Digital Commons Network^™

Real-Life Protection For Fictional Trademarks, Benjamin M. Arrow

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Copyright For Engineered Dna: An Idea Whose Time Has Come?, Christopher M. Holman

Christopher M Holman

The rapidly emerging field of synthetic biology has tremendous potential to address some of the most compelling challenges facing our planet, by providing clean renewable energy, nutritionally-enhanced and environmentally friendly agricultural products, and revolutionary new life-saving cures. However, leaders in the synthetic biology movement have voiced concern that biotechnology's current patent-centric approach to intellectual property is in many ways ill-suited to meet the challenge of synthetic biology, threatening to impede follow-on innovation and open access technology. For years, copyright and patent protection for computer software have existed side-by-side, the two forms of intellectual property complementing one another. Numerous academic commentators …

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

All Faculty Scholarship

‘Common law intellectual property’ refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls ‘pragmatic incrementalism’. It involves the use of pragmatic and minimalist techniques …

Copyright And The First Amendment: Comrades, Combatants Or Uneasy Allies?, Joseph P. Bauer

Joseph P. Bauer

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform and perform that work for a extended period of time. The First Amendment, on the other hand, proclaims that Congress “shall make no law ... abridging the freedom of speech or of the press,” thus at least nominally indicating that limitations on …

Social Semiotics In The Fair Use Analysis, H Brian Holland

H Brian Holland

Social Semiotics in the Fair Use Analysis

34,314 words

3,809 footnotes (Bluebook formatted)

This article presents an alternate theory of fair use, employing social semiotics as a process theory of meaning-making to frame the transformativeness inquiry. It is an argument for an expansion of fair use based not on theories of authorship or rights of autonomy, but rather a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does …

Social Semiotics In The Fair Use Analysis, H Brian Holland

H Brian Holland

Social Semiotics in the Fair Use Analysis

34,314 words (including 380 footnotes)

This article presents an alternate theory of fair use, employing social semiotics as a process theory of meaning-making to frame the transformativeness inquiry. It is an argument for an expansion of fair use based not on theories of authorship or rights of autonomy, but rather a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does this …

Social Semiotics In The Fair Use Analysis, H. Brian Holland

H. Brian Holland

Social Semiotics In The Fair Use Analysis, H. Brian Holland

H. Brian Holland

The Ninth Circuit Lands A "Perfect 10" Applying Copyright Law To The Internet, Robert A. Mcfarlane

Golden Gate University Law Review

The Ninth Circuit Court of Appeals issued three landmark decisions in 2007 that addressed how copyright protections apply to images that can be accessed over the Internet. Internet publisher Perfect 10 initiated these lawsuits based on allegations that its registered copyrights were infringed when unauthorized copies of its photographs appeared on third-party websites where they could be viewed, downloaded, and purchased without payment to Perfect 10. This Article briefly summarizes the facts of these three cases, explains the central holdings of each decision, and then concludes with a discussion of the collective impact that the three decisions have on enforcement …

Towards A Holistic Approach To Technology And Climate Change: What Would Form Part Of An Answer?, Estelle Derclaye, Abbe Brown

Estelle Derclaye

No abstract provided.

Strategies Under Pressure: Usa-China Copyright Dispute, Dexin Tian, Chin-Chung Chao

Communication Faculty Publications

Purpose – The purpose of this paper is to explore the Chinese and American efforts in keeping the balance of innovation and copyright protection, with an emphasis on China’s strategies under Western, especially American pressure. The research findings are expected to enhance mutual efforts from the two countries to protect copyright and boost innovation and facilitate genuine communication between both sides in their decade-long intellectual property right (IPR) disputes.

Design/methodology/approach – For data collection, this study adopted in-depth interviews of 45 participants who were either copyright holders as publishers and authors, or ordinary consumers in China. Under the theoretical guidance …

Making Virtual Copyright Work, Matthew R. Farley

Law Student Publications

This Article proposes measures that attempt to strike the balance between creation and access. The virtual-world community is not likely to persevere with the little copyright protection it currently enjoys. Creativity will dwindle and the rich, energetic settings that make virtual worlds so attractive to businesses and entertainers will follow suit. At the same time, because much of the creativity in virtual worlds is derivative in nature, virtual creators are also unlikely to benefit from strong copyright protections. Therefore, current interpretation of copyright law must be revisited and revised before applying it to virtual worlds. Part I details virtual worlds …

Equity And Efficiency In Intellectual Property Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

This article evaluates the Current US income tax regime governing intellectual property by focusing on the traditional principles of tax policy - tax fairness and efficiency. It highlights the shortcomings of the current tax system in fulfilling both of these tenets.

