Intellectual Property Law Commons^™

Copyright As Market Prospect, Shyamkrishna Balganesh

Faculty Scholarship

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts—principally trespass and negligence—in order to understand copyright’s structure of entitlement and liability. This focus on property- and harm-based torts has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant's volitional actions interfere with a potential economic ...

Nuisance Law And The Doctrine Of Equivalents In Patent Law, Min-Chiuan Wang

Santa Clara High Technology Law Journal

Nuisance Law and the Doctrine of Equivalents in Patent Law

Commentary, Improving The Quality And Consistency Of Copyright Infringement Analysis In Music, Kristelia A. García

Articles

No abstract provided.

So Happy Together: Should The California Decision Be A Basis To Recognize A Right Of Public Performance In Pre-1972 Sound Recordings?, Vicenç Feliú

Faculty Scholarship

One of the peculiarities of American copyright law is the way it deals with sound recordings. The federal copyright regime treated sound recordings as different from the protection awarded other copies and, consequently, there are some gaps in protection coverage. Because of how federal protection developed, pre-1972 sound recordings are not protected by federal law and have only the patchwork protection afforded under state laws.In August of 2013, Mark Volman and Howard Kaylan, the founding members of the 1960s rock group The Turtles, filed a $100 million class action suit in California, under the incorporated name Flo & Eddie, Inc ...

Patent Pilot Program Perspectives: Patent Litigation In The Northern District Of Illinois, 17 J. Marshall Rev. Intell. Prop. L. 348 (2018)

The John Marshall Review of Intellectual Property Law

A Patent Pilot Program, or PPP, is geared towards giving designated judges in various districts more experience with patent cases. The Volume 17 RIPL Executive Board interviewed several participating judges in the Northern District of Illinois’ PPP.

This note is comprised of interviews with Judge Thomas M. Durkin, Judge Matthew F. Kennelly, and Judge Rebecca R. Pallmeyer of the United States District Court, Northern District of Illinois; taken over the course of May and June of 2017 by the Volume 17 RIPL Board members Kaylee Willis and Benjamin Lockyer. Its contents compile a uniform effort by both the judges interviewed ...

Temporary Restraining Orders To Enforce Intellectual Property Rights At Trade Shows: An Empirical Study, Marketa Trimble

Scholarly Works

Infringements of intellectual property (IP) rights by exhibitors at trade shows (also called trade fairs or exhibitions), such as infringements committed through exhibitions of or offers to sell infringing products, can be extremely damaging to IP right owners because of the wide exposure that trade shows provide for infringing IP; the promotion of the infringing IP and the contacts made by infringers at trade shows can facilitate further infringements after a trade show that can be very difficult for IP right owners to prevent. IP right owners therefore seek to obtain emergency injunctive relief to stop trade show infringements immediately ...

The Supreme Court: A Help Or A Hindrance To The Federal Circuit's Mission?, 17 J. Marshall Rev. Intell. Prop. L. 298 (2018), Donald Dunner

The John Marshall Review of Intellectual Property Law

Before the establishment of the Federal Circuit, the system of patent enforcement was deeply flawed, with the circuit courts then responsible for reviewing district court patent decisions harboring widely varying attitudinal views in the interpretation of the patent law. Suggestions for solving the problem through a single specialized appellate patent court were consistently rejected due to general hostility to specialized courts. The formation of the Federal Circuit in 1982 initially appeared to solve the problem in providing uniform and predictable rules governing the enforcement of patents, an essential aspect of the court’s mission. The Supreme Court did not provide ...

The Trademark Disclaimer Provision Of The Lanham Act: Is Uspto Flexibility Worth Litigant Ambiguity?, 17 J. Marshall Rev. Intell. Prop. L. 305 (2018), Scott Locke

The John Marshall Review of Intellectual Property Law

Most trademark applicants and the attorneys who counsel them are familiar with the requirement that they disclaim terms within their trademarks because those terms are descriptive or generic. The United States Patent and Trademark Office’s authority to direct applicants to disclaim terms is codified in the Trademark Disclaimer Provision of the Lanham Act, which provides examiners with a great deal of discretion. The same provision has been interpreted as providing applicants with the options of: taking conflicting positions, e.g., that the term is neither descriptive nor generic in the context of their marks, when asserting common law rights ...

Failure Is Not Falling Down But Refusing To Get Up: Implication Of Huawei/Zte Framework (Cjeu 2015) In Europe, 17 J. Marshall Rev. Intell. Prop. L. 326 (2018), Ashish Bharadwaj, Dipinn Verma

The John Marshall Review of Intellectual Property Law

The jurisprudence on standard-essential patents (SEPs) has evolved substantially in the last few years, particularly in the European jurisdictions, where EU courts have dealt with certain FRAND and antitrust issues in an unambiguous and novel manner. The 2015 landmark judgement in Huawei v. ZTE by the Court of Justice of the European Union brought clarity in understanding ‘unwilling licensee’ and laid down terms under which the holder of a FRAND-compliant SEP can seek injunctive relief that does not amount to an abuse of its dominant position. Four important judgements in Germany followed, where the regional courts have applied the CJEU ...

