Law Commons^™

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Notre Dame Law Review

The concept of rivalry is central to modern accounts of property. When one per-son’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all. This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that frame-work, it argues that rivalry should …

“Improve Your Privileges While They Stay”: A Guide To Improve The Privileges Of U.S. Citizenship For Everybody, Joshua J. Schroeder

Touro Law Review

In 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men …

Pembaharuan Hukum Atas Hak Cipta Di Indonesia, Lucky Adhandani

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Copyright in this era of globalization is an important commodity for international trade, but violation in copyright in Indonesia still very high, for the good legal guarantees for copyright holders and related rights holders, this legal reform is a matter the important thing is to be able to explain legal reform, The author in this case takes a review of sociological jurisprudence as a basis for researching legal reform. With interdisciplinary research methods, the sociological jurisprudence sees law not merely as a normative phenomenon but at the same time normative and sociological phenomena, because the reality of law in society …

Check Your Bank Account First: Examining Copyright Formalities And Remedies Through A Race Conscious Lens, Emma Burri

Washington and Lee Journal of Civil Rights and Social Justice

This Note examines copyright formalities through a race conscious lens and concludes that further change is necessary given the legacy of economic inequality that communities of color experience. It examines the history of copyright formalities in the United States and the disenfranchisement of Black musical creators through the theft of their intellectual property. In exploring the relationship between race, wealth, and musical copyright protection this Note explains why considering the economic inequality is relevant to ensure copyright protection for Black creators. This Note proposes abolishing the registration timeline for certain remedies and altering the filing fee structure of the copyright …

The Social Value Of Intellectual Property, Alina Ng

Journal Articles

The focus of this paper is not on how intellectual property owners can misuse intellectual property rights in harmful ways in society. Much has already been written about that topic. Instead, this paper is about how to encourage intellectual property owners, especially corporate owners, to make decisions and implement strategies about their intellectual property rights that are socially valuable and positively impactful. This paper argues that if corporate and business owners of intellectual property understand the role that their intellectual property rights can have in creating a positive social impact, the influence that they can have in the market as …

Color Of Creatorship - Author's Response, Anjali Vats

Articles

This essay is the author's response to three reviews of The Color of Creatorship written by notable intellectual property scholars and published in the IP Law Book Review.

Intellectual Property And Tabletop Games, Christopher B. Seaman, Thuan Tran

Scholarly Articles

There is a rich body of literature regarding intellectual property’s (“IP”) “negative spaces”—fields where creation and innovation thrive without significant formal protection from IP law. Scholars have written about innovation in diverse fields despite weak or nonexistent IP rights, such as fashion design, fine cuisine, stand-up comedy, magic tricks, tattoos, and sports plays. Instead, these fields rely on social norms, first- mover advantage, and other (non-IP) legal regimes to promote innovation in the absence of IP protection.

As a comparison to these studies, this Article comprehensively analyzes the role of IP law in facilitating innovation in tabletop gaming, including board …

Instagram Issues: Why Professional Sports Leagues Need To Reconsider How Photography And Copyrights Are Governed, Anthony Studnicka

DePaul Journal of Sports Law

Playing sports is not the only way professional athletes generate income. In recent years, athletes have taken a deliberate approach towards building their personal brands to increase the value of their potential marketing and endorsement opportunities. The more known, liked, and marketable an athlete is, the greater their income potential.

Athletes can increase their marketability by eliciting and creating positive interactions with fans on social media. For example, when LeBron James decides to take to Instagram and post a photograph, many fans will view it and it will garner significant engagement. However, can LeBron post whatever image of himself he …

Use Of Artificial Intelligence To Determine Copyright Liability For Musical Works, Shine Sean Tu

West Virginia Law Review

This article explores the use of Artificial Intelligence to help define the existing test for copyright infringement for musical works. Currently, the test for copyright infringement requires the jury or a judge to determine whether the parties' works are "substantially similar" to each other from the vantage point of the "ordinary observer." This "substantial similarity" test has been criticized at almost every level due to its inconsistent nature. Artificial Intelligence has evolved to the point where it can be used as a tool to resolve many of the current issues associated with the "substantial similarity" test when it comes to …

Legal Principles Of Acts Resulting From Patent Rights A Comparative Study Of Uae, Jordanian And French Legal Systems, Nouri Hamad Khater

UAEU Law Journal

Patent rights occupy an eminent position within the intellectual copyrights in general, and the industrial copyrights, in particular. Admitting patent rights resulted in several significant impacts at the legal and economic levels alike. Thus, patent legislations have closely focused on that issue. Among the most important impacts of such an issue are the articles governing the acts based on patent rights. Legislations have identified the basic legal principles governing these acts. Therefore, we find it highly essential to discuss these legislations, explain their principles and compare such basic principles to the general principles of legal acts. This study is based …