Intellectual Property Law - Dreamwerks Production Group, Inc. V. Skg Studio, Thomas J. Murphy

Golden Gate University Law Review

In Dreamwerks Production Group, Inc. v. SKG Studio the United States Court of Appeals for the Ninth Circuit evaluated whether the trademarks "Dreamwerks" and "Dream Works" were likely to confuse the reasonable consumer. Traditionally, a well-known, senior trademark user will sue a lesser-known, junior trademark user in order to protect its goodwill and prevent customer confusion. In Dreamwerks, however, the parties' positions were reversed, with the lesser-known, senior user, Dreamwerks Production Group, suing the better-known, yet junior user, SKG Studio. The Ninth Circuit held that, like every other new company, SKG Studio was required to select a name that would …

Copyright Protection In Factual Compilations: Feist Publications V. Rural Telephone Service Company "Altruism Expressed In Copyright Law", Sherrie Callis

Golden Gate University Law Review

In the wake of Feist, copyright practitioners are scrambling to determine what it all means, and how best to protect their client's intellectual property rights and interests. While different views are presented, an expression of dismay is common. This note will address the question: are the copyright practitioners justified in their concern? Part I will outline the Constitutional underpinnings of copyright protection. More specifically, this Part will discuss the two theories underlying the case law in the circuit courts of appeal, including a discussion of their legal philosophies. Part II will examine the Court's decision in Feist. Part III will …

Protecting Innovation In Computer Software, Biotechnology, And Nanotechnology, Dennis S. Karjala

Dennis S Karjala

In the 1970=s, paying virtually no attention to the fundamental distinction between patent and copyright subject matter, Congress decided to protect computer programs as a Aliterary work@ under copyright law. As a result, a work of technology for the first time was consciously placed under the protective umbrella of a statute designed for art, music, and literature. While the vulnerability of computer program code to cheap and easy verbatim copying supplied a policy basis for Aanti-copy@ protection of code, courts often analogized these congressionally anointed Aliterary works@ to broadly protected novels and plays rather than thinly protected technical specifications and …

Heart Pills Are Red, Viagra Is Blue… When Does Pill Color Become Functional? An Analysis Of Utilitarian And Aesthetic Functionality And Their Unintended Side Effects In The Pharmaceutical Industry, Signe H. Naeve

Signe H. Naeve

Abstract: As consumers we often associate pill color and shape with particular medications. Should that trade dress be protected beyond the expiration of the patent? Legal scholars have recognized some of the tensions and inconsistencies in court opinions when it comes to trade dress protection for pill shape and color. This article focuses on the specific tensions between requiring secondary meaning and non-functionality, as well as the potential of “genericide” when generic pharmaceuticals enter the market. Ultimately this article makes some novel recommendations to assess functionality at the time of FDA approval for the pharmaceutical and to have the FDA …

Flouting The Elmo Necessity And Denying The Local Roots Of Interpretation: "Anthropology's" Quarrel With Acta And Authoritarian Ip Regimes, Alexander S. Dent

Joint PIJIP/TLS Research Paper Series

This paper uses an anthropological definition of culture to examine the intensification of intellectual property policing, coupled with an expansion of its definition. These are ACTA’s aims. I argue that acts of sharing lie at the root of communication; humans must share in order to learn. Furthermore, symbols change their meaning as they circulate in different cultural contexts. Therefore, in denying the fundamental importance of sharing and local interpretation, ACTA will not only fail spectacularly as a policy document. It will also fuel a “war” on file-sharers, users of generic medicines, and manufacturers, sellers, and buyers of imitative goods and …

Public Interest Representation In Global Ip Policy Institutions, Jeremy Malcolm

Joint PIJIP/TLS Research Paper Series

This paper compares the institutional and procedural arrangements that a range of global institutions make for civil society representation and input into policy development processes on intellectual property issues. The context for this analysis comes from two sets of norms for multi-stakeholder public policy development that exist in other regimes of governance: those of the Aarhus Convention (for environmental matters), and those of the Tunis Agenda for the Information Society (for Internet governance). These global norms, along with the actual practices of the institutions involved in global governance of intellectual property rights, are then contrasted with the proposed new institutional …

Property's End: Why Competition Policy Should Limit The Right Of Publicity, Steven Semeraro

Steven Semeraro

The right of publicity is an intellectual property right that empowers celebrities to prohibit the unauthorized use of their names, images, and identities. Over the past two decades, academic commentators have presented powerful critiques of this right. Yet, legislatures and courts have turned a deaf ear, continuing to expand publicity rights. This article has two goals. First, it explains why the seemingly persuasive critique of the right of publicity has failed to influence law makers. The right’s critics claim that publicity cannot be property because the arguments used to justify actual property simply do not apply to publicity. When one …

Symposium Introduction - The Law Librarian's Role In The Scholarly Enterprise, Duncan E. Alford

Faculty Publications

No abstract provided.