Deja Vu Or Copyright Infringement? Why Melania Trump Infringed On Michelle Obama's Copyrighted Speech Through Subconscious Copying, 17 J. Marshall Rev. Intell. Prop. L. 360 (2018), Danielle Mobley

The John Marshall Review of Intellectual Property Law

In 2016, Melania Trump recited a beautiful speech at the Republican National Convention that had portions which sounded exactly like a speech given by Michelle Obama at the Democratic National Convention in 2008. Mrs. Trump feigned ignorance of the 2008 DNC speech, and essentially the speech was superseded by another news story within a week. While some critics claim plagiarism, Mrs. Obama could have a potential copyright infringement claim against Mrs. Trump based on the context of the speech, the actual portions lifted from Mrs. Obama’s speech, and the doctrine of subconscious copying. This article first examines the elements ...

Digital Infrastructures That Embody Library Principles: The Imls National Digital Platform As A Framework For Digital Library Tools And Services, Trevor Owens, Ashley E. Sands, Emily Reynolds, James Neal, Stephen Mayeaux, Maura Marx

Copyright, Fair Use, Scholarly Communication, etc.

Digital library infrastructures must not simply work. They must also manifest the core principles of libraries and archives. Since 2014, the Institute of Museum and Library Services (IMLS) has engaged with stakeholders from diverse library communities to consider collaborative approaches to building digital library tools and services. The “national digital platform” for libraries, archives, and museums is the framework that resulted from these dialogs.1 One key feature of the national digital platform (NDP) is the anchoring of core library principles within the development of digital tools and services. This essay explores how NDP-funded projects enact library principles as part ...

Why The Nagoya Protocol To The Cbd Matters To Science And Industry In Canada And The United States, Jerome H. Reichman

Faculty Scholarship

No abstract provided.

Forward, Curtis E.A. Karnow

Curtis E.A. Karnow

Business Methods, Technology, And Discrimination, Daniel Harris Brean

Daniel Harris Brean

The Maker Movement: Copyright Law, Remix Culture, And 3d Printing, Matthew Rimmer

Matthew Rimmer

Tcl V. Ericsson: The First Major U.S. Top-Down Frand Royalty Decision, Jorge L. Contreras

Utah Law Faculty Scholarship

On December 21, 2017, the U.S. District Court for the Central District of California released its long awaited Memorandum of Findings of Fact and Conclusions of Law in TCL Communications v. Ericsson. In a lengthy and carefully crafted decision, Judge James Selna sets forth some important new points regarding the calculation of fair, reasonable and non-discriminatory (FRAND) royalties for standardsessential patents (SEPs). Among other things, the decision offers a strong endorsement of “top down” methodologies for the calculation of SEP royalties, and makes significant use of the non-discrimination (ND) prong of the FRAND commitment in arriving at a FRAND ...

The Alliance Of Small Island States: Intellectual Property, Cultural Heritage, And Climate Change, Matthew Rimmer

Matthew Rimmer

Surveying The Scalability Of Open Access Monograph Initiatives: Final Report, Christopher Barnes,, Rebecca Welzenbach, Kathleen Folger

Copyright, Fair Use, Scholarly Communication, etc.

In June of 2016, the University of Michigan Library (MLibrary) and Knowledge Unlatched (KU) announced the start of a collaboration “to study and overcome remaining obstacles to the spread of open access scholarly publishing in the humanities and social sciences.”1 This survey grew out of that partnership and was designed to gather data useful for determining the scalability of library-supported open access (OA) initiatives focusing on monographs in the Humanities and Social Sciences such as Luminos, Open Book Publishers, and KU. The survey was designed and conducted by Christopher A. Barnes, Ph.D., while a graduate student in library ...

Restructuring Intellectual Property Jurisdictions Post-Brexit: Strategic Considerations For The Eu And Britain, Alexandra George

Brooklyn Journal of International Law

Britain’s decision to “Brexit” from the European Union has caused great uncertainty and justified concern with respect to intellectual property laws and investments. Post-Brexit arrangements between the European Union and Britain have not yet been determined, and it is unclear whether these will be settled with respect to intellectual property law before Brexit is due to take effect in 2019. With intellectual property intensive industries accounting for 88 percent of EU imports and 90 percent of EU exports, British-EU intellectual property arrangements are the subject of intense interest worldwide as intellectual property owners and users speculate as to the ...

Slipping Through The Cracks: How Digital Music Streaming Cuts Corners On Artists’ Royalty Revenues Globally, Frances Lewis

Brooklyn Journal of International Law

At a time when the digital distribution of music is dominating the music industry, there are more music consumers than ever. This makes it vitally important for performing artists to receive the credit they are due. An inherent problem in music’s digital distribution market is that music streaming companies often fail to acquire proper licenses to expand their music libraries faster than their competitors. Performing artists who may not have the same income stream as their A-list counterparts often cannot bear the cost of litigation to pursue uncredited royalties. The U.S. class action model provides performing artists with ...