Digital Commons Network^™

Fair Use In The Supreme Court: A Peek Behind The Scenes, Jonathan Band

Joint PIJIP/TLS Research Paper Series

Between 1975 and 1994, the Supreme Court considered five cases that involved fair use: Williams & Wilkins v. United States; Sony v. Universal City Studios; Harper & Row v. Nation Enterprises; Stewart v. Abend; and Campbell v. Acuff-Rose. The papers of the Supreme Court Justices that decided these cases show the Court as a profoundly human institution with the Justices often struggling to fashion opinions that could gain the support of a majority. The Justices clearly cared about the copyright merits, but they were also willing to compromise to achieve a certain result. In several …

Operational Agency: A Permeable Legal Fiction For Tracing Culpability In Ai Systems, Anirban Mukherjee, Hannah H. Chang

SMU Science and Technology Law Review

Modern artificial intelligence (AI) systems act with a high degree of independence yet lack legal personhood—a paradox that fractures doctrines grounded in human-centric notions of mens rea and actus reus. This Article introduces Operational Agency (OA)—a permeable legal fiction structured as an ex post evidentiary framework—and Operational Agency Graph (OAG)—a tool for mapping causal interactions among human actors, organizations, and AI systems. OA evaluates an AI’s observable operational characteristics: its goal-directedness (as a proxy for intent), predictive processing (as a proxy for foresight), and safety architecture (as a proxy for standard of care). OAG operationalizes that analysis by embedding these …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Suing The Ghost In The Medical Machine, Jason R. Cheek

SMU Science and Technology Law Review

Devices that autonomously diagnose medical conditions, with no human interaction, have arrived. These self-operating systems incorporate artificial intelligence (AI), and include machines that diagnose preventable blindness, as well as some that write radiology reports. These devices feature AI-integrated software to make diagnosis decisions traditionally made by humans who have received extensive medical training. Soon, AI-driven devices will autonomously make treatment decisions.

What happens when these autonomous medical systems harm a patient? At the moment, most would expect product liability law to provide a path to recovery. But AI oftentimes uses multiple complex inputs and approaches, including statistical probabilities, to reach …

The Apathy Economy: Patents, Advertising, And Consumer Indifference, Gavin Milczarek-Desai, Derek E. Bambauer

UF Law Faculty Publications

Patents function as signals as well as rights to exclude. They inform competitors, investors, employees, and consumers about the invention and its owner. How this information affects consumers is not well understood. Existing studies disagree about how advertising a product or service as patented, or patent pending, affects the price consumers will pay. This Article offers the first major empirical study of that question and finds that consumers behave with surprising rationality: they will not pay any price premium for a patented product. A product’s patent status conveys little information about whether it is superior to competing offerings. The results …

Copyright Disincentives, Thomas D. Haley

UF Law Faculty Publications

Over the last decade, a spate of high-profile copyright infringement lawsuits rattled the music industry. Controversy followed in the wake of multi-million-dollar damages awards, with criticism emanating from courts, scholars, and musicians alike. The basic logic of the critique is sound: the specter of such massive liability for small and inadvertent similarities disincentivizes the creation of new music. But the disincentive effect remains curiously under-theorized. This Article develops the literature’s first nuanced account of this disincentive theory, drawing on analysis of hundreds of copyright dockets as well as interviews with musicians to show that the feared disincentive has not come …

Crypto Money Laundering, Jiaying Jiang

UF Law Faculty Publications

The crypto ecosystem has become a new frontier for money laundering, with criminals exploiting its anonymous and pseudonymous features. This Article explores how money laundering operates in the crypto space and highlights emerging trends. It then examines the existing legal and regulatory framework and argues that its core weakness lies in its reliance on trusted intermediaries. This approach conflicts with the philosophy that shaped the emergence of the crypto industry-one grounded in disintermediation and decentralized trust. To address this tension, this Article demystifies decentralization, showing that it is not a binary condition but instead exists on a spectrum. Across the …

Fading Prestige: A Comparative Analysis Of Trademark Dilution's Impact On Luxury Fashion Brands In The United States And European Union, Pravalika Surakanti

IP Theory

The paper focuses on the concept of trademark dilution in relation to luxury fashion brands in international markets. Focusing on the United States and the European Union, it will look at the different approaches these regions take and how certain holdups in dilution law affect fashion companies’ global brand protection strategies. The paper looks at the application of the Federal Trademark Dilution Act, the EU Trademark Directive, and other essential laws to their respective jurisdictions’ cases to determine the trends of trademark dilution claims. It is found that both regions provide luxury fashion houses with substantial protection; however, the European …

Beyond Hipaa: The Ftc’S Expanding Role In Digital Health Privacy Enforcement, Sandhya Srinivasa

