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Silent Similarity, Jessica Litman 2015 SelectedWorks

Silent Similarity, Jessica Litman

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 ...


Antitrust And The Patent System: A Reexamination, Herbert Hovenkamp 2015 University of Iowa

Antitrust And The Patent System: A Reexamination, Herbert Hovenkamp

Herbert Hovenkamp

Since the federal antitrust laws were first passed they have cycled through extreme positions on the relationship between competition law and the patent system. Previous studies of antitrust and the patent system have generally assumed that patents are valid, discrete, and generally of high quality in the sense that they further innovation. As a result, increasing the returns to patenting increases the incentive to do socially valuable innovation. Further, if the returns to the patentee exceed the social losses caused by increased exclusion, the tradeoff is positive and antitrust should not interfere. If a patent does nothing to further innovation ...


Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca 2015 University of Akron

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

Akron Law Publications

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 ...


The Anti-Patent: A Proposal For Startup Immunity, Amy L. Landers 2015 Drexel University Thomas R. Kline School of Law

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 ...


Fetishizing Copies, Jessica Litman 2015 SelectedWorks

Fetishizing Copies, Jessica Litman

Jessica Litman

The most important reason we have copyright laws is to encourage authors to create new works and communicate them to the public. The most important reason we want them to do that is because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works ...


Patented Standards: In Search For Co-Existence, Tyrone Berger 2015 SelectedWorks

Patented Standards: In Search For Co-Existence, Tyrone Berger

Tyrone Berger

This article investigates some key problems surrounding patented standards and technological standardisation. It surveys two emerging conflicts, namely patent hold-up and patent ambush, in light of potential anticompetitive conduct by industry participants in the development of a technical standard. A paired relationship is fostered when proprietary rights, such as patents, are adopted in a standard. For example, when new knowledge is generated through research and development, it is captured and widely distributed to the market, via standards, ensuring equal access to the new technology. However, a key concern is that this consensus-based practice may provide companies with a degree of ...


Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca 2015 University of Akron

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 ...


Reconciling International Obligations To Protect Health And Trademarks: A Defense Of Trademarks As Property, Sam Halabi 2015 University of Tulsa College of Law

Reconciling International Obligations To Protect Health And Trademarks: A Defense Of Trademarks As Property, Sam Halabi

Sam Halabi

This chapter explores the growing confrontation between international investment and trade rules and measures adopted by governments to protect their populations from deceptive or misleading trademarks. it argues that, in contrast to prevailing wisdom, that a property analogy for trademarks is beneficial for purposes of reconciling these bodies of law as the analogy between free speech and trademarks is likely to be far more constraining for public health measures.


From Patent Thickets To Patent Networks: The Legal Infrastructure Of The Digital Economy, Jonathan M. Barnett 2014 BLR

From Patent Thickets To Patent Networks: The Legal Infrastructure Of The Digital Economy, Jonathan M. Barnett

University of Southern California Legal Studies Working Paper Series

Scholarly and popular commentary often assert that markets characterized by intensive patent issuance and enforcement suffer from “patent thickets” that suppress innovation. This assertion is difficult to reconcile with continuous robust levels of R&D investment, coupled with declining prices, in technology markets that have operated under intensive patent issuance and enforcement for several decades. Using network visualization software, I show that information and communication technology markets rely on patent pools and other cross-licensing structures to mitigate or avoid patent thickets and associated inefficiencies. Based on the composition, structure, terms and pricing of selected leading patent pools in the ICT ...


A Square Peg Into A Round Hole: Trade Dress Protection Of Websites, The Perspective Of The Consumer And The Dilemma For The Courts, Amber R. Cohen 2014 University of Massachusetts School of Law

A Square Peg Into A Round Hole: Trade Dress Protection Of Websites, The Perspective Of The Consumer And The Dilemma For The Courts, Amber R. Cohen

University of Massachusetts Law Review

This Note explores the legalities of trade dress protection for a website, the enforcement of such protection, and what is necessary to protect the “look and feel” of a website. Further, this Note claims it is nearly impossible to protect the “look and feel” of a website because the functionality of the site will always trump protection.


Computer Programs Under The United States Intellectual Property System: Sui Generis Legislation Is Needed, Joseph Francis Agnelli, III 2014 University of Massachusetts School of Law

Computer Programs Under The United States Intellectual Property System: Sui Generis Legislation Is Needed, Joseph Francis Agnelli, Iii

University of Massachusetts Law Review

Section I of this article explores the different avenues of intellectual property protection presently available for computer software here in the United States. Section II then discusses how the European Community has resolved the computer program crisis under European intellectual property law. Lastly, section III will illustrate why sui generis legislation would be the paramount way for Congress to attack the intricacy that is created by computer programs under American intellectual property law.


Federalist Society’S Intellectual Property Practice Group And Its Stanford Law School Present A Debate On Open Source And Intellectual Property Rights, Lawrence Lessig, F. Scott Kieff, G. Marcus Cole 2014 University of Massachusetts School of Law

Federalist Society’S Intellectual Property Practice Group And Its Stanford Law School Present A Debate On Open Source And Intellectual Property Rights, Lawrence Lessig, F. Scott Kieff, G. Marcus Cole

University of Massachusetts Law Review

Transcript of the Federalist Society’s Intellectual Property Practice Group and its Stanford Law School Chapter debate on Open Source and Intellectual Property Rights with panelists Professor Lawrence Lessig from Stanford University and Professor F. Scott Kieff from Stanford University and moderated by Professor G. Marcus Cole from Stanford Law School. This debate took place on Wednesday, March 30, 2005 in Palo Alto, California.