Artificial Intelligence And Moral Rights, Martin Miernicki, Irene (Huang Ying) Ng

Centre for AI & Data Governance

Whether copyrights should exist in content generated by an artificial intelligence is a frequently discussed issue in the legal literature. Most of the discussion focuses on economic rights, whereas the relationship of artificial intelligence and moral rights remains relatively obscure. However, as moral rights traditionally aim at protecting the author’s “personal sphere”, the question whether the law should recognize such protection in the content produced by machines is pressing; this is especially true considering that artificial intelligence is continuously further developed and increasingly hard to comprehend for human beings. This paper first provides the background on the protection of moral …

Infinite Setlist: Analyzing Pioneer Dj’S Catalogue Streaming Partnerships With Beatport And Soundcloud, Nicholas Rivera

Cybaris®

The purpose of this paper is to examine the partnerships Rekordbox has with SoundCloud and Beatport, determine if user agreements of each platform legally allow the partnerships to occur, what the implications are of using the music streaming service for live performances at venues, what the implications are of streaming music for live streamed performances via the internet, satellite radio, and terrestrial radio, and determine which types of copyright royalties need to be paid to who and by whom.

Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern

Faculty Publications

A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could …

A Serendipitous Experiment In Percolation Of Intellectual Property Doctrine, Daniel R. Cahoy, Lynda J. Oswald

Indiana Law Journal

This Article fills a gap in the literature by providing novel and unique empirical evidence of the impact of percolated intellectual property doctrine versus the impact of isolated doctrine from a specialized court. It relies on the U.S. Supreme Court’s paired decisions in 2014 in Octane Fitness, LLC v. ICON Health & Fitness, Inc.15 and Highmark, Inc. v. Allcare Health Management Systems, Inc.16 to highlight a natural forum for evaluating the effects of percolation on federal legal doctrine. At issue in those cases was the fee-shifting language of Section 285 of the Patent Act: “The court in exceptional cases may …

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

James Y. Stern

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …

Forum On Attorney's Fees In Copyright Cases: Are We Running Through The Jungle Now Or Is The Old Man Still Stuck Down The Road?, Paul Marcus, David Nimmer

Paul Marcus

No abstract provided.

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …

Navigating Sino-American Business Relationships, Ryan Stenquist

Marriott Student Review

Relationships between American and Chinese companies have never been more important or profitable as they are now. With linguistic, moral, governmental, and legal systems developed entirely independent of each other for thousands of years, these relationships also prove the most difficult and complex to navigate. This article explores mistakes foreigners often make while doing business in China, the current environment and culture of joint ventures with native Chinese, and how to succeed in the challenging yet rewarding economy now opening up to the world.

Patents For Sharing, Toshiko Takenaka

Michigan Technology Law Review

Spurred by the Internet, emerging technologies have changed the way commercial firms innovate and have made it possible for individuals to play an important role in that innovation. Producers in the Information Communication Technologies (ICT), and other sectors dealing with complex technologies with many separately patentable components, find it increasingly difficult to make products without infringing on patents held by others. Numerous overlapping patents often cover such products. Producers have developed a new way to use patents: as inclusive rights for sharing their technologies with others through cross-licensing and other private ordering arrangements in order to ensure the freedom to …

Internet Of Infringing Things: The Effect Of Computer Interface Copyrights On Technology Standards, Charles Duan

Articles in Law Reviews & Other Academic Journals

You connect to the Internet via your Wi-Fi access point. You surf the Web using a browser and send emails through your email server. You probably use some USB peripherals-say a mouse, keyboard, or printer. Maybe you even watch cable or broadcast television.

Under current case law, each of those computer systems and devices may very well be copyright-infringing contraband. This is through no fault of your own-you need not be pirating music or streaming illegal movies to infringe a copyright. The infringement simply exists, hard-wired within each of those devices and many more that you use, a result of …

Scènes À Faire In Music: How An Old Defense Is Maturing, And How It Can Be Improved, Torrean Edwards

Marquette Intellectual Property Law Review

First, this Comment will provide background on the test for copyright infringement used by the Fourth, Eighth, and Ninth Circuits. Second, the Comment will address what scènes à faire is and how recent cases have treated scènes à faire in music. Third and finally, the Comment will offer a suggestion as to a proper scènes à faire determination and analyze how scènes à faire should be applied.