SMU Science and Technology Law Review

Consumer digital health platforms have become an increasingly prominent feature of modern health care, collecting and storing sensitive health information directly from users. Yet most of these applications operate outside the scope of the Health Insurance Portability and Accountability Act (HIPAA), creating a significant regulatory gap in the protection of personal health data. This case note examines how the Federal Trade Commission (FTC) has stepped into that gap by leveraging Section 5 of the FTC Act and the Health Breach Notification Rule (HBNR) to police privacy and data security practices among non-HIPAA-covered digital health platforms. Focusing on three landmark enforcement …

Patenting Ai Discoveries In Life Sciences: Overcoming Eligibility, Disclosure, And Inventorship Challenges, Dhohyung Kim, Ryan P. Hiler

IP Theory

The pharmaceutical and biotechnology industries face transformative opportunities through artificial intelligence and machine learning integration. However, these technological advances create distinct patent law complications that traditional drug development does not encounter. This article analyzes three interconnected obstacles: establishing eligible subject matter under 35 U.S.C. § 101, meeting disclosure standards under § 112(a), and determining proper inventorship when AI systems contribute substantially to claimed inventions. Drawing from recent USPTO guidance and Federal Circuit precedent, this analysis offers evidence-based strategies for patent practitioners, research scientists, and business leaders seeking robust intellectual property protection for AI-integrated pharmaceutical innovations.

Ai Can't Adlib: Theorizing An Improvisation Carveout In The Work For Hire Doctrine, Audrey Pope

IP Theory

AI-generated actors and digital replicas are an increasingly pressing concern in the filmmaking industry. While this technology is only one of the myriad ways that generative AI is set to change Hollywood, debates about its use reflect a throughline in debates about AI generally: Can this technology do a convincing, much less desirable, job of what humans have done before? This Article argues that, at least in one particular context, the answer is no. It focuses on the art of adlibbing. It explains the unique position of improvisation within copyright law and proposes one mechanism—a carveout in the work for …

Recentering Creativity In Copyright Law Discourse, Joshua Yuvaraj

IP Theory

Copyright discourse often centers around creativity; as a rationale for copyright, and as a threshold for copyright to subsist in songs, books, art and other creative works. Yet creativity remains an ethereal concept: if we do not know what it means, we cannot evaluate whether copyright law is promoting it, nor can we properly understand what it means for a work to be "creative" where that is required for copyright to subsist. An emerging strand of copyright discourse seeks to respond by examining scientific insights into the cognitive process of creativity to highlight how copyright law should be reshaped to …

How Ip Ends, David Fagundes, Aaron Perzanowski

Faculty Articles

Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentators offering imprecise and inconsistent formulations that obscure the rationales for these doctrines. This Article offers the first comprehensive taxonomy of IP’s terminal mechanisms, providing much-needed conceptual and definitional coherence. It then reveals the underappreciated policy leverage these mechanisms can deliver and …

Body Of Law: When Content Moderation Becomes Gender Oppression And Triggers Legal Consequences, Sarah E. Bahrenburg

Journal of Race, Gender, and Ethnicity

For as long as the Internet has existed, it has been used as a tool for good and as a tool for malice. However, there is a discrepancy between punishment for those maliciously invading individuals’ personal space and those posting consensual images of themselves for art or entertainment purposes (not to mention for work). Over the years, while attempting to create safe spaces for people to express themselves, the Internet has also created barriers to individuals doing just that. The Internet and the laws surrounding exposure therein have become increasingly misogynistic and anti-women’s sexual freedom. The laws encompassing safety on …

Copyright Protection Or Media Suppression? The Digital Millennium Copyright Act's Impact On News Media And Journalism, Alenis Olivera

FIU Law Review

When copyright law collides with press freedom, which one survives the takedown? The Digital Millennium Copyright Act (DMCA) was once hailed as a necessary adaptation to copyright protection issues in the digital age. But now, nearly three decades since its incorporation into the Copyright Act, the DMCA has continued to cast a shadow over the journalism industry. The DMCA’s notice-and-takedown system, originally designed to protect copyright owners by allowing for quick removal of infringing content, has become a mechanism that risks suppressing lawful reporting and undermines the First Amendment’s guarantee of a free press. This Comment will explore how the …

The Stored Communications Act At 40: Re-Examining Ecs And Rcs In The Age Of Ai, Shanzay Pervaiz

