Work Made For Hire – Analyzing The Multifactor Balancing Test, 2015 The University of Akron School of Law
Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca
Ryan G. Vacca
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 ...
Silent Similarity, 2015 SelectedWorks
Silent Similarity, Jessica Litman
From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form -- silent movies -- had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases – in particular, Nichols v. Universal Pictures – are canonical today. They are not, however, well-understood. In particular, the ...
The Anti-Patent: A Proposal For Startup Immunity, 2015 SelectedWorks
The Anti-Patent: A Proposal For Startup Immunity, Amy L. Landers
Amy L. Landers
The controversy surrounding the current implementation of the patent system is well known. Some question whether the system has become entirely dysfunctional and disincentives innovation, particularly as the law operates within some industries. Moreover, early stage companies, particularly those just beginning to gain success, are particularly vulnerable targets for lawsuits. Notably, these same companies can be rich sources of important technological innovation.
Because the U.S. has always had a patent system, it is impossible to understand the intended and unintended consequences of eliminating this form of intellectual property protection even in a limited manner. As economist Fritz Machlup stated ...
Retroactivity At The Federal Circuit, 2014 Maurer School of Law: Indiana University
Retroactivity At The Federal Circuit, David L. Schwartz
Indiana Law Journal
A substantial subset of patent opinions from the Federal Circuit Court of Appeals functions in a wholly different manner from ordinary judicial opinions: they have strong retroactive effects with weak prospective effects. All Federal Circuit opinions have strong retroactive effects because issued patents and pending applications rarely can be modified. The Federal Circuit decisions apply in full to these patents and applications, even though they were prepared without the benefit of the rulings. In contrast, many of these opinions have almost no prospective effects. Patent law provides tremendous linguistic flexibility to patent drafters, which can be used to avoid the ...
The New Wild West: Preventing Money Laundering In The Bitcoin Network, 2014 SelectedWorks
The New Wild West: Preventing Money Laundering In The Bitcoin Network, Kavid Singh
Bitcoin is the most popular online decentralized currency in the world. Created by an enigmatic figure, Satoshi Nakamoto, in 2009, its propagation and use has caused heated controversy. On the legal side of its use, businesses both large and small have started to accept bitcoins as a form of payment. On the illegal side of its use, large quantities of bitcoins worth hundreds of millions of dollars have been stolen from businesses and large Bitcoin currency exchanges. The aim of this article is to introduce workable federal regulation that will help deter money laundering, a pervasive problem in the world ...
Learning From Lin: Lessons And Cautions From The Natural Commons For The Knowledge Commons, 2014 Maurer School of Law: Indiana University
Learning From Lin: Lessons And Cautions From The Natural Commons For The Knowledge Commons, Daniel H. Cole
No abstract provided.
Federal Circuit's Obviousness Test For New Pharmaceutical Compounds: Gobbledygook?, Douglas L. Rogers
Douglas L. Rogers
The statutory requirement that to obtain a patent an invention must not be obvious to a person having ordinary skill in the art helps maintain a balance between the incentives provided by the grant of patents and harm resulting from too many patent grants. In 2007 in KSR International Co. v. Teleflex Inc. the Supreme Court increased what would in the future constitute obvious (and thus unpatentable) inventions by: (1) expanding the types of prior art a court must consider in determining obviousness; (2) recognizing that steps that are obvious to try might result in inventions that are obvious; and ...
Linking To Liability: When Linking To Leaked Films, Scripts, And Television Shows Is Copyright Infringement,, Kimberlianne Podlas
This article examines the problem of movies, scripts, and other entertainment works being leaked online, and whether news and fan sites that link to such works are liable for copyright infringement. In the past few months alone, The Expendables 3, next week’s Doctor Who Series 8 premier, and Quentin Tarantino’s The Hateful Eight screenplay have all been leaked online. Internet leaks are uniquely problematic, as it is often not possible to identify the source of leak, traditional contract and tort remedies may not apply, or the greatest harm may be due to third parties’ linking to the work ...
The Costs And Benefits Of Regulatory Intervention In Internet Service Provider Interconnection Disputes: Lessons From Broadcaster-Cable Retransmission Consent Negotiations, Rob Frieden
This paper considers what limited roles the FCC may lawfully assume to ensure timely and fair interconnection and compensation agreements in the Internet ecosystem. The paper examines the FCC’s limited role in broadcaster-cable television retransmission consent negotiations with an eye toward assessing the applicability of this model. The FCC explicitly states that it lacks jurisdiction to prescribe terms, or to mandate binding arbitration. However, it recently interpreted its statutory authority to ensure “good faith” negotiations as allowing it to constrain broadcaster negotiating leverage by prohibiting multiple operators, having the largest market share, from joining in collective negotiations with cable ...
Internet Protocol Television And The Challenge Of “Mission Critical” Bits., 2014 SelectedWorks
Internet Protocol Television And The Challenge Of “Mission Critical” Bits., Rob Frieden
The Internet increasingly provides an alternative distribution medium for video and other types of high value, bandwidth intensive content. Many consumers have become “technology agnostic” about what kind of wireline or wireless medium provides service. However, they expect carriers to offer access anytime, anywhere, via any device and in any format. These early adopters of new technologies and alternatives to “legacy” media have no patience with the concept of “appointment television” that limits access to a specific time, on a single channel and in only one presentation format.
