Law Commons^™

Anticipating Technology: A Statute Bytes The Dust In Recording Industry Ass'n Of America V. Diamond Multimedia Systems, Inc., Stephanie Skasko Rosenberg

Villanova Law Review

No abstract provided.

Fighting The Phantom Menace: The Motion Picture Industry's Struggle To Protect Itself Against Digital Piracy, S. E. Oross

Vanderbilt Journal of Entertainment & Technology Law

Digital technology, combined with the influence of the Internet, represents an increasingly dangerous threat to the protection of copyrights in the global marketplace. Industries like Hollywood with business models based primarily on selling and/or licensing intellectual property have much to lose if that protection falters.

Jack Valenti, the president of the MPAA, knows this all too well. In recent testimony before the House Subcommittee on Telecommunications, Trade and Consumer Protection of the Commerce Committee, he described how the growing availability of certain digital technology could turn online piracy into the bane of the motion picture industry. Noting that Internet pirates …

Protection Of Intellectual Property Rights And The Impact Of Trips, Sowmiya R.K. Sikal

LLM Theses and Essays

This thesis focuses on the importance of intellectual property rights and its protection in the international arena. Coming from a developing country - India, I have always been fascinated with the area of international intellectual property rights protection because of its severe ramification on the economy and the social structure of developing countries. The impact of heightened protection of intellectual property rights has been a controversial issue between developed and developing countries for many years. In this paper, I have examined intellectual property rights, need for its protection, conventions, treaties and agreements present for the protection of intellectual property including …

Cruel, Mean, Or Lavish? Economic Analysis, Price Discrimination And Digital Intellectual Property, James Boyle

Faculty Scholarship

No abstract provided.

Re-Examining The Role Of Patents In Appropriating The Value Of Dna Sequences, Rebecca S. Eisenberg

Articles

As public and private sector initiatives race to complete the sequence of the human genome, patent issues have played a prominent role in speculations about the significance of this achievement. How much of the genome will be subject to the control of patent holders, and what will this mean for future research and the development of products for the improvement of human health? Is a patent system developed to establish rights in mechanical inventions of an earlier era up to the task of resolving competing claims to the genome on behalf of the many sequential innovators who elucidate its sequence …

Patent Infringement Damages In Japan And The United States: Will Increased Patent Infringement Damage Awards Revive The Japanese Economy?, Toshiko Takenaka

Articles

Accordingly, this Article will look at the impact of the new Japanese legislation on patent infringement damages and will discuss whether the increase in damage awards contributes to the creation of breakthrough technology. To understand this impact, Part I will discuss pre-1998 legislation damages and highlight the difference between damages awarded by United States courts and those awarded by Japanese courts, by comparing United States and Japanese case examples. In examining the general tort and patent law theories, Part I will also try to identify the source of the difference and discuss how this difference is reflected in current United …

World Music On A U.S. Stage: A Berne/Trips And Economic Analysis Of The Fairness In Music Licensing Act, Laurence R. Helfer

Faculty Scholarship

This article analyzes the dispute settlement proceedings pending before the World Trade Organization (WTO) concerning the Fairness in Music License Act of 1998, a new provision of the US Copyright Act that exempts many bars, restaurants, and retail stores from paying license fees for performing broadcast music in their establishments. In May 1999, the European Community challenged the Act, and its predecessor "homestyle exemption," as a violation of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) and the Berne Convention for the Protection of Literary and Artistic Works (Berne). The FMLA dispute is the first time in …

Strategic Disclosure In The Patent System, Douglas Lichtman, Scott Baker, Kate Kraus

Scholarship@WashULaw

Patent applications are evaluated in light of the prior art. What this means is that patent examiners evaluate a claimed invention by comparing it with what in a rough sense corresponds to the set of ideas and inventions already known to the public. This is done for three reasons. First, the comparison helps to ensure that patents issue only in cases where an inventor has made a non-trivial contribution to the public's store of knowledge. Second, it protects a possible reliance interest on the part of the public since, once an invention is widely known, members of the public might …

A Circus Among The Circuits: Would The Truly Famous And Diluted Performer Please Stand Up? The Federal Trademark Dilution Act And Its Challenges, Xuan-Thao Nguyen

Articles

Sometimes, nothing is more painful than the truth. Congress passed the celebrated Federal Trademark Dilution Act of 1995 (“the Act” or the “Dilution Act”) with great hope that it would create a uniform anti-dilution law, end forum shopping, and encourage trademark owners to build brand equity with more ease. Congress was overwhelmingly in favor the Act, and thus passed it with little debate, leaving behind a sparse congressional record. In its haste to pass the Act, Congress failed to address whether the Act extends to product design marks; whether the Act requires proof of actual economic harm, or if likelihood …

Extending Copyright And The Constitution: "Have I Stayed Too Long", Michael H. Davis

