Digital Commons Network^™

How A Changing Nation Is Fueling The Rise Of Trade Secret Litigation, David S. Almeling

David S. Almeling

Reports of pilfered trade secrets have grown increasingly common, and as recent studies demonstrate, trade secret litigation is on the rise. A 2010 study of the federal courts shows that trade secret litigation has grown exponentially while litigation in general has decreased. And a 2011 study of state courts shows that trade secret litigation is increasing at a faster rate than the rate of litigation in general. This essay asks: Why? Why is trade secret litigation more prevalent than ever? This essay posits — for the first time — explanations for the fact that trade secrets are increasingly important to …

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 …

Neutrality And Diversity In The Internet Ecosystem, Andrea Renda

Andrea Renda

The public policy approach to the Internet has become more and more complex as several markets – including fixed and mobile communications, media and content, IT – converge into one single Internet ecosystem. As in all ecosystems, zones and domains depend on each other, and there is no possibility of touching one layer without affecting all others. This paper reflects on the economics of the Internet and emerging business models, and comments on the current debates in each of the layers of modern all-IP architectures, from the unbundling of network elements to net neutrality and the emerging discussion on search …

Real Copyright Reform, Jessica Litman

Jessica Litman

A copyright system is designed to produce an ecology that nurtures the creation, dissemination and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this article, I explore how the current copyright …

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 …

Localism As A Production Imperative: An Alternative Framework To Promoting Intangible Cultural Heritage And Expressions Of Folklore, Jon M. Garon

Jon M. Garon

In the United States, the policy of localism – the legislative goal of fostering local community expression and competence to deliver local content – finds its home in the Telecommunications Act rather than either the Copyright Act or Trademark Act. Other nations have introduced values of localism into trade policy, content distribution rules, and international efforts to protect intangible cultural heritage and expressions of folklore.Jurisdictions in every continent are struggling to address the pressures of globalism through efforts to protect indigenous peoples’ and minority communities’ languages and culture. These efforts take many forms. Nations have introduced efforts to protect these …

Patriotism For Profit And Persuasion: The Trademark, Free Speech, And Governance Problems With Protection Of Governmental Marks In The United States, Malla Pollack

Malla Pollack

“Governmental marks” are words or phrases which involve the identity of a social group that is partly defined in terms of its citizenship in a government-institution. The power to name a social group (especially one from which exit is difficult) confers enormous power over the group’s members. Legally classifying such words as trademarks commodifies them, increasing the namer’s power: both by giving the word monetary value and by providing the mark-holder with the legal right to prevent others from manipulating the word’s meaning.

Destination marketing employing governmental marks has become ubiquitous. The municipal governments of both New York City and …

The Theorem Of The Social Value Of Inventions And The Happiness Machine Patent Syndrome, Nuno P. Carvalho

Nuno P Carvalho

The higher the social value of inventions the lower is the proportion of revenue that inventors are able to capture from their exploitation. This formulation is a hypothesis that stems from the observation of facts: most patents covering highly valuable inventions are subject to attacks that are difficult to explain. Those attacks have social causes, such as the monopoly stigma, the urge for penance and the idea of just price. Together they form the happiness machine patent syndrome. There is no evidence making a definitive case for the theorem above, and yet observation of the difficulties that have insistently haunted …

Transborder Licensing: New Frontier For Job Creation, Andrea L. Johnson

Andrea L Johnson

Abstract: TRANSBORDER LICENSING: NEW FRONTIER FOR JOB CREATION http://ssrn.com/abstract=1675285 (September, 11 2010). Available at SSRN: http://ssrn.com/abstract=1675286 By Professor Andrea L. Johnson, alj@cwsl.edu California Western School of Law 225 Cedar St. San Diego, CA 92101 (619) 525-1474 This article makes the case that the best opportunities for creating new jobs in the United States will come from transborder licensing. Transborder licensing involves the creation and disposition of intellectual property (IP), such as copyrights, patents, trademarks, and trade secrets, across geographical boundaries. Licensing is a contractual agreement in which the owner of IP, called the licensor, agrees to permit or restrict the …

Ending The Power To Say No: The Case For Extending Compulsory Licensing To Cover Digital Music Reproduction And Distribution Rights, Patrick A. Mckay

