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2019

Intellectual Property Law

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Full-Text Articles in Law

The "License As Tax" Fallacy, Jonathan M. Barnett Dec 2019

The "License As Tax" Fallacy, Jonathan M. Barnett

University of Southern California Legal Studies Working Paper Series

Intellectual property licenses are commonly portrayed as a “tax” that limits access to technology assets, thereby stunting innovation by intermediate users and inflating prices for end-users. This presumptively skeptical view motivated postwar antitrust’s proliferation of per se rules against a wide array of licensing practices and, more recently, has driven recent Supreme Court decisions on IP licensing and enforcement actions by competition regulators in the U.S. and other commercially significant jurisdictions that would effectively rewrite licensing arrangements in wireless communication markets. Renewed skepticism toward IP licensing, and associated judicial and regulatory interventions, overlook the fact that IP licenses ...


Brief Thoughts About If Value/Then Right, Alfred C. Yen Dec 2019

Brief Thoughts About If Value/Then Right, Alfred C. Yen

Boston College Law School Faculty Papers

In this brief Essay, I will discuss something of interest to Professor Gordon and others, namely the “if value/then right” principle and its consequences for intellectual property, particularly copyright law. That principle, which the U.S. Copyright Act does not embrace, expresses the intuition that “wherever value is received, a legal duty to pay arises, regardless of whether imposing that legal duty serves public welfare.” The if value/then right principle concerns Professor Gordon because she believes that it expresses socially unproductive hostility to free riding. If a legal obligation to pay arises whenever someone receives a benefit from ...


Death Of Copyright, Paul Gugliuzza Dec 2019

Death Of Copyright, Paul Gugliuzza

Faculty Scholarship

The four primary bodies of intellectual property law—patent law, copyright law, trademark law, and the law of trade secrets—address the question of duration in different ways. Trade secrets have no fixed duration; the law protects against misappropriation as long as the relevant information remains secret. Trademark protection lasts as long as the mark retains its capacity to distinguish the goods or services it is attached to. In patent law—my primary area of scholarship—duration is fixed, finite, and generally straightforward to determine: you get twenty years from the date you file your patent application. Copyright duration, by ...


Pubfair: A Distributed Framework For Open Publishing Services. Version 2, November 27, 2019, Tony Ross-Hellauer, Benedikt Fecher, Kathleen Shearer, Eloy Rodrigues Nov 2019

Pubfair: A Distributed Framework For Open Publishing Services. Version 2, November 27, 2019, Tony Ross-Hellauer, Benedikt Fecher, Kathleen Shearer, Eloy Rodrigues

Copyright, Fair Use, Scholarly Communication, etc.

Over the last thirty years, digitally-networked technologies have disrupted traditional media, turning business models on their head and changing the conditions for the creation, packaging and distribution of content. Yet, scholarly communication still looks remarkably as it did in the pre-digital age. The primary unit of dissemination remains the research article (or book in some disciplines), and today’s articles still bear a remarkable resemblance to those that populated the pages of Oldenburg’s Philosophical Transactions 350 years ago. In an age of such disruptive innovation, it is striking how little digital technologies have impacted scholarly publishing; and this is ...


Brief Of Amici Curiae Law And Economics Scholars In Support Of Appellee And Affirmance, Mark A. Lemley, A. Douglas Melamed, Steven C. Salop Nov 2019

Brief Of Amici Curiae Law And Economics Scholars In Support Of Appellee And Affirmance, Mark A. Lemley, A. Douglas Melamed, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

In reliance on Qualcomm’s FRAND promises, key SSOs incorporated its technologies into wireless standards. Qualcomm takes the position that its patented technologies are essential to those standards and, therefore, that any firm making or selling a standard-compliant product infringes its patents. As a result, the SSOs’ incorporation of Qualcomm’s patented technologies into wireless standards created a huge market for licenses to Qualcomm’s SEPs.

The district court held that Qualcomm used its chipset monopolies, not only to extract the high chip-set prices to which it was entitled, but also to perpetuate those monopolies by disadvantaging rival chip-makers and ...


Federal Research: Additional Actions Needed To Improve Public Access To Research Results, John Neumann Nov 2019

Federal Research: Additional Actions Needed To Improve Public Access To Research Results, John Neumann

Copyright, Fair Use, Scholarly Communication, etc.

Why GAO Did This Study --Research and development helps catalyze breakthroughs that improve the overall health and wellbeing of our society. Federal research and development expenditures averaged about $135 billion annually for fiscal years 2015 to 2017. According to OSTP, providing free public access to federally funded research results can improve both the impact and accountability of this important federal investment. In February 2013, OSTP directed federal agencies with more than $100 million in annual research and development expenditures to develop a plan to support increased public access to the results of federally funded research.

