Intellectual Property Law Commons^™

Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy

Indiana Law Journal

Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way …

Measuring Trademark Dilution By Tarnishment, Suneal Bedi, David Reibstein

Indiana Law Journal

The law of trademark tarnishment—a type of trademark dilution—is in disarray. The

basic definition is deceptively simple. Trademark tarnishment occurs when a junior

mark harms the reputation of a substantially similar existing senior trademark by

associating itself with something perverse or deviant. However, it turns out that

Congress and the courts disagree over the prima facie evidence necessary to prove

its existence. The problem is that federal law and related legal principles are simply

ill-equipped to adequately analyze this unique market-driven doctrine. To make

matters worse, legal scholars cannot even agree on whether trademark tarnishment

can empirically exist in the …

Learning From Copyright's Failure To Build Its Future, Ken Burleson

Indiana Law Journal

Since file sharing emerged in the late 1990s, copyright infringement has been widespread and virtually impervious to legal sanctions. Despite the best efforts of industry representatives and the lawmakers acting at their behest, attempts to scare and shame copyright infringers into compliance with the law have fallen flat. Part I of this Note discusses the ongoing conflict between modern copyright law and socially acceptable behavior, specifically copyright infringement through digital means. Part II explores the various attempts, and subsequent failures, to curb infringement through deterrence measures. Part III explains why deterrence has been ineffective by exploring psychological models of law-abiding …

A New Approach To Digital Reader Privacy; State Regulations And Their Protection Of Digital Book Data, Andrew A. Proia

Indiana Law Journal

No abstract provided.

Copytraps, Ned Snow

Indiana Law Journal

Congress has unintentionally evoked copytraps, which exact thousands of dollars from the Internet user who innocently buys music without knowing that it infringes copyright. Copytraps arise when Web sites lure innocent users into downloading expression that seems legal but is actually infringing. Regardless of whether the Web site appears legitimate, whether a user's good-faith belief is reasonable, or whether the Web site owner is unaware that the material is infringing, users who download infringing material face strict liability punishment, and the penalties are severe. It is entrapment, with the spoils from the innocent going to large corporate copyright holders. The …

A Technological Theory Of The Arms Race, Lee Kovarsky

Indiana Law Journal

Although the "technological arms race" has recently emerged as a vogue-ish piece of legal terminology, scholarship has quite conspicuously failed to explore the phenomenon systematically. What are "technological" arms races? Why do they happen? Does the recent spike in scholarly attention actually reflect their novelty? Are they always inefficient? How do they differ from military ones? What role can legal institutions play in slowing them down?

In this Article I seek to answer these questions. I argue that copyright enforcement and self-help represent substitutable tactics for regulating access to expressive assets, and that the efficacy of each tactic depends on …

Fixation On Fixation: Why Imposing Old Copyright Law On New Technology Will Not Work, Douglas J. Mason

Indiana Law Journal

No abstract provided.

Bent Fish: Issues Of Ownership And Infringement In Digitally Processed Images, John Gastineau

Indiana Law Journal

No abstract provided.