This paper assesses whether and how Internet Service Providers (“ISPs”) can offer ...
A Supplementary Submission On Trojan Horse Clauses: Investor-State Dispute Settlement, Matthew Rimmer
Executive Summary This supplementary submission considers a number of new developments in Investor-State Dispute Settlement in Canada, North America, the European Union, and Africa. This supplementary submission highlights the application of Investor-State Dispute Settlement in the context of water rights, intellectual property, and media regulation. This supplementary submission also highlights the conflict between domestic courts and international tribunals in Investor-State Dispute Settlement, raising significant issues about the rule of law and justice. Recommendation 14 In light of the work of Maude Barlow and the Council of Canadians, it is evident that Investor-State Dispute Settlement has a significant impact upon water ...
New And Non-Intrusive Forms Of Ip: “The Prioirty-Certificates”, 2014 SelectedWorks
New And Non-Intrusive Forms Of Ip: “The Prioirty-Certificates”, Gelu J. Comanescu
Gelu J. Comanescu
We explore the design of novel forms of intellectual property (IP) rights suitable for protecting scientific discoveries and abstract ideas. Particularly, we explore forms of intellectual property which are non-intrusive with respect to personal rights and do not have the negative side effects of monopoly-type IP rights.
We propose a system for formally acknowledging priority with respect to discoveries and ideas by granting certificates or documents attesting that a person is entitled to priority with respect to a certain subject matter. A government entity or a private party, may establish itself as a grantor of “priority-certificates” by granting such certificates ...
Reforming Copyright Interpretation, 2014 SelectedWorks
Reforming Copyright Interpretation, Zahr K. Said
Zahr K Said
This Article argues that copyright law needs to acknowledge and reform its interpretive choice regime. Even though judges face potentially outcome-determinative choices among competing sources of interpretive authority when they adjudicate copyrightable works, their selection of interpretive methods has been almost entirely overlooked by scholars and judges alike. This selection among competing interpretive methods demands that judges choose where to locate their own authority: in the work itself; in the context around the work, including its reception, or in the author’s intentions; in expert opinions; or in judicial intuition. Copyright’s interpretive choice regime controls questions of major importance ...
Public Good Economics And Standard Essential Patents, 2014 University of Pennsylvania Law School
Public Good Economics And Standard Essential Patents, Christopher S. Yoo
Standard essential patents have emerged as a major focus in both the public policy and academic arenas. The primary concern is that once a patented technology has been incorporated into a standard, the standard can effectively insulate it from competition from substitute technologies. To guard against the appropriation of quasi-rents that are the product of the standard setting process rather than the innovation itself, standard setting organizations (SSOs) require patentholders to disclose their relevant intellectual property before the standard has been adopted and to commit to license those rights on terms that are fair, reasonable, and non-discriminatory (FRAND).
To date ...
Frand V. Compulsory Licensing: The Lesser Of The Two Evils, 2014 University of Oklahoma College of Law
Frand V. Compulsory Licensing: The Lesser Of The Two Evils, Srividhya Ragavan
No abstract provided.
Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence And Intellectual Property Federalism, Shubha Ghosh
The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision upholding the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of ...
The Narrowest And Most Obvious Limits: Applying Fair Use To Appropriation Art Economically Using A Royalty System, 2014 The Catholic University of America, Columbus School of Law
The Narrowest And Most Obvious Limits: Applying Fair Use To Appropriation Art Economically Using A Royalty System, Brittani Everson
Catholic University Law Review
No abstract provided.
The Positive And Negative Consequences Of The European Union Court Of Justice's Amazon Decision On International Private Copying And America, 2014 The Catholic University of America, Columbus School of Law
The Positive And Negative Consequences Of The European Union Court Of Justice's Amazon Decision On International Private Copying And America, Jaclyn Kavendek
Catholic University Law Review
No abstract provided.
A Supplementary Submission To The Joint Standing Committee On Treaties On The Korea-Australia Free Trade Agreement, Matthew Rimmer
This supplementary submission responds to new developments regarding Investor-State Dispute Settlement; questions about transparency and the enforcement of labor and environmental standards in trade agreements; and the role of copyright exceptions in Korea.
Trademark Law And The Prickly Ambivalence Of Post-Parodies, 2014 SelectedWorks
Trademark Law And The Prickly Ambivalence Of Post-Parodies, Charles E. Colman
Charles E. Colman
This Essay examines what I call "post-parodies" in apparel. This emerging genre of do-it-yourself fashion is characterized by the appropriation and modification of third-party trademarks — not for the sake of dismissively mocking or zealously glorifying luxury fashion, but rather to engage in more complex forms of expression. I examine the cultural circumstances and psychological factors giving rise to post-parodic fashion, and conclude that the sensibility causing its proliferation is one grounded in ambivalence. Unfortunately, current doctrine governing trademark parodies cannot begin to make sense of post-parodic goods; among other shortcomings, that doctrine suffers from crude analytical tools and a cramped ...