creativity In Support Of Respondent, Ralph D. Clifford, Firas Khatib, Trina Kershaw, Kavitha Chandra, Jay Mccarthy
Faculty Publications
This brief answers the two primary issues that are associated with the first question before the Court. First, the programmers’ expression of the Java-based application programmer interfaces (“APIs”) are sufficiently creative to satisfy that requirement of copyright law. Second, the idea expression limitation codified in Section 102(b) of Copyright Act does not establish that the APIs are ideas. Both of these assertions are supported by the empirical research undertaken by the Research Team. This brief expresses no opinion on the resolution of the fair use question that is also before the Court.
Creativity Revisited, Ralph D. Clifford
Creativity Revisited, Ralph D. Clifford
Faculty Publications
The University of New Hampshire's Scholarship Redux Conference invited a reexamination of an earlier work of IP scholarship to address what has happened in the area since the time of its original publication. As my contribution to the Conference, I revisited my 1997 article that discussed the consequences of the increasing sophistication of artificial intelligence ("AI") on the production of new copyrightable or patentable works as well as the follow-up article I published in 2004 that focused expressly on copyright law. The primary call of the conference was to discuss the "legal predictions [that were] right -- or wrong!" In …
A Jukebox For Patents: Can Patent Licensing Of Incremental Inventions Be Controlled By Compulsory Licensing?, Ralph D. Clifford
A Jukebox For Patents: Can Patent Licensing Of Incremental Inventions Be Controlled By Compulsory Licensing?, Ralph D. Clifford
Faculty Publications
The patent system today no longer follows the classic understanding of how it is designed to work. In theory, to avoid infringement, a product developer searches the database of issued patents looking for those that might read onto the product being developed. If such patents are found, the developer can approach the patent holder for a license, can attempt to design around the claims, or can abandon the project. With many hundreds of thousands of patents being issued annually—a rate of issuance almost an order of magnitude larger than a hundred years ago—it is now a practical impossibility to search …
The New American Privacy, Richard J. Peltz-Steele
The New American Privacy, Richard J. Peltz-Steele
Faculty Publications
Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 …
Global Warming Trend? The Creeping Indulgence Of Fair Use In International Copyright Law, Richard J. Peltz-Steele
Global Warming Trend? The Creeping Indulgence Of Fair Use In International Copyright Law, Richard J. Peltz-Steele
Faculty Publications
In her article Toward an International Fair Use Doctrine in 2000, Professor Ruth Okediji hypothesized that the internationalization of copyright law would threaten the freedom of expression if some doctrine akin to U.S. “fair use” were not established as an international legal norm. Acknowledging the central concern of the Okediji article, this paper analyzes research and legal developments since that article to determine how the present state of the “fair use” concept in international copyright law differs from its state in 2000. The paper concludes that in the last eight years, though there has been no formal adoption of an …
Intellectual Property Rights In An Attorney’S Work Product, Ralph D. Clifford
Intellectual Property Rights In An Attorney’S Work Product, Ralph D. Clifford
Faculty Publications
This paper addresses the main intellectual property consequences of practicing law and whether attorneys can prevent others from using their work-product. The article does not assume that the reader is an expert in intellectual property law; instead, it is designed to answer the types of questions practitioners have about their rights.
Random Numbers, Chaos Theory, And Cogitation: A Search For The Minimal Creativity Standard In Copyright Law, Ralph D. Clifford
Random Numbers, Chaos Theory, And Cogitation: A Search For The Minimal Creativity Standard In Copyright Law, Ralph D. Clifford
Faculty Publications
This article explores the second type of expressive work, those where there is a question if the author’s contribution is qualitatively sufficient, to determine how much creativity and of what type is required to sustain a copyright. Initially, the historic standards of creativity use before Fiest was decided in 1991 will be presented. Then, after a brief discussion of Fiest, the scientific basis of creativity will be explored. Next, the confusion regarding creativity that exists in the lower courts will serve to expose the source of misapplication of the law – a disconnect between how courts perceive creativity and …
Simultaneous Copyright And Trade Secret Claims: Can The Copyright Misuse Defense Prevent Constitutional Doublethink?, Ralph D. Clifford
Simultaneous Copyright And Trade Secret Claims: Can The Copyright Misuse Defense Prevent Constitutional Doublethink?, Ralph D. Clifford
Faculty Publications
As the Constitution authorizes Congress to grant copyrights, it subjects the power to a public purpose requirement. Any monopoly Congress grants must be for the purpose of “promot[ing] the progress of science and useful arts.” But one result of Congress enacting the 1976 Act is a potential conflict between the Act and this public purpose requirement. An owner of intellectual property may believe that both copyright law – which mandates disclosure – and trade secret law – which mandates secrecy – can be used simultaneously. To believe that disclosure and secrecy can coexist is doublethink as both cannot be true. …