Intellectual Property Law Commons^™

Dynamic Federalism And Patent Law Reform, Xuan-Thao Nguyen

Articles

Patent law is federal law, and the normative approach to patent reform has been top down, looking to Congress and the Supreme Court for changes to the broken and complex patent system. The normative approach thus far has not yielded satisfactory results. This Article challenges the static approach to patent reform and embraces the dynamic-federalism approach that patent reform can be an overlapping of both national and local efforts. Patent reform at the local level is essential as locales can serve as laboratories for changes, vertically compete with national government to reform certain areas of the patent system, and become …

Cultivating Farmers' Rights: Reconciling Food Security, Indigenous Agriculture, And Trips, Lauren Winter

Vanderbilt Journal of Transnational Law

This Note discusses strategies for cultivating Farmers' Rights internationally. The rise of international treaties awarding intellectual property rights in plant genetic resources to plant breeders brought with it an erosion of agricultural biodiversity as well indigenous farmer lifestyles. Farmers' Rights emerged in recognition of the role of traditional farmers play in conserving, creating, and promoting genetic diversity in the food supply and of the importance of maintaining traditional agriculture practices. This Note argues that Farmers' Rights can be realized internationally through concerted effort. The Note proposes that Farmers' Rights could be realized if national governments create laws and infrastructure that …

Opportunistic Evolution: How State Legislation Is Seeking To Redefine Academic Freedom To Permit Intelligent Design In The Classroom, Crystal Canterbury

West Virginia Law Review

No abstract provided.

Trademark Remedies And Online Intermediaries, Stacey Dogan

Faculty Scholarship

For several years now, courts and commentators have tussled over the question of whether online intermediaries can face liability under trademark law. Because both case law and commentary have largely focused on the threshold question of "trademark use, " we know little about what specific behavior will subject intermediaries to liability and what remedies might follow. This Essay takes some preliminary steps toward addressing those questions.

The Expansion Trajectory: Trademark Jurisprudence In The Modern Age, Kenneth L. Port

Faculty Scholarship

American trademark law is expanding. The expansion began with the adoption of

the Lanham Act in 1947. At that time and ever since, commentators and law makers

alike referred to the Lanham Act as a codification of the existing common law. In fact,

this codification was a selection and expansion of the common law. The United States

has continued to expand trademark jurisprudence: from incontestability, to cybersquatting,

to dilution - the notion of what it means to protect a trademark has

continued to expand. During this time, the Commerce Clause on which American

federal trademark protection is based has not …

The Evolution Of Trade Secret Law And Why Courts Commit Error When They Do Not Follow The Uniform Trade Secrets Act, Sharon Sandeen

Faculty Scholarship

In the spring of 2010, the Hamline Law Review hosted a symposium to mark the thirtieth anniversary of the adoption of the Uniform Trade Secrets Act. This article was written for the symposium and provides an exhaustive and detailed account of the historical context and drafting history of the Uniform Trade Secrets Act (the UTSA).

Among other stories that it tells, the article explains that the UTSA was prompted by the “Erie/Sears/Compco squeeze.” Because of the Supreme Court’s famous decision in Erie R.R. Co. v. Tompkins in 1938, it was understood by business interests and their attorneys that the common …

Applying The Rationales Of Patent Claim Construction Doctrines To Interpretation Of Patent Statutes, Grace Pak

Hastings Communications and Entertainment Law Journal

Statutory construction is often determinative in lawsuits. In that vein, which theory of statutory construction a court chooses to employ-whether textualism, intentionalism, or purposivism-is decidedly influential. This note argues that strict adherence to textualism in interpreting patent statutes leads to unsound results, while applying purposivism leads to sound results. To demonstrate, this note walks through the Supreme Court's textual approach in interpreting 35 U.S.C. § 271(0 in Microsoft v. AT&T, and contrasts that with the Federal Circuit's purposivist approach in interpreting the same statute. This note argues that the Federal Circuit's purposivist approach is more appropriate because it more closely …

Judicial Kryptonite: Superman And The Consideration Of Moral Rights In American Copyright, Sean Mcgilvray

Hastings Communications and Entertainment Law Journal

Superman is one of the most enduring and widely-recognized fictional characters of all time. But behind the scenes of his colorful adventures, a bitter struggle raged between his original creators and the publisher who currently owns the copyright. In a historic recent decision, the United States District Court for the Central District of California granted a summary judgment declaring that the heirs of the writer had recaptured a portion of the copyright in Superman through the Copyright Act's termination and recapture tight provisions. While, not expressly premised upon moral rights considerations, the judgment reflects many of the core values of …

Protecting A Jewel Of A Trademark: Lessons Learned From The Dae Jang Geum Litigation On Using U.S. Law To Protect Trademarks Based On Imported Popular Culture Icons, Robert J. Kang

Hastings Communications and Entertainment Law Journal

U.S. trademark law protects trademarks that have achieved a sufficient degree of fame. This principle extends to trademarks based on foreign popular culture icons, such as Japan's "Hello Kitty." But while that principle seems obvious, caselaw on this subject has been minimal. Without clear judicial guidance confirming that such trademarks are protectable, American infringers may have felt emboldened to misappropriate them. However, in 2007 and 2008, a United States District Court presided over a trademark litigation involving "Dae Jang Geum," the name of the most popular Korean television drama in history. By analyzing the three most important orders issued in …

Storage And Privacy In The Cloud: Enduring Access To Ephemeral Messages, Sarah Salter

