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Articles 1 - 30 of 427
Full-Text Articles in Law
Slipping Through The Cracks: How Digital Music Streaming Cuts Corners On Artists’ Royalty Revenues Globally, Frances Lewis
Slipping Through The Cracks: How Digital Music Streaming Cuts Corners On Artists’ Royalty Revenues Globally, Frances Lewis
Brooklyn Journal of International Law
At a time when the digital distribution of music is dominating the music industry, there are more music consumers than ever. This makes it vitally important for performing artists to receive the credit they are due. An inherent problem in music’s digital distribution market is that music streaming companies often fail to acquire proper licenses to expand their music libraries faster than their competitors. Performing artists who may not have the same income stream as their A-list counterparts often cannot bear the cost of litigation to pursue uncredited royalties. The U.S. class action model provides performing artists with a legal …
Restructuring Intellectual Property Jurisdictions Post-Brexit: Strategic Considerations For The Eu And Britain, Alexandra George
Restructuring Intellectual Property Jurisdictions Post-Brexit: Strategic Considerations For The Eu And Britain, Alexandra George
Brooklyn Journal of International Law
Britain’s decision to “Brexit” from the European Union has caused great uncertainty and justified concern with respect to intellectual property laws and investments. Post-Brexit arrangements between the European Union and Britain have not yet been determined, and it is unclear whether these will be settled with respect to intellectual property law before Brexit is due to take effect in 2019. With intellectual property intensive industries accounting for 88 percent of EU imports and 90 percent of EU exports, British-EU intellectual property arrangements are the subject of intense interest worldwide as intellectual property owners and users speculate as to the likely …
"The Exclusive Right To Their Writings": Copyright And Control In The Digital Age, Jane C. Ginsburg
"The Exclusive Right To Their Writings": Copyright And Control In The Digital Age, Jane C. Ginsburg
Maine Law Review
The recent coincidence of new technology and new legislation in the United States may have enhanced the ability of U.S. copyright owners to wield electronic protective measures to control the exploitation of their works. The legislation, which reinforces the technology, has led many to perceive and to deplore a resulting imbalance between copyright owners and the copyright-using public. Critics assert that the goals of copyright law have never been, and should not now become, to grant “control” over works of authorship. Instead, copyright should accord certain limited rights over some kinds of exploitations. Economic incentives to create may be needed …
Freeing The Mind: Free Software And The Death Of Proprietary Culture, Eben Moglen
Freeing The Mind: Free Software And The Death Of Proprietary Culture, Eben Moglen
Maine Law Review
The subject matter we are going to talk about is variously named and the words have some resonances of importance. I am going to use the phrase “Free Software” to describe this material, and I am going to suggest to you that the choice of words is relevant. We are talking not merely about a form of production or a system of industrial relations, but also about the beginning of a social movement with specific political goals, which will characterize not only the production of software in the twenty-first century, but the production and distribution of culture generally.
Copyright Infringement In Sound Recording: How Courts And Legislatures Can Get In Vogue In A Post-Ciccone World, Kristen B. Kennedy
Copyright Infringement In Sound Recording: How Courts And Legislatures Can Get In Vogue In A Post-Ciccone World, Kristen B. Kennedy
Journal of Law and Policy
Music sampling is a legally complex and ambiguous area, with staggeringly high costs attached for copyright infringers. The legality of sampling frequently depends upon what jurisdiction the inquiry into the sampling takes place in, and has been guided by inconsistently applied doctrines of fair use, de minimis, and copyright infringement. The Ninth Circuit’s decision in VMG Salsoul v. Ciccone has dramatically highlighted these inconsistencies. This note suggests a four-part solution to resolve the tensions in copyrightable sound recordings magnified by the recent circuit split created by VMG Salsoul v. Ciccone. It incorporates elements of de minimis and fair use, a …
The Supreme People's Court's Annual Report On Intellectual Property Cases (2016) (China), Tianyi (Tammy) Wu, Xiaoyang Wang
The Supreme People's Court's Annual Report On Intellectual Property Cases (2016) (China), Tianyi (Tammy) Wu, Xiaoyang Wang
Washington International Law Journal
The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The Annual Report summarizes intellectual property cases, such as patent, trademark, copyright, trade secrets, and unfair competition cases. This 2016 Annual Report examines 27 cases and includes general guidelines for legal application. It reflects the Supreme People’s Court’s thoughts and approaches for ruling on new, difficult, and complex IP and competition cases.