GAO was asked to examine ...


Open Access: Could Defeat Be Snatched From The Jaws Of Victory?, Richard Poynder Nov 2019

Open Access: Could Defeat Be Snatched From The Jaws Of Victory?, Richard Poynder

Copyright, Fair Use, Scholarly Communication, etc.

When news broke early in 2019 that the University of California had walked away from licensing negotiations with the world’s largest scholarly publisher (Elsevier), a wave of triumphalism spread through the OA Twittersphere. The talks had collapsed because of Elsevier’s failure to offer UC what it demanded: a new-style Big Deal in which the university got access to all of Elsevier’s paywalled content plus OA publishing rights for all UC authors – what UC refers to as a “Read and Publish” agreement. In addition, UC wanted Elsevier to provide this at a reduced cost.1 Given its size ...


Framing The Chicago School Of Antitrust Analysis, Herbert J. Hovenkamp, Fiona Scott Morton Nov 2019

Framing The Chicago School Of Antitrust Analysis, Herbert J. Hovenkamp, Fiona Scott Morton

Faculty Scholarship at Penn Law

The Chicago School of antitrust has benefited from a great deal of law office history, written by admiring advocates rather than more dispassionate observers. This essay attempts a more neutral stance, looking at the ideology, political impulses, and economics that produced the Chicago School of antitrust policy and that account for its durability.

The origins of the Chicago School lie in a strong commitment to libertarianism and nonintervention. Economic models of perfect competition best suited these goals. The early strength of the Chicago School of antitrust was that it provided simple, convincing answers to everything that was wrong with antitrust ...


The Flavor Of Open Access Over Rice: Tech Transforms & Transmutes Ed, Rachel S. Evans Nov 2019

The Flavor Of Open Access Over Rice: Tech Transforms & Transmutes Ed, Rachel S. Evans

Articles, Chapters and Online Publications

Rachel Evans crafts a short history of Open Educational Resources and provides a list of tools and other sites for exploring and creating Open Access Textbooks and other materials. The post also recounts a recent Open Access event at UGA Law Library and compares the perils of generationally divided views on access to quality yet affordable education to the clash of tradition and modernity in a particular film The Flavor of Green Tea Over Rice. To close the piece she encourages members to participate in the recently shared ALL-SIS (Academic Law Libraries Special Interest Section) survey about Open Educational Resources ...


Investment In Latin America Will Limit Migration North, Ryan J. O'Riordan, Stanley P. Kowalski Nov 2019

Investment In Latin America Will Limit Migration North, Ryan J. O'Riordan, Stanley P. Kowalski

Law Faculty Scholarship

The refugee crisis at the US Southern Border is due to multiple compounding factors: Latin America’s over-reliance on commodities, failure to economically diversify to innovation, and a lack of coherent US strategic engagement with the region. The situation is hemispheric; imploding states and a serious humanitarian calamity loom ever larger on the southern horizon. Since this represents a long-term problem requiring strategic and sustainable development initiatives, a new Alliance for Progress for the 21st Century is proposed which will build partnerships to advance innovation-driven development across the region.


The Fair Open Access Breakdown Of Publication Services And Fees, Fair Open Access Alliance, Saskia De Vries Nov 2019

The Fair Open Access Breakdown Of Publication Services And Fees, Fair Open Access Alliance, Saskia De Vries

Copyright, Fair Use, Scholarly Communication, etc.

The Fair Open Access Alliance (FOAA) is pleased to present its Breakdown of Publication Services and Fees. A few years ago, FOAA invited several publishers and platforms in a consortium to formulate a response to the ORE call. Members of that group continued to meet informally to discuss the future of academic publishing in Fair Open Access. Specifically, discussions between FOAA and these individual publishers centered on identifying a set of service baskets that could group the various service components provided by an academic publisher, in the context of the price transparency requirement set forth by Plan S. Based on ...


A Roadmap For Action: Academic Community Control Of Data Infrastructure, Sparc, Claudio Aspesi, Nicole Allen, Raym Crow, Shawn Daugherty, Heather Joseph, Joseph Mcarthur, Nick Shockey Nov 2019

A Roadmap For Action: Academic Community Control Of Data Infrastructure, Sparc, Claudio Aspesi, Nicole Allen, Raym Crow, Shawn Daugherty, Heather Joseph, Joseph Mcarthur, Nick Shockey

Copyright, Fair Use, Scholarly Communication, etc.

