Law Commons^™

Federalist Society’S Intellectual Property Practice Group And Its Stanford Law School Present A Debate On Open Source And Intellectual Property Rights, Lawrence Lessig, F. Scott Kieff, G. Marcus Cole

University of Massachusetts Law Review

Transcript of the Federalist Society’s Intellectual Property Practice Group and its Stanford Law School Chapter debate on Open Source and Intellectual Property Rights with panelists Professor Lawrence Lessig from Stanford University and Professor F. Scott Kieff from Stanford University and moderated by Professor G. Marcus Cole from Stanford Law School. This debate took place on Wednesday, March 30, 2005 in Palo Alto, California.

State Sovereign Immunity And Intellectual Property: An Evaluation Of The Trademark Remedy Clarification Act’S Attempt To Subject States To Suit In Federal Courts For Trademark Infringements Under The Lanham Act, Jennifer L. Fessler

University of Massachusetts Law Review

There are two things that can be learned from this paper. First, the analytical framework developed by the Court in City of Boerne is a stringent test that has considerably narrowed Congress’s ability to abrogate state’s Eleventh Amendment immunity through legislation. Second, only half of the battle was won when Congress enacted the Trademark Remedy Clarification Act. Although it met the new requirements the Court placed on legislative efforts in Atascadero, it is not able to meet the requirements that were later set forth in Seminole Tribe. The Rehnquist Court’s holdings indicate the Court’s active pursuit of state’s …

Stay Tuned: Whether Cloud-Based Service Providers Can Have Their Copyrighted Cake And Eat It Too, Amanda Asaro

Fordham Law Review

Copyright owners have the exclusive right to perform their works publicly and the ability to license their work to others who want to share that right. Subsections 106(4) and (5) of the Copyright Act govern this exclusive public performance right, but neither subsection elaborates on what constitutes a performance made “to the public” versus one that remains private. This lack of clarity has made it difficult for courts to apply the Copyright Act consistently, especially in the face of changing technology.

Companies like Aereo, Inc. and AereoKiller, Inc. developed novel ways to transmit content over the internet to be viewed …

The Ascendancy Of European Community Law--The Implications Of The Court Of Justice Decision In Magill On The Balance Between National And Ec Intellectual Property Law, Tanya Doherty Reagan

Georgia Journal of International & Comparative Law

No abstract provided.

For Sale--One Level 5 Barbarian For 94,800 Won: The International Effects Of Virtual Property And The Legality Of Its Ownership, Alisa B. Steinberg

Georgia Journal of International & Comparative Law

No abstract provided.

Keep Your Friends Close: A Framework For Addressing Rights To Social Media Contacts, Courtney J. Mitchel

Vanderbilt Law Review

A group of entrepreneurial recent college graduates starts a tutoring and test prep company focused on helping promising high school students get an edge on their college applications. Since the cost of print advertising exceeds the group's budget, they each actively promote the business on their personal social media accounts, garnering their first clients. They also create company accounts on Facebook, Linkedln, and Twitter, which clients join for easy, direct communication and quick access to information. Though all the founders contribute occasional posts and encourage their personal social media contacts to join the company accounts, one eventually becomes, in practice …

Trademarked For Death? A Licensee's Trademark Rights After An Executory Contract Is Rejected In Bankruptcy, Philip L. Lu

Vanderbilt Law Review

In 1872, a young man named Claudio Alvarez Lefebre began manufacturing and selling high-quality rum in Cuba under the brand name "Ron Matusalem." In 1948, as the family-run business prospered, the company registered a trademark and corporate logo in the United States. Upon his death, Lefebre left the business-and the secret formulas for making his rum-to his wife and children. By the early 1960s, Lefebre's wife and children had immigrated to the United States, and they split the rum-making business into two separate corporations. These two distinct entities negotiated an executory contract in the form of a franchise agreement with …

Ka Bow! Seventh Circuit Knocks Down Trademark Claim, Sarah B. Virani

Seventh Circuit Review

Integral to the success of a business is its ability to protect its trademark. When another individual or business infringes upon a business's trademark, the infringed user can bring a claim under the Lanham Act, which codifies federal trademark law, in part to protect consumers from confusion as to the source of a product or service. An essential question is whether a trademark holder may, under the Lanham Act, bring a successful claim for trademark infringement against another for a fictional product.