Intellectual Property Rights In An Attorney’S Work Product, Ralph D. Clifford 2014 University of Massachusetts School of Law

Intellectual Property Rights In An Attorney’S Work Product, Ralph D. Clifford

University of Massachusetts Law Review

This paper addresses the main intellectual property consequences of practicing law and whether attorneys can prevent others from using their work-product. The article does not assume that the reader is an expert in intellectual property law; instead, it is designed to answer the types of questions practitioners have about their rights. There is one primary legal code that impacts attorneys’ rights to their work-product: the copyright law. As a broad statement, copyright law protects how an author expresses ideas. It is the system that is used to prevent others from copying a book, a movie, a musical composition, or even ...


State Sovereign Immunity And Intellectual Property: An Evaluation Of The Trademark Remedy Clarification Act’S Attempt To Subject States To Suit In Federal Courts For Trademark Infringements Under The Lanham Act, Jennifer L. Fessler 2014 University of Massachusetts School of Law

State Sovereign Immunity And Intellectual Property: An Evaluation Of The Trademark Remedy Clarification Act’S Attempt To Subject States To Suit In Federal Courts For Trademark Infringements Under The Lanham Act, Jennifer L. Fessler

University of Massachusetts Law Review

There are two things that can be learned from this paper. First, the analytical framework developed by the Court in City of Boerne is a stringent test that has considerably narrowed Congress’s ability to abrogate state’s Eleventh Amendment immunity through legislation. Second, only half of the battle was won when Congress enacted the Trademark Remedy Clarification Act. Although it met the new requirements the Court placed on legislative efforts in Atascadero, it is not able to meet the requirements that were later set forth in Seminole Tribe. The Rehnquist Court’s holdings indicate the Court’s active pursuit ...


Will Sony's Fourth Playstation Lead To A Second Sony V. Universal?, Seth Ascher 2014 Duke Law

Will Sony's Fourth Playstation Lead To A Second Sony V. Universal?, Seth Ascher

Duke Law & Technology Review

Sony has included a “share” button on the next version of their popular PlayStation video game system. This feature is meant to allow players to record and share videos of their gameplay. This service shares similarities with the controversial “record” button that Sony included with its Betamax players over thirty years ago. The Betamax player was the subject of the landmark case Sony v. Universal, a foundational case for the modern application of copyright law to new technology. This Issue Brief examines how this “share” feature would fare under the framework laid out by Sony v. Universal and other evolutions ...


Section 337 And The Gatt: A Necessary Protection Or An Unfair Trade Practice?, Nathan G. Knight Jr. 2014 University of Georgia School of Law

Section 337 And The Gatt: A Necessary Protection Or An Unfair Trade Practice?, Nathan G. Knight Jr.

Georgia Journal of International & Comparative Law

No abstract provided.


Changing Trends In The Content And Purpose Of Mexico's Intellectual Property Right Regime, Alan S. Gutterman 2014 University of Georgia School of Law

Changing Trends In The Content And Purpose Of Mexico's Intellectual Property Right Regime, Alan S. Gutterman

Georgia Journal of International & Comparative Law

No abstract provided.


The Google Art Project: An Analysis From A Legal And Social Perspective On Copyright Implications, Katrina Wu 2014 University of San Diego

The Google Art Project: An Analysis From A Legal And Social Perspective On Copyright Implications, Katrina Wu

Katrina Wu

The Google Art Project is an ambitious attempt by Google to curate worldwide artwork online in the highest resolution possible. Google accomplishes this by partnering with museums where museums provide access to art collections and Google provides the technology to capture high quality images. Under this existing model, Google places the burden of copyright clearances on museums and removes images from online if requested by copyright owners. An endeavor like the Google Art Project is not unprecedented however, when Google attempted to put the world’s books online under the Google Books Project, scanning millions of titles and offering snippets ...


The Rare Diseases Clinical Research Network And The Urea Cycle Disorders Consortium As Nested Knowledge Commons, Katherine J. Strandburg, Brett M. Frischmann, Can Cui 2014 NELLCO

The Rare Diseases Clinical Research Network And The Urea Cycle Disorders Consortium As Nested Knowledge Commons, Katherine J. Strandburg, Brett M. Frischmann, Can Cui

New York University Law and Economics Working Papers

Information sharing, collaboration, and community building among researchers, doctors, and patients are critical to rare disease research. It is very difficult to do clinical research on rare diseases; rareness means small numbers of patients, who usually are dispersed among geographically scattered medical centers. This chapter reports on a case study of the Rare Disease Clinical Research Network (RDCRN)’s Urea Cycle Disorders Consortium (UCDC) that employed the knowledge commons framework described in Chapter 1 of this volume. This case study is a step toward understanding whether and in what ways the RDCRN contributes to progress in combating rare diseases. Government ...


Legal But Unacceptable: Pallin V. Singer And Physician Patenting Norms, Katherine J. Strandburg 2014 NELLCO

Legal But Unacceptable: Pallin V. Singer And Physician Patenting Norms, Katherine J. Strandburg

New York University Law and Economics Working Papers

In intellectual property discourse, the edge tends to be defined by disputes between producers and consumers or between upstream and downstream innovators. This Chapter tells a different kind of story, about the edge between the patent-based innovation system and a user innovator community governed by norms of reputation and sharing. In this story, a cataract surgeon’s attempt to enforce his surgical method patent in the early 1990s brought forth a surprisingly strong response from the medical profession. The incident generated a reaffirmation of the norm in the AMA’s ethical principles and a political movement that led to Congress ...


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