The need for academic institutions to act to retain control of infrastructure, data and data analytics is here to stay. It is critical for academic leaders to acknowledge that data and its uses play a central role in the operations and the future of their institutions, and take control of how it is managed as a strategic asset.

The time to act is now. Many of the actions outlined in the Risk Mitigation section of this roadmap can be taken relatively quickly, and many institutions already have a head start on these processes in response to GDPR or other requirements ...


18th Annual Recent Developments In Ip Law And Policy Conference, Golden Gate University School Of Law Oct 2019

18th Annual Recent Developments In Ip Law And Policy Conference, Golden Gate University School Of Law

Intellectual Property Law

Welcome to the 18th Annual Conference on Recent Developments in Intellectual Property Law and Policy, presented by the Center for Intellectual Property and Privacy Law (CIPPL) of Golden Gate University School of Law. This annual tradition, begun in late September 2001, was one of the first events developed as part of the foundation of our new IP Law Program. Over the years we have hosted presentations by leading thinkers in the area of IP Law, including Professor & former Senior Advisor to the Obama Administration Justin Hughes, New Yorker writer Ken Auletta, Professor Dan Burk, Professor Susan Scafidi of the Fashion ...


The Uncopyrightability Of Edicts Of Government, Shyamkrishna Balganesh, Peter S. Menell Oct 2019

The Uncopyrightability Of Edicts Of Government, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship at Penn Law

This amicus brief filed in the Supreme Court appeal of Georgia, et al., v. Public.Resource.Org.,explores the interplay of copyright law and the edicts of government doctrine. The “edicts of government” doctrine was first validated by the U.S. Supreme Court in a series of nineteenth century cases. Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); Banks v. Manchester, 128 U.S. 244 (1888); Callaghan v. Meyers, 128 U.S. 617 (1888). While the doctrine has never been directly recognized in the express wording of the copyright statute, it is nevertheless firmly rooted in foundational copyright ...


Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Georgia V. Public.Resource.Org, Inc., No. 18-1150 (U.S. Oct. 16, 2019), Michelle M. Wu Oct 2019

Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Georgia V. Public.Resource.Org, Inc., No. 18-1150 (U.S. Oct. 16, 2019), Michelle M. Wu

U.S. Supreme Court Briefs

Due process and the rule of law require that the public has meaningful access to “the law.” Every major modern society since the Greeks has recognized the importance of this principle. Roscoe Pound, Theories of the Law, 22 Yale L.J. 114, 117 (1912).

In the United States, “the law” largely comes from appellate courts, legislatures, and administrative agencies who have been granted rule-making authority. As every first year law student learns, those law-making bodies have developed highly specific methods for communicating their pronouncements of law through official publications, such as the Official Code of Georgia Annotated (“OCGA”).

Those specific ...


Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Leslie A. Street, David R. Hansen, Kyle K. Courtney Oct 2019

Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Leslie A. Street, David R. Hansen, Kyle K. Courtney

Appellate Briefs

No abstract provided.


A List Of Zea Books, Published By University Of Nebraska-Lincoln Libraries, Zea Books Sep 2019

A List Of Zea Books, Published By University Of Nebraska-Lincoln Libraries, Zea Books

Copyright, Fair Use, Scholarly Communication, etc.

77 published titles (2005-2019), plus 2 forthcoming this fall.

Zea Books are produced by the Office of Scholarly Communications, and published by the University of Nebraska-Lincoln Libraries.

With links to online pdf editions and Lulu.com print-on-demand online storefront.

Zea Books are online at https://digitalcommons.unl.edu/zeabook/

Print-on-demand editions are available @ http://www.lulu.com/spotlight/unllib


Pubfair: A Framework For Sustainable, Distributed, Open Science Publishing Services, Tony Ross-Hellauer, Benedikt Fecher, Kathleen Shearer, Eloy Rodrigues Sep 2019

Pubfair: A Framework For Sustainable, Distributed, Open Science Publishing Services, Tony Ross-Hellauer, Benedikt Fecher, Kathleen Shearer, Eloy Rodrigues

Copyright, Fair Use, Scholarly Communication, etc.

Over the last thirty years, digitally-networked technologies have disrupted traditional media, turning business models on their head and changing the conditions for the creation, packaging and distribution of content. Yet, scholarly communication still looks remarkably as it did in the pre-digital age. The primary unit of dissemination remains the research article (or book in some disciplines), and today’s articles still bear a remarkable resemblance to those that populated the pages of Oldenburg’s Philosophical Transactions 350 years ago. In an age of such disruptive innovation, it is striking how little digital technologies have impacted scholarly publishing; and this is ...


