Law Commons^™

Revisiting Injunctive Relief: Interpreting Ebay In High-Tech Industries With Non-Practicing Patent Holders, Anne S. Layne-Farrar

Anne S. Layne-Farrar

The Supreme Court’s 2006 eBay ruling marked a turning point in injunctive relief policy. Unfortunately, there seems to be considerable confusion about the implications of the decision. Some authors, concerned over patent holdup and excessive royalty rates, interpret the eBay decision as giving a green light to district courts to deny injunctive relief to “non-manufacturing patent owners”. Using an error cost framework, we examine the theory and evidence behind patent holdup concerns as they relate to injunctive relief policy. We find that the holdup theory justifying categorical limitations on injunctive relief rests upon overly narrow assumptions. As a result, categorical …

Performance Anxiety: The Internet And Copyright's Vanishing Performance/Distribution Distinction, Jonah M. Knobler

Jonah M. Knobler

This article attempts to answer two related questions on the subject of copyright law in the Internet age: First: Under present U.S. copyright law, does the delivery of a digital music file over the Internet as a “download” necessarily implicate the copyright holder’s right of public performance, above and beyond the obviously implicated rights of distribution and reproduction, as the music industry claims it does? This article examines the recent decision in United States v. ASCAP (S.D.N.Y. 2007), which held that it does not. The article also independently applies the major techniques of statutory interpretation to the relevant portions of …

The Freedom To Copy: Copyright, Creation And Context, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Although much separates them musically, George Harrison and Michael Bolton share a common legal fate. Both have been held liable in copyright infringement cases in which a court articulated theories of liability based on subconscious infringement. This Article discusses how decisions in the Bolton, Harrison, and other copyright infringement cases reflect a common failing. Such decisions highlight the incomplete nature of the theories of creativity and creation processes in copyright doctrine. After discussing current approaches to questions of creation, this Article suggests ways in which copyright theory can better incorporate a contextualized understanding of creativity and creation processes. Creativity in …

What's In A Name Or, Better Yet, What's It Worth?: Cities, Sports Teams And The Right Of Publicity, Mitchell J. Nathanson

Working Paper Series

This article examines the harm that accompanies real and threatened in-market relocations of professional sports teams and proposes a federal statutory remedy that will protect the interest of city residents given the reality that city governments have demonstrated their inability to adequately protect their electorate through contract law alone. Although, as this article discusses, there have been myriad bills proposed by Congress in response to several high profile out-of-market sports franchise relocations (mostly those involving NFL teams and mostly during the 1990’s), in-market relocations have historically occurred much more frequently, inflicting similar harms to the spurned city residents. Moreover, as …

Assessing The Moral Legitimacy Of Statutory Damages In Copyright , Ben R. Kociubinski

Ben R Kociubinski

No abstract provided.

Expanding Preferential Treatment Under The Record Rental Amendment Beyond The Music Industry, Ryan G. Vacca

Akron Law Faculty Publications

This Article explores the development of copyright law’s first sale doctrine and the Record Rental Amendment (RRA) in light of the Sixth Circuit’s interpretation of the RRA in Brilliance Audio, Inc. v. Haights Cross Communications, Inc. This Article does not take issue with the court’s conclusion, but instead uses the differing conclusions of the majority and dissent to illustrate that the RRA exception is in need of Congressional clarification. This Article also examines whether the Record Rental Amendment should be amended to include audiobooks and other non-musical works, concluding that they should. The author then proposes two alternative amendments to …

Reason Or Madness: A Defense Of Copyright's Growing Pains, Marc H. Greenberg

Marc H. Greenberg

The inspiration for this article came from my attendance a few years ago at an AALS panel of First Amendment scholars. The subject of the panel was the effect intellectual property law, and in particular, copyright law, had on free speech rights. One of the panelists asserted the view that copyright law posed the greatest threat to First Amendment freedoms in this generation. Although probably intentionally overstated, this provocative statement exemplified the passionate feelings of many in the academy.