The Seventh Circuit addressed this matter in Fortres Grand Corporation v. Warner Bros. Entertainment, in which the …

Aereo And Filmon: Technology’S Latest Copyright War And Why Aereo Should Survive, Krista Consiglio

Washington and Lee Law Review

No abstract provided.

Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 4, Issue 2, Spring 2014

Pace Intellectual Property, Sports & Entertainment Law Forum

This issue of Pace Intellectual Property, Sports & Entertainment Law Forum includes articles on the modern legal issues & developments affecting fashion, the Internet, music, film, international sports, constitutional law & the lives of celebrities.

Regulatory Monopoly And Differential Pricing In The Market For Patents , Neel U. Sukhatme

Washington and Lee Law Review

Patents are limited-term monopolies awarded to inventors to incentivize innovation. But there is another monopoly that has been largely overlooked at the heart of patent law: the monopoly of the U.S. Patent and Trademark Office (PTO) over the granting of patents. This Article addresses this topic by developing the notion of a regulatory monopoly, where a single governmental actor has the power to set prices in a regulatory area. The Article explains how regulatory monopolists like the PTO could enhance social welfare via differential pricing—by charging regulated entities differing fees based on their willingness and ability to pay. In particular, …

The National Security Implications And Potential Solutions For The Unintended Consequences Of The 1980 Bayh-­‐Dole Act On Brain-­‐Injured Veterans From The Wars In Iraq And Afghanistan, Colonel Noel Christian Pace

University of Miami National Security & Armed Conflict Law Review

Traumatic brain injury (TBI) is the “signature wound” seen in veterans from the wars in Iraq and Afghanistan, from which the U.S. now has over 20,000 young veterans living with TBI. However, some unintended consequences of the Bayh-­‐Dole Act of 1980, a law designed to tap the “secret weapon” of federally funded research & development (R&D) to help the U.S. return to competitiveness after the recession of the late 1970’s, are now preventing these heroes from getting the treatment and cures they need. This article reviews the history of American academia’s close cooperation with the U.S. government in solving military …

In Personam And Beyond The Grasp: In Search Of Jurisdiction And Accountability For Foreign Defendants, Andrew F. Popper

Catholic University Law Review

No abstract provided.

Copyright's Vicious Triangle: Returning Author Protections To Their Rational Roots, Robert Shepard

Loyola of Los Angeles Law Review

Copyright protections encourage the production of intellectual property by temporarily restricting free public access, a constitutional design that Justice Stephen Breyer has called a “two-edged sword.” Yet, the Copyright Clause really enshrines a triangular relationship among authors, consumers, and commodifiers, a third constituency that has always interposed itself between author-creators and consumer end-users. Though the Copyright Triangle is nothing new, a fundamental reordering of these constituencies is in progress, with digital commodifiers such as Google assuming a dominant role. Though they sometimes proclaim themselves champions of free public access to culture, these commodifiers have instead aggrandized themselves at the expense …

The End Of The Imitation Age?: The Effect Of Apple Inc. V. Samsung, Melissa Barcena

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Intellectual Property, The Free Movement Of Goods And Trade Restraint In The European Union, Jarrod Tudor

The Journal of Business, Entrepreneurship & the Law

The European Union (“EU”) is the most significant trade partner of the United States. Trading in goods protected by intellectual property rights remains a challenge for American business entities as they are forced to sift through a myriad of law consisting of the federal intellectual property law of the EU and the intellectual property law of the member states. The European Court of Justice (“ECJ” or “the Court”) has been faced with dozens of complex cases arising out of conflicts between the national law of the member states and the Articles of the Treaty on the Functioning of the European …

Modifying Rand Commitments To Better Price Patents In The Standards Setting Context, Kyle Rozema

The Journal of Business, Entrepreneurship & the Law

This Article addresses a single problem: how can we allow engineers and scientists from different institutions to collaborate to set the best technical standards possible, not considering intellectual property (“IP”) rights, and then establish the royalty rates for each patent owner after the standard is set? The current system attempting to solve this problem requires patent owner participants to sign a Reasonable and Non-Discriminatory (“RAND”) commitment. These RAND commitments require the participants to agree an ante, i.e., before the standard is actually set, to license whatever patent rights they may ultimately have in the standard on terms that are reasonable …