Fashion Law: More Than Wigs, Gowns, And Intellectual Property, Mark K. Brewer
Fashion Law: More Than Wigs, Gowns, And Intellectual Property, Mark K. Brewer
San Diego Law Review
[T]his article frames the emerging field of fashion law and synthesizes its substance from an international perspective in order to raise the profile of fundamental areas in which the law and fashion intersect as well as identify key areas for future research. Part II examines the background on fashion law, initially focusing on its origins and then examining IP, traditionally the main area of the field. Additionally, the Article defines, frames, and justifies the emerging field of fashion law. Because an exhaustive analysis of the emerging trends in fashion law is beyond the scope of this Article, Part III only …
Safeguarding Washington's Trade Secrets: Protecting Businesses From Public Records Requests, John Delaney
Safeguarding Washington's Trade Secrets: Protecting Businesses From Public Records Requests, John Delaney
Washington Law Review
Lawmakers constantly balance competing interests. They decide where to draw lines so that societal goals are accomplished without ignoring the needs of those who will be affected by their choices. The Washington State Legislature is now in the process of addressing the line between government transparency and the protection of private companies’ trade secrets. Companies who provide technology to the federal government are susceptible to losing their trade secrets through a public records request. The Washington State Legislature is currently reviewing the trade secret exception to the Public Records Act to ensure it is continuing to protect companies from losing …
Background Note: Standard Essential Patents, Innovation And Competition: Challenges In India, Arpan Banerjee
Background Note: Standard Essential Patents, Innovation And Competition: Challenges In India, Arpan Banerjee
IP Theory
In September 2014, a few months after a landslide election victory, the Indian Prime Minister Narendra Modi announced the launch of “Make in India,” an ambitious program designed to turn India into a global manufacturing hub. One of the factors widely thought to be responsible for Modi’s victory was support from India’s “neo-middle class”—a young, newly- urbanized section of the electorate seeking employment and improved living standards but struggling amidst an economic downturn. In a speech inaugurating Make in India, Modi linked the program with the aspirations of this section of society. Modi stated the need to elevate the status …
Small Can Be Inventive: The Patentability Of Nanoscale Reproductions Of Macroscale Machines, Christopher Anderson
Small Can Be Inventive: The Patentability Of Nanoscale Reproductions Of Macroscale Machines, Christopher Anderson
William & Mary Business Law Review
Nanotechnology is a thriving new field of research. If even a fraction of the excitement surrounding the field proves to be true, there will be profound benefits in many aspects of our lives. Crucial to its development, however, will be the treatment of nanotechnology with respect to patents. This field has the unique potential to replicate existing machines and devices at a billionth of their size. In light of rulings that “mere scaling” of prior inventions does not create a patentable invention, problems with patentability might arise. This Note tackles this issue, considering the patentability requirements of novelty and non-obviousness, …
Rethinking Ucita: Lessons From The Open Source Movement, Matthew D. Stein
Rethinking Ucita: Lessons From The Open Source Movement, Matthew D. Stein
Maine Law Review
For those within the information technology (IT) industry, the phrase “open source” has been as prominent at water cooler and boardroom discussions over the last several years as the phrase “out source.” Open source is at once a software development model, a business model, a social movement, and a philosophy that has recently garnered attention from outside of the IT sphere. As such, the topic has become increasingly fertile ground for academic scholarship from several disciplines. Economists, legal academics and practitioners, computer engineers, and social commentators have offered their varying perspectives on open source software. Whether or not this attention …
New Wine, Old Wineskins: Application Of Intellectual Property Law To Web-Based Activity, Katherine G. Grincewich, Esq.
