Intellectual Property Law Commons^™

The Intent Element Of Inducement To Infringe Under Patent Law: Reflections On Grokster, Lynda J. Oswald

Michigan Telecommunications & Technology Law Review

In June, 2005, the United States Supreme Court set forth an "inducement" rule in MGM Studios, Inc. v. Grokster, Ltd. that imposes secondary liability on "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement." The Court emphasized the limitations of the liability standard it was setting forth, stating that the target was only "purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise." Yet, the liability standard set forth in Grokster …

Trends In Protection For Informational Works Under Copyright Law During The 19th And 20th Centuries, Miriam Bitton

Michigan Telecommunications & Technology Law Review

The debate over databases protection has failed to identify and discuss some of its most basic and preliminary assumptions, accepting instead many of the historical aspects involved as given. This Article therefore seeks to challenge these underlying assumptions by providing a fresh look at the historical dimension of the debate. One common argument regarding database protection is that the U.S. Supreme Court decision in Feist v. Rural Publications Inc. brought about a dramatic change in the legal landscape, displacing the then-accepted "sweat of the brow" rationale for protecting rights in databases. This Article's historical analysis therefore thoroughly examines the treatment …

Pathological Patenting: The Pto As Cause Or Cure, Rochelle Dreyfuss

Michigan Law Review

The Patent Act was last revised in 1952. The hydrogen bomb was exploded that year, vividly demonstrating the power of the nucleus; in the ensuing postwar period, the Next Big Thing was clearly the molecule. Novel compounds were synthesized in the hopes of finding new medicines; solid-state devices exploited the special characteristics of germanium and other semiconductors; as investments in polymer chemistry soared, advice to the college graduate soon boiled down to "one word ... just one word[:] ... Plastics." Over the next half-century, things changed dramatically. "Better living through chemistry" has begun to sound dated (if not sinister). Genomics …

The Trademark Dilution Revision Act Of 2006: A Welcome—And Needed—Change, Dale M. Cendali, Bonnie L. Schriefer

Michigan Law Review First Impressions

Some have argued that the changes to the Federal Trademark Dilution Act (the “FTDA”) embodied in the recently enacted Trademark Dilution Revision Act of 2006 (the “TDRA”) threaten to infringe upon the right to free speech. This is simply not the case. The FTDA has always protected First Amendment rights, and the TDRA clarifies and strengthens those protections. While the concept of dilution was introduced in 1927, there was no federal dilution law in the United States until 1995, when Congress passed the FTDA. Since then, various federal courts have reached different conclusions regarding issues such as: (1) what constituted …

The Dilution Solution: Populating The Trademark A-List, Scott C. Wilcox

Michigan Law Review First Impressions

In our celebrity-conscious culture, the media serve as arbiters of fame. The editors of Us Weekly and People wield significant influence over public recognition of celebrities. Since the Federal Trademark Dilution Act (“FTDA”) amended the Lanham Act in 1995, federal courts have adopted similar roles as arbiters of fame, determining which trademarks are sufficiently famous to receive federal protection against dilution. Recent changes to the Lanham Act, however, reserve the availability of dilution actions to “A-list” marks. These changes fulfill the objectives of trademark law while achieving Congress’s intent in enacting the FTDA.

What Is Dilution, Anyway?, Stacey L. Dogan

Michigan Law Review First Impressions

Ever since the Supreme Court decided Moseley v. V Secret Catalogue, Inc. in 2003, an amendment to the Federal Trademark Dilution Act (“FTDA”) has appeared inevitable. Congress almost certainly meant to adopt a “likelihood of dilution” standard in the original statute, and the 2006 revisions correct its sloppy drafting. Substituting a “likelihood of dilution” standard for “actual dilution,” however, does not resolve a deeper philosophical question that has always lurked in the dilution debate: what is dilution, and how does one prove or disprove its probability? The statutory definition notwithstanding, this issue remains largely unanswered, leaving the courts with the …

War And Peace: The 34th Annual Donald C. Brace Lecture, Jessica D. Litman

Other Publications

I'd like to thank the Copyright Society and the Brace committee for inviting me to speak to you this evening. I am honored that you invited me to give this lecture. I want to talk a little bit about war - copyright war - and then I want to talk a little bit about peace. It's become conventional that we're in the middle of a copyright war.' I tried to track down who started calling it that, and what I can tell you is that about ten years ago, about the time that copyright lawyers everywhere were arguing about the …

Dilution's (Still) Uncertain Future, Graeme B. Dinwoodie, Mark D. Janis

Michigan Law Review First Impressions

Dilution looked to be a potent weapon when Congress introduced it as § 43(c) of the Lanham Act in 1995. Indeed, some observers feared that it would be too potent (and in some contexts, such as cybersquatting, it successfully augmented traditional causes of action). But a series of court decisions, culminating in the Supreme Court’s 2003 Moseley v. V Secret Catalogue opinion, weakened dilution protection so profoundly that what remained wasn’t of much consequence. Congress has recently sought to breathe new life into dilution law, enacting the Trademark Dilution Revision Act of 2006 (“TDRA”). Some might see this as a …

Digital Copyright, Jessica D. Litman

Books

In 1998, copyright lobbyists succeeded in persuading Congress to enact laws greatly expanding copyright owners' control over individuals' private uses of their works. The efforts to enforce these new rights have resulted in highly publicized legal battles between established media and new upstarts.

In this book, law professor Jessica Litman questions whether copyright laws crafted by lawyers and their lobbyists really make sense for the vast majority of us. Should every interaction between ordinary consumers and copyright-protected works be restricted by law? Is it practical to enforce such laws, or expect consumers to obey them? What are the effects of …