Intellectual Property Law Commons^™

Understanding Rights Reversion: When, Why, & How To Regain Copyright And Make Your Book More Available, Nicole Cabrera, Jordyn Ostroff, Brianna Schofield

Copyright, Fair Use, Scholarly Communication, etc.

Are you an author who would like to increase your book’s availability? Have you already entered into a publishing agreement for your book? If you answered “yes” to both of these questions, then read on! This guide addresses the needs of authors who wish to make their works available to a wider audience in ways that may be prohibited by the terms of their existing publishing agreements.

For example, this guide will help authors who want to do things like: • Bring their out-of-print books back into print • Publish digital versions of their books • Make their books openly …

The Oligopoly Of Academic Publishers In The Digital Era, Vincent Larivière, Stefanie Haustein, Philippe Mongeon

Copyright, Fair Use, Scholarly Communication, etc.

The consolidation of the scientific publishing industry has been the topic of much debate within and outside the scientific community, especially in relation to major publishers’ high profit margins. However, the share of scientific output published in the journals of these major publishers, as well as its evolution over time and across various disciplines, has not yet been analyzed. This paper provides such analysis, based on 45 million documents indexed in the Web of Science over the period 1973-2013. It shows that in both natural and medical sciences (NMS) and social sciences and humanities (SSH), Reed-Elsevier, Wiley Blackwell, Springer, and …

Framing The Question, "Who Governs The Internet?", Robert J. Domanski

Publications and Research

There remains a widespread perception among both the public and elements of academia that the Internet is “ungovernable”. However, this idea, as well as the notion that the Internet has become some type of cyber-libertarian utopia, is wholly inaccurate. Governments may certainly encounter tremendous difficulty in attempting to regulate the Internet, but numerous types of authority have nevertheless become pervasive. So who, then, governs the Internet? This book will contend that the Internet is, in fact, being governed, that it is being governed by specific and identifiable networks of policy actors, and that an argument can be made as to …

Copyright And Free Expression In China’S Film Industry, Eric Priest

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article analyzes whether copyright, which creates private rights in original expression and is therefore a legal tool for restricting the dissemination of information, exacerbates or undercuts state censorship in China’s film industry. Recent scholarship suggests that copyright law reinforces China’s oppressive censorship regime because both copyright and state censorship erect legal barriers around expressive works. The theory that copyright enhances censorship in China, however, overlooks the immense tension between state attempts at information control and market-supported information production made possible by copyright. This Article demonstrates that the Chinese government does not wield unchecked, top-down control over China’s film industry …

Should All Drugs Be Patentable?: A Comparative Perspective, Cynthia M. Ho

Vanderbilt Journal of Entertainment & Technology Law

Although there has been substantial discussion of the proper scope of patentable subject matter in recent years, drugs have been overlooked. This Article begins to address that gap with a comparative perspective. In particular, this Article considers what is permissible under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as how India and Canada have utilized TRIPS flexibilities in different ways to properly reward developers of valuable new drugs, while also considering the social harm of higher prices beyond an initial patent term on drugs.

This Article brings valuable insight into this area at a critical …

The Lisbon Agreement: Why The United States Should Stop Fighting The Geneva Act, Danielle Dudding

Vanderbilt Journal of Entertainment & Technology Law

In May 2015, members of the World Intellectual Property Organization (WIPO) held a Diplomatic Conference that resulted in the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications. The Act modified the Lisbon Agreement (originally created in 1958), extending its previous protection of appellations of origin to geographical indications as well. The United States, which remains a non-party to the Lisbon Agreement, has been adamantly against the expansion of the Agreement to geographical indications. This Note explores the issues surrounding the Geneva Act, the state of the law and international agreements leading up to the Act, …

The Supreme Court Performs The Right Notes For Dish In Aereo, Lee B. Burgunder

Vanderbilt Journal of Entertainment & Technology Law

In American Broadcasting Companies, Inc. v. Aereo, Inc., the Supreme Court addressed whether a company publicly performs copyrighted works when it allocates separate antennas on its property to customers who individually decide what shows they each want to watch. This case was hotly debated because it provided a new opportunity for the Court to identify the responsible actors when copyrighted materials are transmitted over the Internet. Unfortunately, the Court ruled against Aereo without clearly articulating governing standards that might inform future decisions, relying instead on what the dissent called a "looks-like-cable-TV" approach. The deficiency has already provided additional ammunition for …