New Wine, Old Wineskins: Application Of Intellectual Property Law To Web-Based Activity, Katherine G. Grincewich, Esq.
The Catholic Lawyer
No abstract provided.
Common Copyright Calamities, G. Franklin Rothwell, Esq.
Common Copyright Calamities, G. Franklin Rothwell, Esq.
The Catholic Lawyer
No abstract provided.
At&T V. Microsoft: Is This A Case Of Deepsouth Déjà Vu?, Christopher R. Rogers
At&T V. Microsoft: Is This A Case Of Deepsouth Déjà Vu?, Christopher R. Rogers
Maine Law Review
It has been stated many times by various courts that the patent laws of the United States do not reach beyond the borders of the United States. In an age of expanding world commerce, the territorial reach of our patent laws has sometimes made it difficult for U.S. inventors to meaningfully protect their intellectual property. For example, the Supreme Court holding in Deepsouth Packing Co. v. Laitram Corp. opened up a loophole that allowed unlicensed U.S. manufacturers to essentially export patented inventions, thereby trampling on the patent rights of U.S. patent holders selling to foreign markets. The Deepsouth loophole has …
Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn
Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn
Maine Law Review
The Copyright Act establishes protection for original, creative works of authorship as a means of providing ex ante incentives for creativity. But how real is that protection? Imagine that you have written a script and managed to have your play produced in a local community theater. A few years later, you find that a major Hollywood studio has taken your script, adapted it slightly, and made it into the next summer blockbuster, raking in millions without ever obtaining a license from you. Of course, you can sue them for infringement. But how much will that litigation cost and what are …
Rembrandts In The Research Lab: Why Universities Should Take A Lesson From Big Business To Increase Innovation, Kristen Osenga
Rembrandts In The Research Lab: Why Universities Should Take A Lesson From Big Business To Increase Innovation, Kristen Osenga
Maine Law Review
Universities are typically considered to have two complementary goals: providing education and performing research. While the determination of which objective deserves primacy has long been debated and is not within the scope of this paper, it is indisputable that productive research serves to further a university's goal of education, both directly by adding to the body of knowledge to be dispensed to the students and indirectly by increasing the university's prestige, thereby attracting lucrative grants, quality students, and competitive faculty members to the university. It is, at the very least, safe to say that research is the heart of the …
Open Source Approaches In Biotechnology: Utopia Revisited, Yann Joly
Open Source Approaches In Biotechnology: Utopia Revisited, Yann Joly
Maine Law Review
Tracing its origin to Greek antiquity, intellectual property has become an institution in modern legal systems worldwide. This growing importance of intellectual property was confirmed with the 1994 adoption of the Trade-Related Aspects of Intellectual Property Rights Agreement by the World Trade Organization (WTO), which harmonized the rules of intellectual property amongst the various members of the international community on the model of developed countries. However enshrined in the legal tradition, intellectual property law has also had its share of detractors and has recently come under severe criticism. The exercise of intellectual property rights in such diverse fields of creation …
Road Map To Revolution? Patent-Based Open Science, Lee Petherbridge
Road Map To Revolution? Patent-Based Open Science, Lee Petherbridge
Maine Law Review
The contemporary approach to innovation in the life sciences relies on a patent-based proprietary model. Limitations on patent rights and business concerns often focus innovation to markets where the near-term monetary rewards are highest. This is “efficient” under an austere understanding of the term, but the proprietary model can be problematic from a practical perspective because it may not focus innovation to certain deserving markets. This Article contends that the property rights conferred by patent law may still serve as a positive base for innovation directed to underserved markets. The comparatively strong rights conferred by patent law provide upstream or …
A Virtue-Centered Approach To The Biotechnology Commons (Or, The Virtuous Penguin), David W. Opderbeck
A Virtue-Centered Approach To The Biotechnology Commons (Or, The Virtuous Penguin), David W. Opderbeck
Maine Law Review