Society Publishers Accelerating Open Access And Plan S - Final Project Report, Alicia Wise, Lorraine Estelle Sep 2019

Society Publishers Accelerating Open Access And Plan S - Final Project Report, Alicia Wise, Lorraine Estelle

Copyright, Fair Use, Scholarly Communication, etc.

Wellcome, UKRI, and the Association of Learned and Professional Society Publishers (ALPSP) commissioned Information Power Ltd to undertake a project to support society publishers to accelerate their transition to Open Access (OA) in alignment with Plan S and the wider move to accelerate immediate OA. This project is part of a range of activity that cOAlition S partners are taking forward to support the implementation of Plan S principles. 27 business models and strategies that can be deployed by publishers to transition successfully to OA were published. We surveyed society publishers about their experience of and interest in these models ...


Accelerating Scholarly Communication: The Transformative Role Of Preprints, Andrea Chiarelli, Rob Johnson, Emma Richens, Stephen Pinfield Sep 2019

Accelerating Scholarly Communication: The Transformative Role Of Preprints, Andrea Chiarelli, Rob Johnson, Emma Richens, Stephen Pinfield

Copyright, Fair Use, Scholarly Communication, etc.

Five take-away messages:

Early and fast dissemination, increased opportunities for feedback and openness are seen as the main benefits of preprints.

The main concerns over preprints are the lack of quality assurance, media potentially reporting inaccurate research and journals rejecting articles if a preprint has been posted.

Twitter has been playing a key enabling role in the current second wave of preprints and preprint servers. It also appears to be the main way researchers are exposed to preprints in the first place.

It is not clear who will be responsible for posting preprints in the long-term – researchers or publishers? This ...


Steering Science Through Output Indicators & Data Capitalism, Ulrich Herb Sep 2019

Steering Science Through Output Indicators & Data Capitalism, Ulrich Herb

Copyright, Fair Use, Scholarly Communication, etc.

Since the mid-1920s, a scientist's performance was tracked by using bibliometric information such as the number of publications or their citations. Today, there are unprecedented possibilities for controlling science by analysing data on production and use of scientific information, so that citations only play a subordinate role in the evaluation of science. To illustrate this change, we take a look at the history of the Dutch publishing house Elsevier and its metamorphosis into a research intelligence service provider, because it ideally reflects the new possibilities of logging and controlling science. ...


Operationalizing The Big Collective Collection: A Case Study Of Consolidation Vs Autonomy, Lorcan Dempsey, Constance Malpas, Mark Sandler Aug 2019

Operationalizing The Big Collective Collection: A Case Study Of Consolidation Vs Autonomy, Lorcan Dempsey, Constance Malpas, Mark Sandler

Copyright, Fair Use, Scholarly Communication, etc.

This is a discussion paper prepared in collaboration with the Big Ten Academic Alliance (BTAA) Library Initiatives. It presents a framework for operationalizing the BTAA collective collection. A collective collection is a collection managed collaboratively across a network of libraries. We have a very specific focus in this paper on the ”purchased” or print collection, acknowledging that other areas of library collections are sometimes managed collectively, digitized collections for example. The BTAA justifiably claims to be the premier academic collaboration in the US. Once described as “the world's greatest common market in education3,” it leverages the combined research and ...


Frand And Antitrust, Herbert J. Hovenkamp Aug 2019

Frand And Antitrust, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This paper considers when a patentee’s violation of a FRAND commitment also violates the antitrust laws. It warns against two extremes. First, is thinking that any violation of a FRAND obligation is an antitrust violation as well. FRAND obligations are contractual, and most breaches of contract do not violate antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation.

Every antitrust case must consider the market environment in which conduct is to be evaluated. SSOs operated by multiple firms are joint ventures. Antitrust’s role ...


Imaginary Bottles, Jessica Litman Aug 2019

Imaginary Bottles, Jessica Litman

Articles

This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade ...


Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder Aug 2019

Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder

Georgetown Law Faculty Publications and Other Works

The quarter century since Barlow’s writing allows us to assess his prophecy. The economy moved in the very direction that Barlow anticipated—from an economy focused on the ownership of things to an economy based on services and experiences. In high-income countries, services now account for three-quarters of the gross domestic product.

But intellectual property proved more resilient and adaptable than Barlow predicted. Intellectual property law both offered exceptions where necessary, while simultaneously expanding to cover new forms of creativity and activities. In this short essay, we argue that, for good or ill, intellectual property has reconfigured itself for ...