Joint PIJIP/TLS Research Paper Series

Shanzay Pervaiz, Senior Legal Researcher, examines the Stored Communications Act (SCA) almost forty years after its enactment, focusing on how its core definitions of “electronic communication service” (ECS) and “remote computing service” (RCS) play a central role in regulating domestic and global government access to data. The definitions still shape key U.S. authorities such as FISA Section 702, the CLOUD Act, and international instruments governing law enforcement access to data, including the Budapest Convention and the United Nations Convention on Cybercrime. The paper also looks at the legislative history of the SCA, how U.S. courts define ECS and RCS, and …

Inconsistencies At The International Trade Commission And The United States Federal District Courts, Christine Dedoulis

Catholic University Journal of Law and Technology

This article will analyze Section 337 of the Tariff Act of 1930, under which the International Trade Commission (Commission) conducts unfair import investigations, as it applies to patent infringement cases. Further, this article will explore different outcomes regarding parallel litigation at the Commission and District Courts, including what remedies are available and the effect of duplicative and inconsistent determinations on the patentee. In light of these comparisons, this article will provide suggestions on how to minimize inconsistencies between the Commission and District Courts, with particular emphasis on determining if some middle ground exists and if a classification system could be …

Judging Art: Copyright, Creativity, And The Meaning Of Art In The Eyes Of The Law, Scott J. Sholder

Marquette Intellectual Property & Innovation Law Review

This Article examines how copyright law defines creativity and authorship in an era of rapidly evolving artistic expression, with particular emphasis on generative artificial intelligence. Tracing the development of U.S. copyright law from its constitutional foundations through modern case law, the author explores the legal standards governing originality, fixation, human authorship, and the idea-expression dichotomy. The Article analyzes how these principles have been applied to both traditional and emerging forms of art, including conceptual, performance, appropriation, digital, and AI-generated works. It also examines recent guidance from the U.S. Copyright Office and evolving judicial decisions addressing the copyrightability of AI-assisted and …

The Public Franchise Tradition As A Limit On Patent Takings, Laura E. Dolbow

Publications

A longstanding debate exists over whether patents are forms of “private property” that the Takings Clause protects. Recently, in a different context, the Supreme Court stated that a patent is a specific form of property: a public franchise. Several scholars have argued that the public franchise characterization means patents are not protected by the Takings Clause at all. This Article identifies another potential implication of the public franchise framing. It argues that even if patents are viewed as protected by the Takings Clause, the public franchise framing suggests that the scope of that protection should be quite narrow.

To explore …

Caught In The Web: The Resolution Of The Internet Service Provider Contributory Copyright Infringement Split, Olivia F. Johnson

Cybaris®

No abstract provided.

Should I Have Held Your Hand Or Can You Hold Your Own?: The Growing Confusion Over The Copyright Powers Songwriters Maintain Over Their Works, Mark Galinovsky

Cardozo Law Review de•novo

As online streaming and digital downloads continue to dominate the music business, songwriters are increasingly left to fight each other for tiny cuts of the profits. Additionally, a lack of consistent judicial rules and standards when adjudicating copyright infringement claims make litigation results uncertain, causing even potentially victorious defendants to agree to expensive settlements and frivolous grants of songwriting credits. This Note argues that in order to protect the future creative output of the music industry, judges and legislators should prioritize the dwindling power songwriters have over control of their original works of authorship.

Music Is Medicine: Addressing Legal Challenges In An Emerging Clinical Practice, Basha Goldwater

Fordham Intellectual Property, Media and Entertainment Law Journal

Music is universally experienced, and most will recognize its profound personal impact; yet, music’s broader influence on society is yet to be fully explored. People may listen to music when they are sad, when they are seeking motivation, or as a way to relax. However, music extends beyond expression, entertainment, and an outlet for emotions. Research indicates that music can offer substantial benefits to patients in a plethora of medical situations.

Part I of this Note will explain the usefulness of music as medical care, its advantages, and the broad range of institutional support music-based medicine has garnered. Part II …

The Protection Of Geographical Indications Under Comparative Lens: Whether Law Artificially Creates Scarcity Of Goods, Domenico Di Micco

FIU Law Review

The economic principles of supply and demand dictate that market prices are contingent on the conditions under which supply and demand converge. Within this theoretical framework, the concepts of scarcity and abundance assume paramount significance. When goods are scarce, prices tend to escalate, while in cases of abundant supply, prices tend to decline. But what factors determine scarcity and abundance? In many cases, scarcity is inherent to the nature of the commodity (for example, diamonds are rarer than common stones). In other cases, such as geographical indications, scarcity is constructed through the legal denomination associated with the commodity, thereby creating …