The instrumentalist emphasis of the current biotechnology intellectual property rights (IPR) debate is not surprising. In the American tradition, intellectual property law has long been justified primarily by instrumentalist concerns. Thomas Jefferson famously acceded to the “embarrassment of patent and copyright monopolies because he believed a limited monopoly would encourage the production of new scholarship and inventions. The framers' willingness to allow this embarrassment for the greater good is enshrined in the Intellectual Property Clause of the U.S. Constitution. Countless judicial opinions refer to intellectual property law as a tool that provides necessary incentives to creators and innovators. Intellectual property …
The Experimental Use Exception To Patent Infringement: Do Universities Deserve Special Treatment?, Elizabeth A. Rowe
The Experimental Use Exception To Patent Infringement: Do Universities Deserve Special Treatment?, Elizabeth A. Rowe
Maine Law Review
Inventor Ivan owns a patent on a new Gizmo. He has spent a substantial portion of his time and resources to develop the Gizmo. He has also spent thousands of dollars on his patent attorneys to obtain the patent. Ivan had to wait over two years for the patent application to be processed and approved. But it was all worth it. Our patent laws grant Ivan a negative right-the right to exclude others from practicing his invention during the period of the patent. The local university is using Ivan's invention to further its own research. The university's research will allow …
Adoption Of The Bayh-Dolye Act In Developed Countries: Added Presure For A Broad Research Exemption In The United States?, Michael S. Mireles
Adoption Of The Bayh-Dolye Act In Developed Countries: Added Presure For A Broad Research Exemption In The United States?, Michael S. Mireles
Maine Law Review
Numerous developed countries, most if not all members of the Organization of Economic Cooperation and Development (OECD), including Japan, France, the United Kingdom, Germany, Austria, Denmark, Norway, Portugal, Spain, and Finland, have or are considering adopting legislation similar to the Bayh-Dole Act. These countries apparently believe that passage of legislation similar to the Bayh-Dole Act will lead to the transfer of government funded research results from the university laboratory to the marketplace and other economic activity. In the United States, the birthplace of the Bayh-Dole Act (the Act), it is not entirely clear whether its passage is the direct result …
Ex Parte Seizures Under The Dtsa And The Shift Of Ip Rights Enforcement, Yvette Joy Liebesman
Ex Parte Seizures Under The Dtsa And The Shift Of Ip Rights Enforcement, Yvette Joy Liebesman
The Business, Entrepreneurship & Tax Law Review
The ex parte seizure provision of the Defend Trade Secrets Act is another step in a long line of legislation that shifts the costs of private enforcement to the public, which already has a toehold in copyright and trademark law. The ex parte provision—which is not incorporated into any state trade secret law—relieves rights owners of two “burdens.” First, it relieves the trade secret owner of the burden of actually having to compete in the marketplace. Second, it relieves the trade secret owner of the burden of the costs associated with the discovery process of a lawsuit. The effect of …
Paypal Is New Money: Extending Secondary Copyright Liability Safe Harbors To Online Payment Processors, Erika Douglas
Paypal Is New Money: Extending Secondary Copyright Liability Safe Harbors To Online Payment Processors, Erika Douglas
Michigan Telecommunications & Technology Law Review
The Digital Millennium Copyright Act (DMCA) has shaped the Internet as we know it. This legislation shields online service providers from secondary copyright infringement liability in exchange for takedown of infringing content of their users. Yet online payment processors, the backbone of $300 billion in U.S. e-commerce, are completely outside of the DMCA’s protection. This Article uses PayPal, the most popular online payment company in the U.S., to illustrate the growing risk of secondary liability for payment processors. First it looks at jurisprudence that expands secondary copyright liability online, and explains how it might be applied to PayPal. Then it …
Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer
Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer
Notre Dame Law Review
Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply …
(Un)Common Law Protection Of Certification Marks, Michelle B. Smit
(Un)Common Law Protection Of Certification Marks, Michelle B. Smit
Notre Dame Law Review
Part I of this Note defines and examines the general principles of certification marks. From that foundation, Part II provides an overview of the case law on unregistered common law certification marks. Part III analyzes the reasons why abuses of certification marks would increase under a commonlaw regime and posits that certification marks, therefore, should only exist under federal law. Finally, Part IV proposes several adjustments that should be made to the current certification mark registration system in order to address existing shortcomings that affect both consumers and third-party businesses.