A Functional Approach To Judicial Review Of Ptab Rulings On Mixed Questions Of Law And Fact, Rebecca S. Eisenberg Jul 2019

A Functional Approach To Judicial Review Of Ptab Rulings On Mixed Questions Of Law And Fact, Rebecca S. Eisenberg

Articles

The Court of Appeals for the Federal Circuit (“Federal Circuit”) has long relied on active appellate review to bring uniformity and clarity to patent law. It initially treated the PTO the same as the federal district courts, reviewing its factual findings for clear error and its legal conclusions de novo. Following reversal by the Supreme Court in Dickinson v. Zurko, the Federal Circuit began giving greater deference to PTO factual findings. But it continued to review the PTO’s legal conclusions de novo, while coding an expansive list of disputed issues in patent cases as legal conclusions, even when they ...


The Law And Accessible Texts: Reconciling Civil Rights And Copyrights, Brandon Butler, Prue Adler, Krista Cox Jul 2019

The Law And Accessible Texts: Reconciling Civil Rights And Copyrights, Brandon Butler, Prue Adler, Krista Cox

Copyright, Fair Use, Scholarly Communication, etc.

Executive Summary

Institutions of higher education (IHEs—colleges, community colleges, and universities) have a mission to provide all students, including those with disabilities (a physical or mental impairment that substantially limits one or more major life activities), with opportunities for a rich, deep, and equitable learning experience, and to provide all researchers with access to a comprehensive and varied collection of information resources to support their work. Several disability rights laws create obligations for IHEs to ensure that students and researchers with disabilities have access to resources, including texts, at a level that is as close as reasonably possible to ...


Media And Repository Support Unit, University Of Nebraska–Lincoln Libraries, Annual Report July 2018–June 2019, Deeann Allison, Linnea Fredrickson, Sue A. Gardner, Richard Graham, Paul Royster, John Wiese, Andrew Cano, Kate Kane, Jennifer L. Thoegersen Jul 2019

Media And Repository Support Unit, University Of Nebraska–Lincoln Libraries, Annual Report July 2018–June 2019, Deeann Allison, Linnea Fredrickson, Sue A. Gardner, Richard Graham, Paul Royster, John Wiese, Andrew Cano, Kate Kane, Jennifer L. Thoegersen

Copyright, Fair Use, Scholarly Communication, etc.

Increasingly, libraries are recognizing the importance of providing access to the research output of their universities. In a June 10, 2019, news release from the provosts of the Big Ten Academic Alliance (BTAA) titled “Sustaining Values and Scholarship” (available at https://tinyurl.com/yyu94aa9), they state, “The Big Ten Academic Alliance will continue its advocacy for a sustainable and open ecosystem of publication. . . . Collectively, our institutions’ more than 50,000 faculty are supported by over $10 billion (2017) in research funding, and our institutions have similarly invested significantly in our capacity to further our missions to advance knowledge. Together, we ...


“A World Not Dependent On Sales: Sustainable, Oa Monograph Publishing”--P2l3 Summary And Next Steps: P2l3 Meeting June 14, 2019, Detroit, Mi, Association Of University Presses, Association Of Research Libraries Jul 2019

“A World Not Dependent On Sales: Sustainable, Oa Monograph Publishing”--P2l3 Summary And Next Steps: P2l3 Meeting June 14, 2019, Detroit, Mi, Association Of University Presses, Association Of Research Libraries

Copyright, Fair Use, Scholarly Communication, etc.

Table of Contents P2L3 Meeting Planning Committee 3 Land Acknowledgment 3 Participants 3 Introduction 5 Presentations 7 Opening Plenary: Generous Thinking Lightning Rounds Promising New Models: MIT and University of Michigan MIT University of Michigan Highlights from Roundtable Discussions 11 Digital Scholarship and Digital Humanities Flipping the Financial Model for Monographs Engaging with Library Communications and Development Next Steps for P2L 13 Endnotes 14

In choosing as its theme a “world not dependent on sales,” the P2L3 Meeting Planning Committee situated P2L in the context of a long-running Andrew W. Mellon Foundation–funded research and innovation agenda on monographs in ...


Elite Patent Law, Paul Gugliuzza Jul 2019

Elite Patent Law, Paul Gugliuzza

Faculty Scholarship

Over the last twenty years, one of the most significant developments in intellectual property law has been the dramatic increase in the number of patent cases decided by the U.S. Supreme Court. That same time period has also seen the emergence of a small, elite group of lawyers specializing not in any particular area of substantive law but in litigation before the Supreme Court. In recent empirical work, I linked the Court’s growing interest in patent law to the more frequent participation of elite Supreme Court lawyers in patent cases, particularly at the cert. stage. Among other things ...