Patrick A McKay

This paper argues that the recording industry has abused its power to deny uses of copyrighted music and has failed to satisfy the constitutional purpose of copyright of providing for the public benefit. As a result, this power should be removed and replaced with a compulsory license system similar to the Section 115 Reform Act of 2006 (SIRA), which would create a blanket collective license covering digital reproduction and distribution rights for musical works. Additionally, in order to remove the cloud of uncertainty which surrounds music used in user-generated videos, Congress should consider extending the compulsory license regime to cover …

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 …

Russia & Legal Harmonization: An Historical Inquiry Into Ip Reform As Global Convergence And Resistance, Boris N. Mamlyuk

Boris Mamlyuk

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with a specific examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence and tension between state ideology, positive law, and “law in action.” The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has been one of the largest hurdles for Russia’s prolonged accession to the WTO, these historical precedents may help to explain the apparent theoretical or political disconnect between the WTO and Russia. If Russian policymakers …

Tools For Survival: Proposing A Research Exemption For Agricultural Biotechnology Patents To Alleviate Global Hunger, Raj Paul

Raj Paul

Global food insecurity continues to hamper Third World countries at an alarming rate, and is of particular concern in the aftermath of the Global Economic Crisis and recent world-wide drought. Developed nations and international organizations have made certain efforts to address world hunger, but one modern breakthrough offers a unique ability to ameliorate this problem: genetically modified food. With the prospect of tailoring crop seeds to have such favorable traits as high yield and drought resistance, the possibilities seem captivating. And indeed, nonprofit organizations and other institutions in recent years have expended considerable effort and expense towards using GM technology …

Screen Credit And The Writers Guild Of America, 1938-2000: A Study In Labor Market And Idea Market Intermediation, Catherine L. Fisk

Catherine Fisk

This Article explores how the Writers Guild of America facilitates the labor market for writers and the market for ideas, scripts, and treatments for film and TV. The Article, which is based on research in the archives of the Writers Guild not available to the public, argues that the Guild has survived conditions that might lead to de-unionization because of the value it provides all types of writers and all types of employers in managing the labor and idea markets. In particular, the Guild administers two private intellectual property rights systems – the screen credit system and the script registry …

An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter

Thomas F. Cotter

In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Essay proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …

Non-Obviousness In Patent Law: Impact Of New Scientific Discoveries On In Re Kubin, Ryan C. Smith

Ryan C Smith

The Federal Circuit made a recent controversial decision in In Re Kubin in applying the KSR v. Teleflex obviousness criteria to the field of biotechnology. As the legal world contemplated the implications of KSR on the field of biotechnology, a new scientific discovery was made which addresses the fundamental logic of an element of Kubin. The impact of the new scientific discovery on In Re Kubin suggests (a) Kubin should be limited to its facts, and (b) the scope of subject matter in the non-obvious “obvious to try” category should be significantly expanded, enabling greater patentability on new biotechnology inventions …

Avatar Experimentation: Human Subjects Research In Virtual Worlds, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within such worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world, because the experience of the virtual world is "real" to them. The …

Global Patenting And Its Effect On The Optimal Patent Term In The United States, Wesley D. Markham

Wesley D Markham

Patent globalization has arrived. Procedurally, the Patent Cooperation Treaty (PCT) makes it easy for firms to seek patent protection in many countries around the world. Substantively, the TRIPS Agreement has upped the level of patent protection available in these countries. One critically important issue is how patent law in the United States should respond to the increased globalization of the patent system. Specifically, should we reduce the patent term in the United States to compensate for the enhanced potential for patent exclusivity outside the United States? In this article, I develop a new metric which I call the “global patent …

Why Intellectual Property Rights In Traditional Knowledge Cannot Contribute To Sustainable Development, Dennis S. Karjala

Dennis S Karjala

This paper makes a simple point: If sustainability (however defined) is the goal, intellectual property rights in traditional knowledge do not move us toward the achievement of that goal. The reason is that the only social policy justification for recognizing intellectual property rights at all is that they supposedly serve as an incentive to create socially desirable works of authorship and inventions. They are not and should serve as a reward for past achievements. In other words, outside of their usual incentive function of promoting new technology, intellectual property rights in traditional knowledge have no role to play in the …

What’S Privacy Got To Do, Got To Do With It: Why Information Should Drop Privacy And Seek Legal Love On Its Own Terms, Christopher E. Paxton

Christopher E Paxton

My paper argues that because the privacy interests at stake are so varied and so difficult to pin down, privacy law in the United States should shift away from privacy qua privacy and focus on the protection of information by adopting something akin to the European Union’s Data Protection and Database Directives.