Invalidated Patents And Associated Patent Examiners, Shine Tu

Vanderbilt Journal of Entertainment & Technology Law

This study attempts to determine whether there are common characteristics between examiners who issue invalidated patents. This study uses two new patent databases that code for nearly 1.7 million patents and approximately one thousand patents that were litigated to a 'final" judgment between 2010 and 2011. This study finds that approximately one-third of patents that are litigated to final judgment are found invalid. Most invalidated patents are found in technology centers 1600, 2600, and 2700, which correspond to biotechnology and organic chemistry, communications, and computer science, respectively. Most patents are invalidated on prior art-type novelty and obviousness grounds. This study …

Applying Patent-Eligible Subject Matter Restrictions, J. Jonas Anderson

Vanderbilt Journal of Entertainment & Technology Law

The US Supreme Court's difficulty in promulgating a standard for patent-eligibility has not gone unnoticed in the academy. Hundreds of academic conferences, including this one, have been devoted to the topic. The goal of this Article is not to solve the seemingly intractable problem of patent-eligibility doctrine. The goal of this Article is rather more modest. Instead of normatively assessing patent-eligible subject matter doctrine, this Article seeks to identify which foundational theories of patent-eligible subject matter can most readily be applied by courts and the US Patent and Trademark Office via Section 101. In doing so, this Article categorizes the …

Developments In Synthetic Biology Are Altering The Ip Imperatives Of Biotechnology, Christopher M. Holman

Vanderbilt Journal of Entertainment & Technology Law

While the accomplishments of the biotechnology industry have been substantial, recent technological advances promise to dramatically increase the power and utility of the discipline over the coming years. The term "synthetic biology" has been coined to describe the application of these powerful new tools to the engineering of synthetic genetic sequences and organisms. In essence, synthetic biology represents the next iteration in the ongoing evolution of biotechnology, and hopes run high that in time, the fruits of synthetic biology will dwarf the past successes of conventional biotechnology. There is, however, some concern that the current patent-centric approach to Intellectual Property …

The Public Interest Inquiry For Permanent Injunctions Or Exclusion Orders: Shedding The Myopic Lens, P. Andrew Riley, Scott A. Allen

Vanderbilt Journal of Entertainment & Technology Law

President Obama's 2013 veto of a US International Trade Commission (ITC) exclusion order, issued to address Apple Inc.'s infringement of a patent owned by Samsung, thrust the ITC's public interest inquiry into the spotlight. Historically, however, these factors rarely weighed against a remedy at the ITC. Likewise, US district courts have rarely declined to issue a permanent injunction after finding a patent valid and infringed due solely to the public interest factor--the last of the four factors that the Supreme Court put in place in eBay Inc. v. Merc Exchange, L.L.C. More recent decisions addressing the public interest in both …

The Lost "Art" Of The Patent System, Sean M. O'Connor

Articles

Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause.

Only later, in the Industrial Revolution, did ‘‘science’’ and ‘‘technology’’ begin to displace ‘‘art’’ as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of ‘‘technology’’ itself as science-based innovation in artisanal and mechanized production.

The loss of an ‘‘art’’-based concept of the patent system is arguably causing some of the confusion over …

Patent Punting: How Fda And Antitrust Courts Undermine The Hatch-Waxman Act To Avoid Dealing With Patents, Rebecca S. Eisenberg, Daniel A. Crane

Michigan Telecommunications & Technology Law Review

Under the Hatch-Waxman Act, patent law and FDA regulation work together to determine the timing of generic entry in the market for drugs. But FDA has sought to avoid any responsibility for reading patents, insisting that its role in administering the patent provisions of the Hatch-Waxman Act is purely ministerial. This gap in regulatory oversight has allowed innovators to use irrelevant patents to defer generic competition. Meanwhile, patent litigation has set the stage for anticompetitive settlements rather than adjudication of the patent issues in the courts. As these settlements have provoked antitrust litigation, antitrust courts have proven no more willing …