Hastings Communications and Entertainment Law Journal

The paper examines the distinction between "stored communications" and the greater privacy protection given to communications in the process of transmission under U.S. federal law. The issue arises in the context of voice mail, text messages, and email. Statutes examined include the Stored Communications Act, the Electronic Communications Privacy Act ("ECPA"), the Wiretap Act, and the language amending the Wiretap Act to eliminate storage from the definition of wire communication in the USA Patriot Act. Case discussions examine the development of the concept of "stored" communications. The emphasis is on recent cases after the USA Patriot Act and a decision …

Cutting Cupid Out Of The Workplace: The Capacity Of Employees' Constitutional Privacy Rights To Constrain Employers' Attempts To Limit Off-Duty Intimate Associations, Anna C. Camp

Hastings Communications and Entertainment Law Journal

Romantic relationships among co-workers: should employers have the right to suppress such activity? Employers often view the widespread practice of dating among co-workers as highly problematic. In light of increased sexual harassment suits, many employers attempt to limit or eliminate intimate relationships among employees through the institution of "no-fraternization" policies. The strictest of these policies allow for legal termination of employees that violate the policy's terms, and can include total prohibition of intimate relationships among co-workers. Employees argue that such bans, which also affect employees' off-duty intimate association, should be held unconstitutionally invasive of employees' privacy rights or invalid on …

Regulating Relationships Between Competing Broadcasters, Christopher S. Reed

Hastings Communications and Entertainment Law Journal

In response to mounting economic challenges in the media industry, some broadcasters have started entering into agreements whereby one station agrees to sell advertising, produce programming, or take over certain other functions of another station in the same market. Though such arrangements, often called local marketing or time brokerage agreements, are not particularly new in the broadcasting field, they have been used with increasing frequency in recent years.

This article examines the form and function of cooperative agreements among broadcasters and explores the reasons why such agreements are attractive business propositions for those who enter into them. It then describes …

Citizens United And The Future Of Fcc Content Regulation, Elizabeth Elices

Hastings Communications and Entertainment Law Journal

This paper examines the potential impact of Citizens United v. Federal Election Commission upon content-based Federal Communications Commission regulations. Although Citizens United focused on Federal Election Commission regulations, the case reflects the various First Amendment doctrines favored by the current Court, and its reasoning may extend to other areas of regulated speech.

Part I of the paper will discuss several prominent areas of First Amendment doctrine as well as the roles of the FCC and the FEC. Part II will briefly desccribe the background and outcome of Citizens United. Finally, Part III will analyze several FCC regulations, primarily regarding content …

The New Digital Dating Behavior - Sexting: Teens' Explicit Love Letters: Criminal Justice Or Civil Liability, Terri Day

Hastings Communications and Entertainment Law Journal

This paper proposes a unique response to the explosive combination of teens, sex and technology. It discusses why most teen sexting does not meet the Ferber definition of child pornography; therefore, a civil remedy for the dignitary and emotional harm caused by the public dissemination of private sexual pictures is far superior to imposing criminal sanctions. The proposed statutory civil cause of action would hold parents vicariously liable for the harms caused by their children's sexting when done with actual malice. Recognizing that common law tort liability is legally unsustainable, this approach strikes a balance between protecting First Amendment rights …

Technology And Copyright Law - Illuminating The Nfl's Blackout Rule In Game Broadcasting, Sonali Chitre

Hastings Communications and Entertainment Law Journal

Copyright is critical to protecting sports broadcasts, and new technology has evolved to disseminate these broadcasts to the many people that enjoy professional sports. Because of new digital rights in the copyright statute, the NFL has very strong copyright protections that cover Internet, satellite, television, and radio licensing of its broadcasts. A "blackout" blocks certain programs from being broadcast in a particular market. Attempting to incentivize fans to come to football games, the NFL "blacks out" games that are not sold out within seventytwo hours of game time within a seventy-five-mile radius of the stadium. The "blackout rule" has been …

Free Speech Or Trademark Protections: Do Advocacy Groups And Government Agencies Deserve Extra Protection, Max Landaw

Hastings Communications and Entertainment Law Journal

Since October 2009, the American judicial system has been posed with yet another lawsuit in the oft recurring battle between trademark protections and right to freedom of expression, specifically the right to parody. The Yes Men, a parody troop, in a stunt which confused numerous news outlets, held a press conference as "members" of the United States Chamber of Commerce. The Chamber responded by suing the Yes Men for, amongst other causes of action, trademark infringement pursuant to the Lanham Act. This note will first analyze the history of the debate between the conflicting right of free expression and consumer …

Valuing Intellectual Property: An Experiment, Christopher Buccafusco, Christopher Sprigman

Faculty Scholarship

In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions. …

Unstandard Standardization: The Case Of Biology, Arti K. Rai

Faculty Scholarship

How applicable are the approaches adopted by information and communication technology standards-setting organizations to biological standards? Most engineering-based industries construct products from standard, well understood components. By contrast, despite the early attachment of the moniker “genetic engineering” to biotechnology, standardization in the biological sciences has been relatively rare.

Evaluation Of The Design Piracy Prohibition Act: Is The Cure Worse Than The Disease? An Analogy With Counterfeiting And A Comparison With The Protection Available In The European Community., Silvia Beltrametti

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Network Transparency: Seeing The Neutral Network, Adam Candeub

Northwestern Journal of Technology and Intellectual Property

No abstract provided.