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Mgm V. Grokster, Malla Pollack
Mgm V. Grokster, Malla Pollack
Malla Pollack
This brief makes three aguments against copyright liability for Grokster. First, Petitioners’ request to close down offending technology is not supported by clear statutory authority. While the Court has power to create common law, in an area, such as this, where Congress has enacted detailed statutes, the Court’s common law power is minimal. Title 17 U.S.C. § 1201(c)(2) does not delegate authority for the Court to promulgate new common law. Second, In the absence of congressional action, the Copyright Clause of the Constitution sets the default position as a public right of access to copyrightable and patentable subject matter. The …
The Democratic Public Domain: Reconnecting The Modern First Amendment And The Original Progress Clause (A.K.A. Copyright And Patent Clause), Malla Pollack
Malla Pollack
Empirical investigation of public usage of the word "progress" in the United States of 1789 demonstrates that the word meant "dissemination." The original meaning of art. I, sec. 8, cl. 8, therefore, is that Congress has the right to grant only such temporally limited exclusive rights in writings and new technology as encourage the dissemination of knowledge and new technology to the population. This article explains the major differences between current United States positive intellectual property law and the logical dictates of this original constitutional meaning. Additionally, the article asserts that the original meaning of clause 8 supports modern calls …
International Intellectual Property Law And The Public Domain Of Science (With R. Dreyfuss), Graeme B. Dinwoodie
International Intellectual Property Law And The Public Domain Of Science (With R. Dreyfuss), Graeme B. Dinwoodie
Graeme B. Dinwoodie
The TRIPS Agreement can be read to reflect a static view of the structure of intellectual property law. In this paper, we address wither - and how - the TRIPS Agreement can, on the other hand, be read with more fluidity, and thus to allow adjustments in national intellectual property regimes designed to reflect the the dynamic nature of information production. To focus that inquiry, we concentrate on efforts to ensure a broader public domain for 'upstream' inventions by modifying various elements of US patent law. The paper considers three stylized examples and asks whether each approach could be adopted …
Trips And The Dynamics Of Intellectual Property Lawmaking (With R. Dreyfuss), Graeme B. Dinwoodie
Trips And The Dynamics Of Intellectual Property Lawmaking (With R. Dreyfuss), Graeme B. Dinwoodie
Graeme B. Dinwoodie
In prior work, we took up the question of the TRIPs Agreement's resilience to changes in domestic law. We argued that such resilience is necessary because information production is a dynamic enterprise. As new industries emerge and mature, nations must have the flexibility to modify their intellectual property rules to readjust the balance between public and private rights. In the course of that study, we examined approaches to TRIPs dispute resolution that could cabin the choices of legislation available to deal with emergent substantive problems, and which could distort the legal environment in which creative enterprises are conducted. In this …