Law Faculty Articles and Essays

On October 27, 1998, President Clinton signed into law the Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (hereinafter the “Bono Law”). The Bono Law extended the term of copyright protection by an additional twenty years, both prospectively and retrospectively. The former is probably constitutionally proper; the latter is almost certainly forbidden by the Constitution's copyright clause. But most criticism5 has not forcefully distinguished between retrospective as opposed to prospective extension and so far has failed to convince either Congress or the courts of any constitutional infirmity. This is because most critics agree-or …

The Screenwriter's Indestructible Right To Terminate Her Assignment Of Copyright: Once A Story Is 'Pitched' A Studio Can Never Obtain All Copyrights In The Story, Michael Henry Davis

Law Faculty Articles and Essays

It is probably not quite fraud, though it comes terribly close to it, when motion picture and television production companies convince their writers to part with the rights to their stories when they sign with the companies. Despite contracts that claim the writer has no rights to the resulting script (either because the author has assigned his rights “in perpetuity” or because he has agreed to produce a “workfor hire”), U.S. copyright law provides many authors, perhaps the vast majority of them, with a future right that cannot be lost and can always be regained, irrespective of any written contract …

Deluxe Editions And The Copyright Monopoly, Robert Spoo

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Implied Limits On The Legislative Power: The Intellectual Property Clause As An Absolute Constraint On Congress, Paul J. Heald, Suzanna Sherry

Scholarly Works

Professors Heald and Sherry argue that the language of Article I, Section 8, Clause 8, the Intellectual Property Clause, absolutely constrains Congress's legislative power under certain circumstances. Their analysis begins by looking at other limits on the legislative power that the Court has found in the Bankruptcy Clause, the Eleventh Amendment, the Tenth Amendment, and Article III. Then by examining the history and structure of the Intellectual Property Clause and relevant precedent, they distill four principles of constitutional weight--the Suspect Grant Principle, the Quid Pro Quo Principle, the Authorship Principle, and the Public Domain Principle. These principles inform the Court's …

A Theory Of Claim Interpretation, Craig Allen Nard

Faculty Publications

This article explores the proper scope of judicial power in patent law by focusing on the Federal Circuit's theories of claim interpretation. A study of the court's claim interpretation jurisprudence reveals two schools of interpretation. I characterize these approaches as (1) hypertextualism, which is the predominant interpretative theory; and (2) pragmatic textualism, which is gradually asserting itself. The hypertextualist judge has an expansive view of judicial power, characterizing claim interpretation as a question of law subject to de novo review. This highly formalistic approach stresses textual fidelity and internal textual coherence, but eschews extrinsic evidence as an interpretive tool, portraying …

International Copyright: From A "Bundle" Of National Copyright Laws To A Supranational Code?, Jane C. Ginsburg

Faculty Scholarship

In recent years, the number and content of substantive norms that international copyright treaties impose on member states have increased considerably. It is therefore appropriate to consider the extent to which those instruments have in effect created an international (or at least multinational) copyright code, as well as to inquire what role national copyright laws do and should have in an era not only of international copyright norms, but of international dissemination of copyrighted works. This Article first considers the displacement of national norms through the evolution of a de facto international copyright code, elaborated in multilateral instruments such as …

Examined Lives: Informational Privacy And The Subject As Object, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In the United States, proposals for informational privacy have proved enormously controversial. On a political level, such proposals threaten powerful data processing interests. On a theoretical level, data processors and other data privacy opponents argue that imposing restrictions on the collection, use, and exchange of personal data would ignore established understandings of property, limit individual freedom of choice, violate principles of rational information use, and infringe data processors' freedom of speech. In this article, Professor Julie Cohen explores these theoretical challenges to informational privacy protection. She concludes that categorical arguments from property, choice, truth, and speech lack weight, and mask …

Copyright Use And Excuse On The Internet, Jane C. Ginsburg

Faculty Scholarship

1998 ended with voluminous copyright legislation, pompously titled the "Digital Millennium Copyright Act" [hereafter "DMCA"], and intended to equip the copyright law to meet the challenges of online digital exploitation of works of authorship. 1999 and 2000 have brought some of the ensuing confrontations between copyright owners and Internet entrepreneurs to the courts. The evolving caselaw affords an initial opportunity to assess whether the copyright law as abundantly amended can indeed respond to digital networks, or whether the rapid development of the Internet inevitably outstrips Congress' and the courts' attempts to keep pace.

