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Full-Text Articles in Law
Unfinished Business: Are Today’S P2p Networks Liable For Copyright Infringement?, Christine Pope
Unfinished Business: Are Today’S P2p Networks Liable For Copyright Infringement?, Christine Pope
Duke Law & Technology Review
In June 2005, the U.S. Supreme Court issued the decision in Metro-Goldwyn-Mayer Studios v. Grokster Ltd., a case that asked whether peer-to-peer networks may be held liable for facilitating the illegal distribution of music over the internet. The music industry petitioned the Supreme Court to settle the disagreement between the circuit courts over the standard of liability for aiding in copyright infringement. The case was based on a clash between the protection of technological innovation and the protection of artistic works. This iBrief examines the circuit split and the Grokster opinion and discusses the questions of liability left unresolved by …
Keyword-Linked Advertising, Trademark Infringement, And Google’S Contributory Liability, Benjamin Aitken
Keyword-Linked Advertising, Trademark Infringement, And Google’S Contributory Liability, Benjamin Aitken
Duke Law & Technology Review
A number of trademark holders have recently challenged the policies of Google and other Internet search engines that allow the trademark owner's competitors to purchase advertising space linked specifically to the owner's trademarks when entered as search terms. This iBrief examines the application of trademark law to this practice and concludes that Google would be contributorially liable for trademark infringement only when the advertising links lead to consumer confusion about the identity of the advertiser.
Better To Give Than To Receive: Evaluating Recent Ip Donation Tax Policy Changes, Don Macbean
Better To Give Than To Receive: Evaluating Recent Ip Donation Tax Policy Changes, Don Macbean
Duke Law & Technology Review
Over the past decade, charitable contributions of intellectual property have grown rapidly. This growth has coincided with tremendous abuse as firms have sought inflated valuations of donated intellectual property in order to claim larger tax deductions. In 2004, Congress responded by passing section 882 of the American Jobs Creation Act, which drastically changed the rules governing donations of intellectual property. This iBrief argues that Congress, in addressing overvalued intellectual property donations, went too far in its efforts by failing to fully consider the importance of positive donor incentives. After discussing other proposed policies, this iBrief suggests a hybrid policy that …
From Deepsouth To The Great White North: The Extraterritorial Reach Of United States Patent Law After Research In Motion, Daniel P. Homiller
From Deepsouth To The Great White North: The Extraterritorial Reach Of United States Patent Law After Research In Motion, Daniel P. Homiller
Duke Law & Technology Review
In the Internet age, complex telecommunications systems are often deployed with little regard for international borders. In NTP, Inc. v. Research in Motion, Ltd., the Federal Circuit determined that one such system infringed several U.S. patents, despite the fact that an essential element of the system was located outside the territorial United States. This iBrief argues that the Federal Circuit erred in invoking the "control and beneficial use" test, which it culled from the very few prior cases addressing extraterritorial application of U.S. patent law. In doing so, the court disregarded the Supreme Court's direction in Deepsouth Packing Co. v. …
A New Paradigm For Intellectual Property Rights In Software, Mark H. Webbink
A New Paradigm For Intellectual Property Rights In Software, Mark H. Webbink
Duke Law & Technology Review
A Winter 2004 article by Bradford L. Smith and Susan O. Mann of Microsoft published in The University of Chicago Law Review suggests that the development and growth of the software industry in the U.S. is a direct outgrowth of the implementation of intellectual property regimes, specifically copyright and patent, with respect to software in the late 1970s and early 1980s. This paper suggests that such patents were neither the sole nor the principal factor for the development of the software industry, that concerns about patents manifested prior to or soon after their application to software have proven true, and …
Troll Or No Troll? Policing Patent Usage With An Open Post-Grant Review, David G. Barker
Troll Or No Troll? Policing Patent Usage With An Open Post-Grant Review, David G. Barker
Duke Law & Technology Review
In December 2004, a mystery business, JGR Acquisitions Inc., purchased the patent portfolio of bankrupt Commerce One at auction. Commerce One had not previously enforced the acquired patents and many companies were using the patented technologies at the time of the auction. Patent watchdog groups argued that JGR--a potential patent troll formed solely to purchase Commerce One's patents--should not be able to use the patents as a vehicle to extract licensing fees and that the patents should lapse into the public domain. Under current law, however, there is no provision for patents to be invalidated merely because they are used …
Google Library: Beyond Fair Use?, Elisabeth Hanratty
Google Library: Beyond Fair Use?, Elisabeth Hanratty
Duke Law & Technology Review
Last December Google announced the formation of partnerships with select major libraries to begin digitizing and storing the libraries' collections online. Google aims to provide individuals with the ability to search the full text of these books from anywhere using the Google search engine. This project will greatly increase access to those works in the public domain, but what about the books still under copyright protection? This iBrief examines the copyright implications of this ambitious project and concludes that the project, as described, does infringe the rights of copyright holders. It further concludes that while such infringement is unlikely to …
Television: Peer-To-Peer’S Next Challenger, D. Branch Furtado
Television: Peer-To-Peer’S Next Challenger, D. Branch Furtado
Duke Law & Technology Review
The entertainment industry has obsessed over the threat of peer-to-peer file sharing since the introduction of Napster in 1999. The sharing of television content may present a compelling case for fair use under the long-standing "Betamax" decision. Some argue that television sharing is fundamentally different than the distribution of music or movies since television is often distributed for free over public airwaves. However, a determination of fair use is unlikely because of the fundamental differences between recording a program and downloading it, recent regulation to suppress unauthorized content distribution and shifts in the television market brought on by new technology.
Willful Infringement And The Evidentiary Value Of Opinion Letters After Knorr–Bremse V. Dana, Joshua Stowell
Willful Infringement And The Evidentiary Value Of Opinion Letters After Knorr–Bremse V. Dana, Joshua Stowell
Duke Law & Technology Review
Recently, the Federal Circuit in Knorr-Bremse v. Dana overruled almost twenty years of precedent by striking down the adverse inference doctrine, which had created a negative presumption against any alleged patent infringer for failing to obtain and disclose a patent opinion letter at trial. The decision, while strongly supported by numerous intellectual property and business associations, has created uncertainty for patent attorneys regarding the use of opinion letters in litigation and the acceptable methods for proving willful infringement. This iBrief addresses two specific questions left unanswered by the decision. It concludes that (1) Federal Circuit precedent strongly suggests that the …
Patent Damage Strategies And The Enterprise License: Constructive Notice, Actual Notice, No Notice, James W. Soong
Patent Damage Strategies And The Enterprise License: Constructive Notice, Actual Notice, No Notice, James W. Soong
Duke Law & Technology Review
For the patent owner, early provision of patent notice can help maximize recoverable infringement damages during subsequent litigation. This iBrief recognizes a growing trend of infringement suits predicated on patented enterprise software technology, and analyzes application of patent notice principles against industry convention. This iBrief examines the licensing paradigm of enterprise software and questions whether mechanical compliance with the marking statute should qualify as constructive notice. Borrowing from analogous Federal Circuit principles, this iBrief concludes by proposing alternate notice theories that would empower patentees to seek increased remedies consistent with industry reality, case law, and fundamental statutory purpose.