Patent-Eligible Processes: An Audience Perspective, Timothy R. Holbrook, Mark D. Janis

Vanderbilt Journal of Entertainment & Technology Law

Many of the problems with modern patent-eligibility analysis can be traced back to a fundamental philosophical divide between judges who treat eligibility as the primary tool for effectuating patent policy and those who take patent-eligibility as nothing more than a coarse filter to be invoked in rare cases. After several years in which the coarse filter approach seemed to have the upper hand, the eligibility-as-king approach now is firmly in ascendancy. This Article resists that trend, exploring more centrist approaches to patent-eligibility, particularly in the context of process inventions. This Article first examines the practice of undertaking an eligibility analysis …

The International Copyright Problem And Durable Solutions, Susy Frankel

Vanderbilt Journal of Entertainment & Technology Law

The calls for copyright reform at both the national and international level are growing louder. Many authors, owners, distributors, users, and consumers are dissatisfied with the current regime, but solutions are not easy to find. Existing rules are inadequate to deal with copyright in the digital world and partial solutions are not likely to be durable. The problems of copyright are not confined to one jurisdiction. Just as the creation and dissemination of copyright works are global, copyright's legal problems are an international problem. Existing international rules alone cannot provide the solution to this policy debate, but they do have …

The Internet After Aereo: How To Save Innovation From The Public Performance Right, Patrick C. Tricker

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court's decision in American Broadcasting Companies, Inc. v. Aereo, Inc. overturned the Second Circuit's rule that separate copies create separate performances without clarifying the scope of a performance. The decision creates significant ambiguity surrounding the public performance right and potentially massive liability for cloud-computing companies. Since cloud computing allows customers to run programs remotely from a company's servers, two independent customers watching different copies of the same movie from the same cloud results in the cloud conducting a public performance. This Note examines this problem, concludes that the current public performance regime has become obsolete, and proposes a …

Initial Interest Confusion "Internet Troika" Abandoned? A Critical Look At Initial Interest Confusion As Applied Online, Connie D. Nichols

Vanderbilt Journal of Entertainment & Technology Law

The Ninth Circuit's opinion in Brookfield Communications, Inc. v. West Coast Entertainment Corp. seemingly created a standard to be applied in trademark infringement cases on the Internet. Despite the cautions contained within the Ninth Circuit's holding, Brookfield ushered in an era in which many courts placed emphasis on three factors of the "likelihood of confusion" test finding initial interest confusion in many online infringement cases based solely on these three factors. For over a decade, inconsistent application within the Ninth Circuit and other jurisdictions created a disjointed body of case law on initial interest confusion online. The Ninth Circuit's opinion …

Father(S?) Of Rock & Roll: Why The Johnnie Johnson V. Chuck Berry Songwriting Suit Should Change The Way Copyright Law Determines Joint Authorship, Timothy J. Mcfarlin

Vanderbilt Journal of Entertainment & Technology Law

"Father(s?) of Rock & Roll" utilizes a unique and historic resource--the previously unseen deposition testimony of Chuck Berry and his piano man Johnnie Johnson--to analyze the problems with how copyright law currently determines joint authorship and to propose a new "Berry-Johnson" joint authorship test. In 2000, Johnson sued Berry, claiming he co-wrote the music to nearly all the significant songs in the Berry canon. Granted access to the case file, I quote and analyze key portions of their deposition testimony, using it as a case study of high-level collaborative creativity and exploring what it can teach us about how best …

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Law Faculty Scholarship

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Nsfw: An Empirical Study Of Scandalous Trademarks, Megan M. Carpenter, Mary Garner

Law Faculty Scholarship

This project is an empirical analysis of trademarks that have received rejections based on their “scandalous” nature. It is the first of its kind.

The Lanham Act bars registration for trademarks that are “scandalous” and “immoral.” While much has been written on the morality provisions in the Lanham Act, this piece is the first scholarly project that engages an empirical analysis of the Section 2(a) rejections based on scandalousness; it contains a look behind the scenes at how the morality provisions are applied throughout the trademark registration process. This study analyzes which marks are being rejected, what evidence is being …