Navigating The Minefield Of Trade Secrets Protection In China, Daniel C.K. Chow

Vanderbilt Journal of Transnational Law

Many Multinational Companies (MNCs) now consider trade secrets to be the most important intellectual property right in China, ahead of patents, trademarks, and copyrights. While trade secrets have become more valuable than ever as a business asset in China, many MNCs also find that the protection of trade secrets in China is full of pitfalls and traps. Unlike in the case of patents, trademarks, and copyrights, China has no unified law governing trade secrets, but has disjointed provisions scattered throughout various laws. The pitfalls are also created by a high evidentiary burden in proving a theft of a trade secret …

The Sound Recording Performance Rights At A Crossroads: Will Market Rates Prevail?, Jeffrey A. Eisenach

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

Starting in the 1990s, Federal policy has moved in the direction of a market-oriented approach towards sound recording rights, beginning with Congress’ decision to create a sound recording performance copyright in 1995. In 1998, Congress provided that most statutory royalty rates, including the rates paid by webcasters like Pandora Radio, would be set using a market-based “willing buyer, willing seller” (“WBWS”) standard. Since then, the WBWS standard has been applied in several rate setting proceedings, but complaints from webcasters that the rates were “too high” have led to Congressional intervention and, ultimately, to adoption of rates below market levels. Now, …

Is Litigation Counsel Who Also Engages In Competitive Decision-Making Wrong For The Part?, David Hricik

St. Mary's Journal on Legal Malpractice & Ethics

In-house counsel wear different hats, and are often involved in business decisions regarding products, marketing, and other strategic issues. It was in this context that courts began to adopt protective orders that precluded in-house counsel who provided their clients advice with “competitive decision-making” from having access to information from a competitor disclosed in discovery. Prosecution bars present numerous issues for courts and counsel. It may be that because of prosecution counsel’s knowledge of the technology that her service as trial counsel would lead to cost savings and other benefits to her client. However, due to the myriad problems that arise …

Appropriation Without Representation? The Limited Role Of Indigenous Groups In Wipo's Intergovernmental Committee On Intellectual Property And Genetic Resources, Traditional Knowledge, And Folklore, Veronica Gordon

Vanderbilt Journal of Entertainment & Technology Law

The World Intellectual Property Organization's (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) is currently engaged in text-based negotiations to develop an international legal instrument, or set of instruments, that will effectively protect traditional knowledge, traditional cultural expressions, and genetic resources. Yet, the people who will arguably be most affected by the ultimate instrument(s)--indigenous peoples and local communities--are not able to fully participate in these negotiations. Instead, WIPO deems them "Observers." They cannot formally present proposals, amendments, or motions, and cannot vote at IGC sessions. Thus, their limited influence implicates questions of equity, sovereignty, …

How To Explain The "Implicit Exceptions" To Patent-Eligible Subject Matter, Wesley D. Markham

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court has as of late taken renewed interest in what inventions or discoveries are deserving of entry into the patent system. Section 101 of Title 35 opens the door to "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." Certain things--now referenced by the Court as "laws of nature, natural phenomena, and abstract ideas"--necessarily fall outside the statute's scope. The question is, why? Not why as a matter of policy, but why as a matter of law. The Court has not yet picked (or at …

Once More Unto The Breach, Dear Friends: Broadway Dramatists, Hollywood Producers, And The Challenge Of Conflicting Copyright Norms, Carol M. Kaplan

Vanderbilt Journal of Entertainment & Technology Law

In recent decades, studios that own film and television properties have developed business models that exploit the copyrights in those materials in every known market and in all currently conceivable forms of entertainment and merchandising. For the most part, uniform laws and parallel industry cultures permit smooth integration across formats. But theater is different. The work-made-for-hire provisions that allow corporations to function as the authors of the works they contract to create do not easily align with the culture and standard contract provisions of live theater. Conflicts arise when material that begins as a Hollywood property tries to make the …