In titling this Article "Copyright Use and …

The Promise And Perils Of Strategic Publication To Create Prior Art: A Response To Professor Parchomovsky, Rebecca S. Eisenberg

Articles

In a provocative recent article in the Michigan Law Review, Professor Gideon Parchomovsky observes that a firm racing with a competitor to make a patentable invention might find it strategically advantageous to publish interim research results rather than risk losing a patent race. This strategy exploits legal rules limiting patent protection to technological advances that are new and "nonobvious" in light of the "prior art" or preexisting knowledge in the field. By publishing research results, a firm adds to the prior art and thereby limits what may be patented in the future. Parchomovsky posits that, before it is able to …

Analyze This: A Law And Economics Agenda For The Patent System, Rebecca S. Eisenberg

Articles

Legal scholars and economists might enhance the value and impact of their work by making more effective use of each other's knowledge and capabilities. Legal scholars can offer a more nuanced understanding of the legal rules that underlie the patent system and the doctrinal levers that might be manipulated in furtherance of public policy goals. Economists bring to bear a set of analytical and methodological tools that could shed considerable light on what these doctrinal levers are doing and which of them we ought to be manipulating. Together, we have a better chance of asking the right questions and thinking …

Copyright As A Model For Free Speech Law: What Copyright Has In Common With Anti-Pornography Laws, Campaign Finance Reform, And Telecommunications Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright raises real and troubling free speech issues, and standard responses to those concerns are inadequate. This Article aims to put copyright in the context of other free speech doctrine. Acknowledging the link between copyright and free speech can help determine the proper contours of a copyright regime that both allows and limits property rights in expression, skewing the content of speech toward change.

The Public Choice Of Choice Of Law In Software Transactions: Jurisdictional Competition And The Dim Prospects For Uniformity, Edward J. Janger

Faculty Scholarship

No abstract provided.

From International Treaties To Internet Norms: The Evolution Of International Trademark Disputes In The Internet Age, Ajay K. Mehrotra, Marcelo Halpern

Articles by Maurer Faculty

In today's dynamic, digital economy, there is a global clash between geographically bounded intellectual property rights and the limitless reach of the Internet. Traditionally, discrepancies in international intellectual property rights, such as trademark disputes, have been resolved through time-consuming, multilateral state-to-state treaty negotiations that have global harmonization as the primary goal.

With the explosion of e-commerce and the birth of a New Economy, however, such a traditional process is no longer economically viable. Instead, a new approach towards international intellectual property is fast emerging - one that rests not on treaties between multiple states, but on the private contracting of …

Copyright And The Perfect Curve, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

This essay argues that the assumption that “progress” is qualitatively independent of the underlying entitlement structure is wrong. In particular, I shall argue that a shift to a copyright rule structure based on highly granular, contractually enforced “price discrimination” would work a fundamental shift, as well, in the nature of the progress produced. The critique of the contractual price discrimination model, moreover, exposes deep defects in the use of neoclassical “law and economics” methodology to solve problems relating to the incentive structure of copyright law. What is needed, instead, is an economic model of copyright that acknowledges the central role …

The Constitutionality Of Copyright Term Extension: How Long Is Too Long, Jane C. Ginsburg, Wendy J. Gordon, Arthur R. Miller, William F. Patry

Faculty Scholarship

I am Professor William Patry of the Benjamin N. Cardozo School of Law. I will be the moderator of this star-studded debate on the Sonny Bono Copyright Term Extension Act.

This panel will try to determine, on the great continuum of limited times that the Constitution prescribes for copyright in Article I, Section 8, Clause 8, the term of protection that Congress has actually fixed. In other words: How long is too long? Sonny's bill establishes a term of protection of life plus seventy years for individual authors for works created on or after January 1, 1978. The bill retroactively …

Patents And Cumulative Innovation, Clarisa Long

Faculty Scholarship

Proprietary rights to the products of biomedical research have repeatedly been a source of controversy for over twenty years. Patents on biomedical innovations have allowed scientists, academics, and research institutions to raise research funds and have contributed to the growth of the biotechnology industry. But “one firm’s research tool may be another firm’s end product.” Patents have been a source of great concern for academic and basic researchers, who fear that proprietary rights to basic research results will hamper the progress of science, stifle the free flow of new knowledge and the dissemination of research results, and chill the research …

Toward A Doctrine Of Fair Use In Patent Law, Maureen A. O'Rourke

Faculty Scholarship

The intellectual property laws are becoming increasingly stressed as their largely time-worn doctrines grapple with problems posed by new technology. In this Article, Dean O'Rourke argues that this pressure has become particularly acute in patent law where policymakers have expanded protection without concomitantly evaluating the impact of that move on follow-on innovation. The traditional assumption that patentees will efficiently license their inventions is breaking down as market failures are becoming endemic. Dean O'Rourke argues that to ensure that patent law achieves its constitutional goals, it shuld, like copyright law, use a fair use defense to address problems of market failure. …

Copyright And Parody: Touring The Certainties Of Property And Restitution, Wendy J. Gordon

Faculty Scholarship

One of the supposed certainties of the common law is that persons need not pay for benefits they receive except when they have agreed in advance to make payment. The rule takes many forms. One of the most familiar is the doctrine that absent a contractual obligation, a person benefited by a volunteer ordinarily need not pay for what he has received. This rule supposedly both encourages economic efficiency and respects autonomy.

Everclear, Kembrew Mcleod

Kembrew McLeod

No abstract provided.

The Offspring, Kembrew Mcleod

Kembrew McLeod

No abstract provided.

Ween, Kembrew Mcleod

Kembrew McLeod

No abstract provided.