Intellectual Property Law Commons^™

Editing Classic Books: A Threat To The Public Domain?, Cathay Y. N. Smith

Faculty Law Review Articles

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Faculty Scholarship

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

An Unauthorized Renaissance? An Analysis Of Artists’ Claims For Copyright Infringement Against Ai Generated Art And Possible Defenses, Victoria Young

FIU Law Review

AI currently presents a novel issue in terms of copyright infringement, specifically AI generated art. Recently, a group of artists filed a class action lawsuit against several AI generated art companies. This comment evaluates the potential avenues the court may take. The artists allege these AI generated art companies directly infringed on their copyrighted works by making unauthorized copies of copyrighted works which they used to train their machine learning programs. A determination on whether AI generated art constitutes copyright infringement has not been made by the courts before. To bring a successful copyright infringement claim, a party must show …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

Virtually Identical: A Case For Maintaining Architectural Copyright Protections In The Metaverse, Stephen Mcpaul

Cybaris®

No abstract provided.

Applying Current Copyright Law To Artificial Intelligence Image Generators In The Context Of Anderson V. Stability Ai, Ltd., Matthew Lindberg

Cybaris®

No abstract provided.

Disharmony In Patent Law: A Comparative Study Of Patent Eligibility Of Biological Subject Matters Between China And The United States, Xiongying Tu

Cybaris®

Disharmonies in intellectual property rights have led countries, like China and the U.S., to implement patent laws tailored to their unique culture, values, and goals while complying with international treaties. China's exclusion of treatment and diagnosis methods from patent protection prioritizes healthcare accessibility, whereas the U.S.'s allowance of patentability fosters medical innovation. Similarly, China's exclusion of animal and plant patentability aligns with cultural and agricultural values, emphasizing resource accessibility and food security. Protecting genetic resources poses challenges, with China aligning its patent law proactively with the CBD principles and the U.S. prioritizing unrestricted access. China's approach to human stem cell …

Keeping It Wreal: How The Eleventh Circuit's Wreal Decision Is Better Suited For A Uniform Reverse Confusion Multifactor Analysis, Sean J. Flaherty

Marquette Intellectual Property & Innovation Law Review

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Innovator Ecosystem Diversity As A Global Competitiveness Imperative, Margo A. Bagley

Marquette Intellectual Property & Innovation Law Review

None

A Questionable Categorization — Trademark's Struggle To Protect Tribal Cultural Property, Emilie (Smith) Rohde

Marquette Intellectual Property & Innovation Law Review

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The Effects Of Section 101'S Subject Matter Eligibility Requirement On Fintech Patent Valuation Models, Fhernam Batiz

Marquette Intellectual Property & Innovation Law Review

None

Withdrawing Lanham Act Section 2(C) Consent: What Should Courts Do?, Zachary R. Semancik

Marquette Intellectual Property & Innovation Law Review

None

Patent Term Tailoring, Sarah R. Wasserman Rajec

Faculty Publications

Patent rights are designed to encourage innovation with both the promise of a patent and with its expiration. Currently, patent term lasts from issuance until twenty years from the application date, with minor exceptions. The patent term is limited so that rewards for past invention do not overly hinder future progress. Although the goal is laudable, a uniform patent term is a blunt instrument to achieve such a nuanced balance. Historically, the patent system was not averse to tailoring terms through, for example, individually granted extensions to undercompensated inventors or term curtailment when a foreign patent holder failed to “work” …

Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Gutte

Faculty Scholarship

Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the "injurer-innovator problem." Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation …

Competition And Congestion In Trademark Law, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna

Faculty Scholarship

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this Article, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being …

Unpatenting Product Hops, Michael S. Sinha

All Faculty Scholarship

On July 9, 2021, President Joseph R. Biden signed Executive Order 14036 (“Promoting Competition in the American Economy”), which directed the U.S. Food and Drug Administration (FDA) and the U.S. Patent and Trademark Office (USPTO) to collaborate on new approaches to increasing competition and lowering prices in the pharmaceutical marketplace. In response, the USPTO outlined several new initiatives, among them an intent to improve the robustness and reliability of issued patents.

A major impetus for the Executive Order was the pervasive nature of pharmaceutical product hopping, which occurs when manufacturers introduce new follow-on versions of lucrative pharmaceutical products to the …

The Copyright Work Of Authorship, Hemnes, Thomas

Santa Clara High Technology Law Journal

The “work of authorship” lies at the heart of the Copyright Act of 1976. It is what copyright protects. Central though the concept is, the Act never defines what a work of authorship might be. According to the Act, it can be perceived in tangible fixations, but is distinct from the fixations. The Act also provides examples: writings, drawings, computer programs, but never describes how these might be distinguished from their fixations. Unlike the Patent Act, where “metes and bounds” of a patentable invention are defined by a patent’s claims, the Copyright Act provides no guidance as to what the …

Non-Fungible Tokens (Nfts) And Copyright Law, Ochoa, Tyler T.

Santa Clara High Technology Law Journal

The concept of using non-fungible tokens (NFTs) to facilitate and authenticate sales of digital art dates back to 2014; but it took several years before the concept really captured public attention. Since copyright law governs the reproduction of works of art, including digital images, the connection to NFTs seems obvious. Yet, copyright law is only tangentially related to NFTs, for two reasons. First, buying an NFT does not, by itself, convey any rights to reproduce or display the work associated with that token. Instead, those rights are governed entirely by the contract that accompanies the sale. Second, minting and selling …

Analysis Of Global Data Privacy Regulations And How Transnational Companies Are Impacted, Fujimori-Smith, Aska

Santa Clara High Technology Law Journal

Privacy regulations are being developed and altered globally. An American company working transnationally will want to make sure to comply with the privacy regulations of each country in which the company either conducts business or otherwise utilizes that country’s citizens’ data. Currently, the GDPR has the strictest standards regarding data processing agreements between a primary organization and another data processor. While the CCPA/CPRA and the PDPA require DPAs, a company in compliance with the GDPR will likely comply with the CCPA/CPRA and the PDPA. Case law is evolving to address the extent of the reach of the extraterritorial legislation. However, …

Relying On Unreliable Tech: Unchecked Police Use Of Algorithmic Technologies, Fraerman, Ali

Santa Clara High Technology Law Journal

In the past two decades, police forces have come to rely on algorithm-based technologies for investigative leads. Several of these technologies are unreliable. They are prone to error, misidentifying suspects, and crimes. When relied upon, they lead to false arrests and unnecessary stop-and-frisks. Yet, there is no coercive mechanism, either regulatory or judicial, that meaningfully governs the use of these algorithmic technologies in law enforcement. As a result, law enforcement agencies are free to disregard potential errors and deploy emerging technologies against communities with little recourse.

This Article looks closely at three technologies—ShotSpotter gunshot detection, facial recognition technology, and rapid …