Foreword: Advertising And The Law, Mark Bartholomew

Buffalo Law Review

This foreword to a special issue of the Buffalo Law Review provides an overview of seven articles addressing the intersection of advertising and law. The special issue stems from a November 2009 conference held at the University at Buffalo Law School. The foreword examines the particular difficulties in characterizing the relationship between advertisers, consumers, and the law. Advertisers promulgate certain symbolic meanings designed to induce consumption. Sometimes these meanings are contested through legal means yet consumers can only participate in advertising's regulatory apparatus indirectly. This results in a dynamic between advertiser and consumer that is difficult to define yet ubiquitous …

Advertising And Social Identity, Mark Bartholomew

Buffalo Law Review

This essay takes a stand in the brewing legal academic debate over the consequences of advertising. On one side are the semiotic democratists, scholars who bemoan the ability of advertisers to take control of the meanings that they create through trademark law and other pro-business legal rules. On the other side are those who are more sanguine about the ability of consumers to rework advertising messages and point to several safety valves for free expression existing in the current advertising regulation regime. My take on this debate is that the participants have failed to address the impact of advertising on …

Rights, Privileges And Access To Information, Alina Ng

Alina Ng

Protecting property rights in creative works represent a classic institutional approach to a specific economic problem of non-rivalness and non-excludability of information. By providing the copyright owner with an enforceable right against non-paying members of society, copyright laws encourage the production and dissemination of literary and artistic works to society for the purposes of learning. Implicit in the grant of property rights is the assumption that commercial incentives foster creative activity and productivity. In recent years, literary and artistic works have increasingly become the subject matter of exclusive property rights and control, particularly as new technologies emerge to provide users …

Language And Culture In Intellectual Property Law: A Book Review (Reviewing Jessica Reymann's "The Rhetoric Of Intellectual Property: Copyright And The Regulation Of Digital Culture), Jessica M. Silbey

Jessica Silbey

Jessica Reyman’s THE RHETORIC OF INTELLECTUAL PROPERTY: COPYRIGHT LAW AND THE REGULATION OF DIGITAL CULTURE is a book whose time has come. As a book about the rhetorical divide between the content industry and copyright activists, it analyzes the deep rifts between the language of incentives and exclusivity and the counterdiscourse of cooperation and the commons. And as a piece about the upheaval in the socio-legal landscape of intellectual property rights, it is in good company. There are multitudes of recent books and articles that seek a solution to the divide that animates disputes about owners and users (many of …

Masur - Isp Licensing Article, Steven R. Masur

vanessa m bonn

For years now, people have downloaded music over the internet without paying rights holders, and no industry solution has been universally adopted.

Amid a cacophony of discussion about new business models, DRM, three strikes you’re out laws and other solutions, one idea continues to gain support; ISP licensing, or charging people a fee on their internet service or mobile bill to be paid to rights holders for music downloaded over the internet. What is not discussed is exactly how this would work.

Steven Masur, outlines the law on ISP Licensing in the United States in his article, "Masur - The …

Die Institutionalisierung Von Wissensbeständen In Österreich. Die Diskrepanz Zwischen Wirtschaftlicher Realität Und Politik (The Institutionalization Of Knowledge In Austria: Coming To Grips Between Economic Reality & Policy), Roya Ghafele

Roya Ghafele

The University Act 2002 redefines ownership structures over intellectual property in Austria, thus paving the way for enhanced knowledge transfer and knowledge commercialization from public research institutions. This study discusses the various featers of the different models of generating and leveraging knowledge. It does so, by explaining the characteristics of technology markets and assesses the strengths and weaknesses of proprietary versus open knowledge generation from a perspective of new institutional economics. Particular emphasis is being put on the preservation of the public interest, deemed particularly important in the context of publicly funded research. The paper concludes by offering a rough …

Accounting For Intellectual Property?, Roya Ghafele

Roya Ghafele

Accounting constitutes a very specific form of language, which is highly standardized, mathematical in nature and seeks to uniformly and systematically describe events while avoiding expressions of individual creativity or explicit political positions. In this sense, accounting is a social, cultural and historical artefact rather than a natural or technical phenomenon and can therefore be viewed as the decisive instrument to create and maintain imagined business communities. On the balance sheet, IP experiences a specific form of authorization. It is represented in the discourse of accounting by ‘intangibles’, an imprecise term associated with the increasingly observed ‘gap between the market …

Machine-Or-Transformation Test Hit The Board: Patent-Eligible Subject Matter Following Bilski, Peter L. Ludwig

Peter L. Ludwig

In In re Bilski the Federal Circuit held that the machine-or-transformation test is the test to apply to determine subject matter eligibility of process claims under 35 U.S.C. § 101. The en banc majority opinion of the Federal Circuit introduced the machine-or-transformation test based upon Supreme Court precedent. The Supreme Court will soon hand down a ruling letting the public know if this is the test that will be applied to process claims. Although patent practitioners may have a test to apply, application of the test is far from certain.

Convergence And Incongruence: Trademark Law And Icann’S Introduction Of New Generic Top-Level Domains, Christine Haight Farley

Christine Haight Farley

This paper demonstrates how problematic convergences between Internet technology, the demands of a burgeoning e-market and trademark laws have created myriad issues in international governance of domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), the body that governs internet's infrastructure, recently approved a new policy that would allow it to accept applications for additional generic top-level domains (gTLDs). What ICANN contemplates is a uniform system to approve generic top level domains that is expected to have profound implications. Under this new plan anyone can apply for a new gTLD at any time and it could be literally …