Over the last twenty years a debate has been growing between scholars and practitioners over whether the duration and scope of …

Patent Eligible Subject Matter In The Biotechnological Arts, Benjamin A. Keim

Benjamin A Keim

This paper compares the patentability of biotechnology inventions under the laws of the United States, Canada, Australia, and New Zealand. Five specific categories of biotechnology are examined: genes and DNA, microorganisms, plants and animals, human embryonic stem cells, and medical methods. The WTO-TRIPS agreement establishes the underlying framework followed by these countries. All of these counties allow patenting of genes and DNA as well as microorganisms. Plant and animal patents are allowed in all the countries except Canada. Surgical and medical methods are only patentable in the U.S. and Australia. Human embryonic cells are patentable in all jurisdictions, except for …

Intellectual Property Piracy: Perception And Reality In China, The United States, And Elsewhere, Aaron Schwabach

Aaron Schwabach

The article is intended as a counterpoint to the all-too-frequent portrayal of China as the world’s leading violator of intellectual property rights. In fact, by many measures China, taken as a whole, is not the leading violator. Some measures show China as the leading violator only because they are aggregates, and do not take into account China’s size. When figures are adjusted for population, China’s rates of intellectual property violation are lower than those of many other countries, including the United States. The article first looks at examples of the current round of political and media China-bashing. It then examines …

De-Sanctified Novelties: The Museum Gift Shops After Bridgeman, J. Hunter Summerford

J. Hunter Summerford

No abstract provided.

Clicking And Cringing, Nancy Kim

Nancy Kim

Shrinkwrap, clickwrap and browsewrap licenses have complicated contract law by introducing non-traditional methods of contracting to govern the use of software. The retention of the underlying intellectual property by the licensor, and the malleable qualities of software, give rise to the ability and the need to set parameters of use. The courts have tended to defer to the ownership rights of licensors by claiming that there is valid contract formation, even in “rolling contract” situations. Some commentators have argued that existing contract law doctrines – such as unconscionability and good faith – are sufficient to address digital-era contracting dilemmas. While …

New Patent Regime In India: Challenges And Future Of The Pharmaceutical Industry, Shashi Sharma

Shashi Sharma

No abstract provided.

Towards A Functional Definition Of Publication In Copyright Law, Thomas F. Cotter

Thomas F. Cotter

The questions of whether, when, and where an author has “published” her work of authorship traditionally has given rise to, and continues to give rise to, numerous consequences, including the protectability of the work under U.S. copyright law; the running of various time periods, including a grace period for registering the copyright and the termination of copyright in works made for hire; the applicability of fair use and other exceptions to copyright liability; and the imposition of the duty to deposit two copies of the work with the Library of Congress. Although the 1976 Copyright Act, unlike its predecessors, includes …

Grokster Unplugged: It's Time To Legalize P2p File Sharing, John O. Hayward

John O. Hayward

Although the U.S. Supreme Court in 2005 held that providers of P2P file sharing software could be liable for contributory copyright infringement, millions of people continue to illegally download music and movies in spite of the threat of litigation from the RIAA. The paper argues that the entertainment industry has never been in the forefront of technological innovation, while copyright laws prohibiting P2P are regarded as lacking legitimacy, much like Prohibition in the 1920’s and speeding and public morality laws today. Since enforcement of the law is leading to invasions of privacy, the stifling of technological innovation, and the criminalization …

Trademark Extortion: The End Of Trademark Law, Kenneth L. Port

Kenneth L. Port

Trademark litigation in America today is undergoing a profound change. Based on a review of all trademark cases reported since the Lanham Act took effect, this article concludes that this profound change is due to “trademark extortion,” the use of strike suits and the like to deter market entrants. All 7,500 reported trademark decisions between 1947 and 2005 were read. Of those, 2,659 were truly substantive cases that terminated a trademark law suit. The claimant of a trademark right prevailed only 51% of the time. They prevailed in getting an injunction in only 55% of those cases demanding one. Only …