Questions Of Trust, Betrayal, And Authorial Control In The Avant-Garde: The Case Of Julius Eastman And John Cage, Toni Lester

Marquette Intellectual Property Law Review

This article explores how the idea of trust-based dialogue can give us an alternative understanding about the nature of authorial control and inter-pretation across identity-based differences. Part One will discuss the respective personal stories, philosophies, and competing historical understandings that influenced Cage’s creation of Solo and Eastman’s interpretation thereof. Part Two will offer definitions of trust and communication from the fields of feminist relational psychology, philosophy, and law. Throughout Part Two, I will reflect on the extent to which a trust-based dialogue could have taken place between Cage and Eastman. My general sense is that the answer is “no.” Both …

Similar Secrets, Joseph P. Fishman, Deepa Varadarajan

Vanderbilt Law School Faculty Publications

A foundational question in every dispute over intellectual property is whether the defendant’s product is too similar to the plaintiff ’s. For almost all intellectual property regimes, an extensive body of case law and academic commentary has examined how such similarity should be measured. Trade secrecy, however, remains a remarkable exception. In trade secrecy cases, just as in other intellectual property cases, the defendant’s good or method can diverge markedly from what the plaintiff developed. Yet it turns out that trade secret case law provides little guidance for assessing how much similarity is too much. The standard remains, fittingly but …

Innovators Beat The Climate Change Heat With Humanitarian Licensing And Patent Pools, Andrea Nocito

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Joutsing At Windmills: Cervantes And The Quixotic Fight For Authorial Control, H. Parkman Biggs

Marquette Intellectual Property Law Review

Achieving the appropriate balance between the right of first authors to control the later use of their work and freedom for follow-on authors to further develop from that text has long been challenging. Currently, under United States law in particular, fair use stands as a nebulous to buffer between the two creative camps, granting a significantly limited right to the second author to work from the first authors’ text. While that tension excites its own debate, a less considered aspect of this tension involves the degree to which the first author might be creatively and productively affected by the follow-on …

Congress Does Not Hide Elephants In Mouse-Holes: How Vimeo Paid No Heed To That Caution, Mitch Bailey

Marquette Intellectual Property Law Review

With the passage of the 1976 Copyright Act, sound recordings fixed prior to February 15, 1972 remained under the protection of the state copyright laws where the works were registered. Some incredible culturally significant songs were fixed before February 15, 1972, including songs from “The Beatles, The Supremes, Elvis Presley, Aretha Franklin, Barbara Streisand, and Marvin Gaye.” To date, state law protects the owner’s rights without interference from federal law, including the Digital Millennium Copyright Act (“DMCA”).

Given its location, the Second Circuit significantly influenced the development of intellectual property law in the United States, especially copyright law. Many businesses …

Intellectual Property And The Prisoner’S Dilemma: A Game Theory Justification Of Copyrights, Patents, And Trade Secrets, Adam D. Moore

Fordham Intellectual Property, Media and Entertainment Law Journal

In this article, I will offer an argument for the protection of intellectual property based on individual self-interest and prudence. In large part, this argument will parallel considerations that arise in a prisoner’s dilemma game. In brief, allowing content to be unprotected in terms of free access leads to a sub-optimal outcome where creation and innovation are suppressed. Adopting the institutions of copyright, patent, and trade secret is one way to avoid these sub-optimal results.

Balancing Open Source Paradigms And Traditional Intellectual Property Models To Optimize Innovation, Lisa M. Mandrusiak

Maine Law Review

Copyrights and patents grant property rights to creators and inventors in order to spur further innovation through the dual approach of increasing the amount of material in the public domain and rewarding inventors and creators for their efforts. However, in recent years, it has been postulated that extensive granting of copyrights and patents may in fact stifle additional creation and development. This led to a revolt in the computer programming industry and spawned the open source movement, which provides software with its source code and a license allowing for free creation and distribution of works. This movement attempts to spur …

The Nature Of Sequential Innovation, Christopher Buccafusco, Stefan Bechtold, Christopher Jon Sprigman

William & Mary Law Review

When creators and innovators take up a new task, they face a world of existing creative works, inventions, and ideas, some of which are governed by intellectual property (IP) rights. This presents a choice: Should the creator pay to license those rights? Or, alternatively, should the creator undertake to innovate around them? Our Article formulates this “build on/build around decision” as the fundamental feature of sequential creativity, and it maps a number of factors—some legal, some contextual—that affect how creators are likely to decide between building on existing IP or building around it. Importantly, creators are influenced by more than …

Wisconsin Patent Acquisition In The Final Frontier: Creating A Void, Nicholas J. Thibodeau

Marquette Intellectual Property Law Review

In early 2006, the Wisconsin Legislature passed 2005 Wisconsin Act 335, creating the Wisconsin Aerospace Authority (WAA). Unique to this particular act is the enumeration of the power to acquire intellectual property by the WAA. While granting them the power to acquire intellectual property is not unique, there is an interesting problem with that acquisition: the Act does not conform to the Parker Doctrine, and thus allows the WAA to be subject to antitrust litigation in its intellectual property acquisition under the proper circumstances. Specifically, the Act allows the WAA to enter into exclusive contracts that allow the WAA to …