Digital Dialectic: Why Every “Ai-Generated” Work Has A Human Author, Lea Bishop

FIU Law Review

Are ChatGPT and Midjourney tools or creators? Ownership of billions of AI-assisted creative outputs hangs in the balance. Copyright scholars have long debated whether an autonomous artificial intelligence could qualify as an author, but this remains a hypothetical question. Despite widespread application of the term “AI” to software products of the 2020s, autonomously creative artificial intelligence still does not exist. Today’s commercial AI products—such as ChatGPT, Midjourney, Dall-E, Copilot, Gemini, Claude, Suno, Perplexity, and Lumo—are simply the newest generation of computer software. They do not qualify as “artificial intelligence” in either the scientific or science fiction senses. They are mere …

History And Tradition In First Amendment Intellectual Property Cases: A Critique, Rebecca Tushnet

Marquette Intellectual Property & Innovation Law Review

This Article examines the increasing reliance on "history and tradition" as a method of constitutional analysis in First Amendment cases involving intellectual property. The author argues that, although the Supreme Court has recently embraced this methodology in other constitutional contexts, particularly Second Amendment jurisprudence, it has long relied on similar reasoning to uphold intellectual property rights against First Amendment challenges. Through an analysis of cases involving the right of publicity, copyright, and trademark law, the Article contends that the Court has used historical analogies to justify expanding intellectual property protections while giving insufficient consideration to their impact on free expression. …

What Makes Federal Circuit Opinions Influential?, Jason Reinecke

Marquette Law Review

This Article provides the results of an empirical study assessing the determinants of a patent opinion’s influence at the Federal Circuit. I draw on a novel, largely hand-coded dataset of nearly 2,700 decisions issued by the Federal Circuit over a period of more than seven years. I find that some judges are more likely than others to issue binding opinions favoring patent owners (and others favoring patent challengers). In addition, drawing on case citation counts, I find limited evidence that extremely pro-patentee panels tend to write slightly more influential pro-patentee precedential decisions. Perhaps most striking and surprising, however, is how …

Developer Perspectives On Licensing And Copyright Issues Arising From Generative Ai For Software Development, Trevor Stalnaker, Nathan Wintersgill, Oscar Chaparro, Laura A. Heymann, Massimiliano Di Penta, Daniel M. German, Denys Poshyvanyk

Faculty Publications

Despite the utility that Generative AI (GenAI) tools provide for tasks such as writing code, the use of these tools raises important legal questions and potential risks, particularly those associated with copyright law. As lawmakers and regulators respond to these questions, the views of users can offer relevant perspectives. In this article, we provide: (1) a survey of 574 developers on the licensing and copyright aspects of GenAI for coding, as well as follow-up interviews; (2) a snapshot of developers’ views at a time when GenAI and perceptions of it were rapidly evolving; and (3) an analysis of developers’ perspectives, …

Human Rights On Pause: Assessing The Cbp Digital Metering Process And Obligations Of Non-Refoulement Beyond Borders, Brandon Delia

Journal of Law, Technology, & the Internet

Migrants are once again being told to wait in line before seeking their right to the asylum process. In 2023, the Biden administration introduced the CBP One app as a new requirement for asylum seekers approaching the US-Mexico border. Not long after, it evolved into a strict legal prerequisite where without a CBP One appointment, migrants faced either immediate turnbacks or, if they nonetheless attempted to seek asylum defensively after entry, expedited removal and a potential five-year bar on reentry. Those who managed to register often waited months in cartel-controlled border towns, risking extortion, kidnapping, or worse. Paired with CBP’s …

Artificial Intelligence And Automated Decision-Making In Employment: The Future Of The Embattled Disparate Impact Theory Of Discrimination Under Title Vii, Daniel S. Alcorn

Journal of Law, Technology, & the Internet

Artificial intelligence now makes core employment decisions—from resume screening and video interviews to promotion and termination—yet Title VII’s disparate impact doctrine was built for paper tests, not black-box models. This Article argues that, while under attack by the Trump Administration and a minority of the U.S. Supreme Court, disparate impact remains indispensable but increasingly inadequate without adaptation. We show how algorithmic opacity frustrates causation, vendor delegation diffuses liability, predictive-accuracy claims distort “business necessity,” and trade-secret barriers impede proof of less-discriminatory alternatives. Drawing on emerging U.S. and comparative regimes, we propose a practical toolkit: (1) treat the algorithmic system as the …

A Law Enforcement Paradigm For The New Form Of Money, Jim Harper

Journal of Law, Technology, & the Internet

Over the last two centuries, transfers of money have evolved from movements of tangible things to digital communications events. Over the last half-century, financial surveillance law has taken root. The product of the two trends is a comprehensive, global financial surveillance regime that has substantial costs in both dollar terms and in values such as privacy, free speech, and autonomy. Those costs appear to vastly outstrip the benefits of such surveillance. Along with its infirmity as policy, general financial surveillance stands on shaky constitutional ground in the United States. It impedes the full development of digital forms of money and …