Trademark Extortion: The End Of Trademark Law, Kenneth L. Port

Kenneth L. Port

Trademark litigation in America today is undergoing a profound change. Based on a review of all trademark cases reported since the Lanham Act took effect, this article concludes that this profound change is due to 鍍rademark extortion,・the use of strike suits and the like to deter market entrants. All 7,500 reported trademark decisions between 1947 and 2005 were read. Of those, 2,659 were truly substantive cases that terminated a trademark law suit. The claimant of a trademark right prevailed only 51% of the time. They prevailed in getting an injunction in only 55% of those cases demanding one. Only 5.5% …

Asserting Foreign Patent Claims In U.S. Federal Courts: What’S Left After Voda V. Cordis?, Eric D. Chan

Eric David Chan

Patent law is inherently territorial; a patent covers infringing activity only within the borders of the nation in which it should granted. However, this makes enforcing patent rights worldwide a daunting challenge. Rather than recklessly extending the extraterritorial reach of U.S. patent law, a better alternative would be to assert claims for infringement of multiple foreign patents in a single, U.S. forum.

This paper focuses on the new barriers raised to the prospects for such consolidated, multinational patent infringement proceedings by Voda v. Cordis, decided by the Federal Circuit in February. Voda held that federal supplemental jurisdiction should almost never …

Property, Persona, And Publicity, Deven R. Desai

Deven R. Desai

This article focuses on a paradox latent within the nature of creative phenomenon: although one can find strong arguments for control over intangible creations during one’s life, these arguments falter if not fail after the creator dies. Two interconnected problems posed by the growth of online creation illustrate the problem. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people’s property all the time. In addition, when one dies, some …

Copyright And Creativity, Dennis S. Karjala

Dennis S Karjala

This article challenges the commonly articulated position that copyright is designed for the protection of “creativity” and argues that the Supreme Court in the well known case of Feist v. Rural Telephone Service was wrong in appending, as a constitutional matter, a creativity requirement for copyright protection. The central thrust is that “creativity” is useless in making the basis intellectual property determination of whether a given work should be (a) protected under copyright, (b) protected under patent, or (c) not protected at all under intellectual property law, because all three categories routinely include creative works, even highly creative works, within …

Copyright And Creativity, Dennis S. Karjala

Dennis S Karjala

This article challenges the commonly articulated position that copyright is designed for the protection of “creativity” and argues that the Supreme Court in the well known case of Feist v. Rural Telephone Service was wrong in appending, as a constitutional matter, a creativity requirement for copyright protection. The central thrust is that “creativity” is useless in making the basis intellectual property determination of whether a given work should be (a) protected under copyright, (b) protected under patent, or (c) not protected at all under intellectual property law, because all three categories routinely include creative works, even highly creative works, within …

Patentee Overcompensation And The Entire Market Value Rule, Brian J. Love

Brian J. Love

This article studies the “entire market value rule,” a U.S. patent law doctrine that, when applied, allows the owner of a component invention to capture the entire value of a larger infringing product that unlawfully incorporates its invention. I argue that the entire market value rule systematically results in the overcompensation of patent owners relative to their inventive contributions to society. First, I examine the current state of entire market value rule case law. I track the doctrine’s evolution over time and explain that, from its modest origins, the doctrine has been expanded far beyond the rationales that led to …

Trademark Extortion: The End Of Trademark Law, Kenneth L. Port

Kenneth L. Port

Trademark litigation in America today is undergoing a profound change. Based on a review of all trademark cases reported since the Lanham Act took effect, this article concludes that this profound change is due to 鍍rademark extortion,・the use of strike suits and the like to deter market entrants. All 7,500 reported trademark decisions between 1947 and 2005 were read. Of those, 2,659 were truly substantive cases that terminated a trademark law suit. The claimant of a trademark right prevailed only 51% of the time. They prevailed in getting an injunction in only 55% of those cases demanding one. Only 5.5% …

Infringement & The International Reach Of U.S. Patent Law, Moin A. Yahya, Cameron Hutchison