Interpretation And The Internet, Cameron J. Hutchison

Cameron J Hutchison

Almost twenty years have passed since the advent of the internet. The revolutionary nature of the technology is no longer in doubt. It has transformed the way we communicate, recreate, carry on business and conduct our affairs. Despite the internet’s “differentness”, courts have proven adept at adapting extant law to the features and demands of this new technology. In this paper, I propose in some detail the manner in which courts should interpret law and (just as importantly) internet facts in connection with broadly stated legal rules. My basic argument is that courts must be appreciate both the totality of …

E-Elections: Time For Japan To Embrace Online Campaigning, Matthew J. Wilson

Matthew J. Wilson

Asia has embraced the Internet and social media. Japan and South Korea rank among the world’s leaders in technological innovation and Internet penetration. China boasts over 420 million Internet users, and other Asian countries have experienced the widespread acceptance of online technologies. With the rapid ascendency of the Internet and social media, however, Asian countries have sometimes struggled with striking the proper balance between individual rights and the legal regulation of online activities. One prime example of such struggle involves the clash between Japan’s election laws and individual political freedoms.

Although Japan generally subscribes to democratic traditions and the principle …

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 …

When Too Much Is Enough: Addressing The Rising Number Of Open Source Software Licenses And Their Effect On Innovation, Natalie G. Banach

Natalie G Banach

This article addresses a growing problem in the open source software industry, namely license proliferation. The open source software movement is revolutionary in that its participants rely on a creative licensing scheme to foster innovation in the face of increasing restrictions in copyright law. Nevertheless, the impressive strides the open source software community has taken is now threatened by the growing number of complex and incompatible licenses. This article proposes that the solution lies in the application of a framework that every software programmer and legal practitioner can use to better understand the licenses and ultimately propel innovation in the …

Separation Of Ownership And The Authorization To Use Personal Computers: Unintended Effects Of Eu And U.S. Law On It Security, Lukas Feiler

Lukas Feiler

It used to be that owners of personal computers typically had full and exclusive authorization to use their computers. This was primarily due to the open architecture introduced with the IBM Personal Computer in the 1980s and proliferated in the 1990s. Recent developments bear evidence of an increasing disconnection between the concept of ownership and that of authorization to use a personal computer (including mobile devices such as notebooks, sub-notebooks, cell phones, smartphones, and PDAs): interference with the closed architecture employed by Apple’s iPhone is claimed to constitute a violation under 17 U.S.C. § 1201; the EULA for Windows 7 …

Technology & Copyright Law-The Nfl’S Ability To Protect Its Copyrights In Game Broadcasts, Sonali P. Chitre

Sonali P Chitre

Copyright is critical to protecting sports broadcasts and new technology has evolved to disseminate these broadcasts to the many people that enjoy professional sports. Because of new digital rights in the copyright statute, the NFL has very strong copyright protections that cover Internet, satellite, television, and radio licensing of its broadcasts. This article analyzes the NFL’s “blackout” rule in the context of growing technology and increased copyright protection.

In NFL v. McBee & Bruno’s, Inc., the Eighth Circuit held that defendant sports bar’s display of “blacked-out” games did not fall under an exemption regarding common use since satellite dishes were …

From Open Source Software To Open Patenting: What’S New In The Realm Of Openness?, Mariateresa Maggiolino, Maria Lillà Montagnani

mariateresa maggiolino

This paper analyses the emerging Open Patenting (OP) phenomenon within the boundaries of the Open Source (OS), and against the backdrop of the Open Source Software (OSS). We argues that OP like OSS can be a flexible legal tool capable of shaping the existing IP rules thereby facing some of the limits that the traditional paradigms used for explaining innovation and managing IPRs bear. Further, we maintain that IP differently from OSS is still a kaleidoscopic phenomenon whose boundaries are unsettled and very much affected by the industry to which the subject matter (or innovation) belongs. Part I discusses the …