Honest Copying Practices, Joseph P. Fishman
Honest Copying Practices, Joseph P. Fishman
Notre Dame Law Review
One of intellectual property theory’s operating assumptions is that creating is hard while copying is easy. But it is not always so. Copies, though outwardly identical, can come from different processes, from cheap digital duplication to laborious handmade re-creation. Policymakers around the world face a choice whether such distinctions should affect liability. The two branches of intellectual property that condition liability on actual copying, copyright and trade secrecy, give different answers. Both in the United States and elsewhere, trade secrecy regimes distinguish between copying methods deemed illegitimate and those deemed legitimate, what international treaties call “honest commercial practices.” Copyright regimes, …
Symposium Keynote: The Dtsa And The New Secrecy Ecology, Orly Lobel
Symposium Keynote: The Dtsa And The New Secrecy Ecology, Orly Lobel
The Business, Entrepreneurship & Tax Law Review
The Defend Trade Secrets Act (“DTSA”), which passed in May 2016, amends the Economic Espionage Act (“EEA”), a 1996 federal statute that criminalizes trade secret misappropriation. The EEA has been amended several times in the past five years to increase penalties for violations and expand the available causes of action, the definition of a trade secret, and the types behaviors that are deemed illegal. The creation of a federal civil cause of action is a further expansion of the secrecy ecology, and the DTSA includes several provisions that broaden the reach of trade secrets and their protection. This article raises …
Recalibrating Patent Venue, Colleen V. Chien, Michael Risch
Recalibrating Patent Venue, Colleen V. Chien, Michael Risch
Maryland Law Review
For most of patent law’s 200-plus year history, patent holders could sue only in the district inhabited by the defendant. In 1990, the United States Court of Appeals for the Federal Circuit decided that the scope of permissible venue extended to all districts with personal jurisdiction over the defendant. In recent years, patentees have flocked to certain districts, fueling the widespread perception that patentees, particularly those that do not practice their patents, called non-practicing entities (“NPEs”), are abusing forum. Responsive to these concerns, Congress and the courts have moved to reinstate a more restrictive rule, culminating in the Supreme Court’s …
“You Must Construct Additional Pylons”: Building A Better Framework For Esports Governance, Laura L. Chao
“You Must Construct Additional Pylons”: Building A Better Framework For Esports Governance, Laura L. Chao
Fordham Law Review
The popularity of “esports,” also known as “electronic sports” or competitive video gaming, has exploded in recent years and captured the attention of cord-cutting millennials—often to the detriment of sports such as basketball, football, baseball, and hockey. In the United States, the commercial dominance of such traditional sports stems from decades of regulatory support. Consequently, while esports regulation is likely to emulate many aspects of traditional sports governance, the esports industry is fraught with challenges that inhibit sophisticated ownership and capital investment. Domestic regulation is complicated by underlying intellectual property ownership and ancillary considerations such as fluctuations in a video …
Wild Westworld: Section 230 Of The Cda And Social Networks’ Use Of Machine-Learning Algorithms, Catherine Tremble
Wild Westworld: Section 230 Of The Cda And Social Networks’ Use Of Machine-Learning Algorithms, Catherine Tremble
Fordham Law Review
This Note argues that Facebook’s services—specifically the personalization of content through machine-learning algorithms—constitute the “development” of content and as such do not qualify for § 230 immunity. This Note analyzes the evolution of § 230 jurisprudence to help inform the development of a revised framework. This framework is guided by congressional and public policy goals and creates brighter lines for technological immunity. It tailors immunity to account for user data mined by ISPs and the pervasive effect that the use of that data has on users—two issues that courts have yet to confront. This Note concludes that under the revised …