Moin A Yahya

American Patent Law, through both judicial and legislative efforts, has evolved from a strict territorial based set of laws asserting jurisdiction only over those infringements taking place on American soil to a more expansive set of rules asserting jurisdiction over any event that may harm patent holders in the United States regardless of where the infringement is taking place. This, we argue, is contrary to the original purpose of Patent Law and inconsistent with American obligations under the International Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). We argue for a return to territorial based rules of jurisdiction. Such a …

The Cultural Property Claim Within The Same Sex Marriage Controversy, Marc R. Poirier

Marc R. Poirier

The Cultural Property Claim within the Same Sex Marriage Controversy.

Marc R. Poirier, Seton Hall University School of Law

This article argues that traditionalist opposition to same sex marriage can be understood as a cultural property claim -- the sort of claim that is often made by Native American tribes and other subordinated cultural groups of a right to control the uses of sacred or culturally central rituals, places and objects. Ultimately, it disagrees with the traditionalist position, and argues that traditionalists should not be allowed to maintain a property-like right to exclude same sex couples from marriage. Nevertheless, the …

The Intelligent Construction Of The Universe: A Mathematical Proof - The Link Among Science, Natural Law And Jurisprudence, Ashley Saunders Lipson

Ashley Saunders Lipson

A mathematical proof that the Universe was intelligently constructed. The paper forms the predicate for a new form of jurisprudence (Mathematical Determinism)linking science to Natural Law and morality.

License To Sue?, Lorelei Ritchie De Larena

Lorelei Ritchie de Larena

Courts, commentators and practitioners have for too long viewed intellectual property law as a discrete discipline, without putting it into the proper theoretical context of general jurisprudence. Intellectual property law cannot and must not exist on its own, outside the normative framework of overlapping legal institutions. Even within the rubric of intellectual property, courts have overlooked the potential for cross-applying relevant doctrines between patent, copyright, and trademark law. Certainly, when intellectual property disputes touch on other disciplines, such as civil procedure, contract, or tort law, courts have tended to overlook their synergies, focusing instead on only one of several important …

"Copynorms, Black Cultural Production And The Debate Over African-American Reparations, Kevin Greene

Kevin Greene

The cultural production of black artists has been central to American society, yet virtually ignored in intellectual property scholarship. This article exlpores how the historical appropriation of works of black authorship ties into the raging debate over black reparations, and contends that providing atonement and apology for cultural appropriation can provide not only redress for the great injustice of cultural appropriation, but can also help inculcate "copynorms" favoring the protection of intellectual property at time when copyright law faces enormous challegnes to its legitimacy.

Who Is Your Starting Pitcher? - Roger Clemens Or #22 On The Yankees?: Why Major League Basaeball Players Should Have Rights In Their Names. , Jason B. Baum

Jason B. Baum

The author examines how complex intellectual property issues affect fantasy baseball. Using CBC Distribution v. Major League Baseball, the author explores why the right of publicity should protect Major League Baseball players from the unauthorized use of Major League Baseball players' statistics in conjunction with their names.

Internet Packet Sniffing And Its Impact On The Balance Of Power , Robert M. Frieden

Rob Frieden

Internet Packet Sniffing and Its Impact on the Balance of Power Between Intellectual Property Creators and Consumers Rob Frieden Professor, Penn State University 102 Carnegie Building University Park, Pennsylvania 16802 (814) 863-7996; rmf5@psu.edu web site: http://www.personal.psu.edu/faculty/r/m/rmf5/ Previously Internet Service Providers (“ISPs”) had little incentive or technological capability to deviate from plain vanilla best efforts routing for content without examining the nature and type of traffic. Serving as a neutral conduit also provided the means to qualify for a safe harbor exemption from liability for carrying copyright infringing traffic provided by Section 512 of the Digital Millennium Copyright Act. Operators of …

The Twilight Of The Opera Pirates: A Prehistory Of The Exclusive Right Of Public Performance For Musical Compositions, Zvi S. Rosen

Zvi S Rosen

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America’s first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance …