Law Commons^™

Copyrights In Faculty-Created Works: How Licensing Can Solve The Academic Work-For-Hire Dilemma, Glenda A. Gertz

Washington Law Review

Many copyrightable works of university faculty members may be works-for-hire as defined under current U.S. copyright laws. Copyrights in works-for-hire are treated differently than copyrights in other works with respect to ownership, duration, termination rights, and requirements for transfer. Ambiguity over whether a specific faculty-created work is a work-for-hire creates legal uncertainties and potential future litigation about the initial ownership of the copyright, length of the copyright term, and termination rights which could impact all future transfers and licensing. Many universities have attempted to define ownership of faculty-created works through university policies. These policies are ineffective to alter the presumption …

Trouble For Trolling: Courts Reject Copyright Trolling Tactics, Megan R. Haslach

Washington Journal of Law, Technology & Arts

Copyright trolling has become a popular, but widely criticized tactic used by copyright holders to defend their intellectual property rights. One method involves rights holders selling their rights to infringed works to holding companies, as those companies may more easily file hundreds of suits against potential infringers at once. Another method involves rights holders themselves filing mass lawsuits against hundreds of BitTorrent users at once using their anonymous IP addresses, threatening to name the alleged infringers in a lawsuit if a settlement is not paid. However, in many recent cases, courts have shut down such tactics by invoking procedural deficiencies …

The Confusion Trap: Rethinking Parody In Trademark Law, David A. Simon

Washington Law Review

This Article suggests using existing doctrinal levers in trademark law to accommodate parodies in a more balanced fashion. To reach this conclusion, this Article examines the parody doctrine in U.S. trademark law using two lenses. The first lens is trademark doctrine itself. Here I explore the various approaches courts use to resolve trademark disputes involving parody. The other lens is copyright law. Through this lens I examine how courts deciding trademark parody disputes employ the Supreme Court’s most recent decision on parody in copyright, Campbell v. Acuff-Rose Music, Inc. (1994). I also use this decision to examine the relationship …

Shaking Out The "Shakedowns": Pre-Discovery Dismissal Of Copyright Infringement Cases After Comparison Of The Works At Issue, Evan Brown

Washington Journal of Law, Technology & Arts

In an era of copyright trolling, digital distribution, and widespread reappropriation of creative works, the specter of “shakedown” copyright infringement litigation looms larger than ever before. Some plaintiffs will hold the prospect of expensive and time-consuming discovery over alleged infringers to provoke settlement. In the wake of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, courts are more likely to consider the costs and time requirements of discovery when considering a defendant’s 12(b)(6) motion to dismiss. Several courts have recently indicated a willingness to grant motions to dismiss in copyright infringement cases when …

Criminal Defenses To Anti-Circumvention Charges For Modifying Video Game Consoles, Peter Dang

Washington Journal of Law, Technology & Arts

In United States v. Crippen, Matthew Crippen was charged with modifying Xbox 360 consoles for others for a fee. His modifications allowed the consoles to run unlicensed software in violation of the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA). In the first criminal trial arising from these provisions, the United States District Court for the Central District of California granted a motion in limine allowing the government to exclude evidence of fair use, holding that the DMCA provisions contained no fair use exception. After the prosecution abruptly dropped the case in December 2010, several questions remain unanswered: …

Gene Patents In Australia: A Game Theory Approach, Kate M. Mead

Washington International Law Journal

Gene patent validity is one of the most controversial issues in patent law. In Australia, the question of whether to eliminate human gene patents has reached both Parliament and the federal courts. Opponents of gene patents argue that gene patents increase the cost of healthcare and impede progress in genetic research. Proponents respond that gene patents are essential incentives for the biotech industry, and that Australia has an obligation to recognize them under the WTO-administered Treaty on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). Because patents require inventors to publically disclose their discoveries, Australia’s rejection of the gene patent system …

Update Needed? Digital Downloaders And The Innocent Infringer Defense, Colin Conerton

Washington Journal of Law, Technology & Arts

Over the past decade, the music industry has suffered unprecedented piracy and digital music has become increasingly prevalent on illegal websites. In response, the Recording Industry Association of America (RIAA) has filed lawsuits against many alleged copyright infringers who have illegally downloaded music from the Internet. A few of these alleged infringers, in an effort to reduce damages, claimed they were “innocent infringers.” Several courts ruled that the innocent infringer defense did not apply, based on 17 U.S.C. § 402(d), which precludes the defense if proper copyright notice appears on “phonorecords” (e.g., compact discs). The Supreme Court denied certiorari in …

Bidding On Trademarked Keywords In Search Engines: A Trademark Law Update, Ryan Baker

Washington Journal of Law, Technology & Arts

In March 2011, the Ninth Circuit modified the list of the most relevant factors for courts to consider when evaluating whether a business’s keyword bid on a competitor’s trademark causes a likelihood of confusion under the Lanham Act. Over ten years earlier, in Brookfield Communications v. West Coast Entertainment, the Ninth Circuit had held that using a competitor’s trademark in a website metatag for the purpose of achieving a more prominent place in search results creates “initial interest confusion” for consumers in violation of the Lanham Act. The Brookfield opinion formed what became known as the “Internet troika” test: …

Prometheus V. Mayo: Limited Implications For § 101 Jurisprudence, Jessica Belle

Washington Journal of Law, Technology & Arts

The United States Supreme Court recently confirmed the importance of the patent eligible subject matter inquiry under 35 U.S.C. § 101 when assessing whether a claimed invention (“claim”) is patentable in Mayo Collaborative Services v. Prometheus Laboratories, Inc. The Court also stressed that patents will not be issued to a claim that simply recites a law of nature unless there are additional steps that ensure the claim is sufficiently tailored to not preempt further use of the natural law. The Court’s decision shocked the patent law community. However, decisions by lower courts since have demonstrated that Prometheus has not …

Unchanging E-Discovery In The Patent Courts, Daniel B. Garrie, Yoav M. Griver

Washington Journal of Law, Technology & Arts

This Article analyzes the Federal Circuit’s Model Order Regarding E-Discovery in Patent Cases (the “Model Order”). The Article briefly describes the purpose behind the Model Order, describes its key provisions, analyzes the Model Order to identify some areas of continuing concern, and defines predictive coding to examine the impact, or lack thereof, on the Model Order. The Author concludes that, while it is beyond refute that the Model Order is an appropriate step toward controlling and managing e-discovery, the Model Order is only the first step. In this regard, several problems, as set forth below, can potentially arise when counsel …

Personalized Medicine, Genetic Exceptionalism, And The Rule Of Law: An Analysis Of The Prevailing Justification For Invalidating Brca1/2 Patents In Association Of Molecular Pathology V. Uspto, Kristen L. Burge

Washington Journal of Law, Technology & Arts

As medicine advances toward a more personalized model, the significance of genetic information is growing exponentially. While unlocking the genetic code has advanced the state of medicine, it has also reinvigorated the debate over the boundaries of patentable subject matter. The potential clash between having access to state-of-the-art medicine and protecting intellectual property investments came to a head in the case, Association of Molecular Pathology v. USPTO (“Myriad”). This Article analyzes the legal opinion rendered by the district court through the unique lens of genetic exceptionalism—a concept previously reserved to social science and public policy. Then, this Article …

The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor

Articles

The recent Supreme Court decision in Stanford v. Roche laid bare a faulty assumption of the federal research funding system. Government patent policy for federally funded research relies on "contractors"—the recipients of federal funding—to secure patent assignments from their employees. While this practice was routine for private firms and nonprofit research institutions, it was not for universities. This was in part based on the relationship of faculty and other researchers to universities that differed from industry employment relationships.

The roots of this faulty assumption can be traced to the seminal 1947 Biddle Report. Detailed monographs drafted as appendices to …

Colombia's Poetic World Of Authors' Moral Rights: Consideration On Imprisoning A Professor For Plagiarism, Carlos Castellanos Rubio, David Cromwell

Washington International Law Journal

The following is a translation of Carlos Castellanos Rubio’s article in the June 2011 edition of La Revista de Derecho, Comunicaciones y Nuevas Tecnologías, a Colombian legal periodical. The article discusses a 2010 Colombian Supreme Court of Justice decision that sentenced Professor Luz Mary Giraldo to two years in prison plus monetary and civil sanctions for plagiarizing a student’s thesis, “The Poetic World of Giovanni Quessep.” The decision has been controversial in Colombia for a variety of reasons, and many have accused the Court of judicial activism. Much of this criticism stems from the Court convicting Giraldo of violating …

Punishing The Pen With The Sword?: Colombia's New, Extreme, And Ineffective Punishment For Plagiarism, David Cromwell

Washington International Law Journal

The Colombian Supreme Court of Justice recently sentenced a professor to two years in prison for plagiarizing a student’s thesis, an extreme punishment by both comparative and Colombian standards. Despite its severity and global ramifications, the decision has received little attention within the English-speaking legal community. This comment provides an overdue analysis of the case and clarifies the current state of Colombian copyright law, both on the books and on the ground. The comment argues that while the case has clarified that plagiarism is a crime in Colombia, addressing academic plagiarism through criminal punishment will likely do little to deter …

Mandated Disclosure In Literary Hybrid Speech, Zahr K. Said

Articles

This Article, written for the Washington Law Review’s 2013 Symposium, The Disclosure Crisis, argues that hidden sponsorship creates a form of non-actionable influence rather than causing legally cognizable deception that mandatory disclosure can and should cure.

The Article identifies and calls into question three widely held assumptions underpinning much of the regulation of embedded advertising, or hidden sponsorship, in artistic communications. The first assumption is that advertising can be meaningfully discerned and separated from communicative content for the purposes of mandating disclosure, even when such advertising occurs in “hybrid speech.” The second assumption is that the hidden promotional aspects …

Fixing Copyright In Characters: Literary Perspectives On A Legal Problem, Zahr K. Said

Articles

This Article argues for the benefits of an interdisciplinary approach to the problem of copyright’s internal inconsistencies. Character jurisprudence under copyright law misaligns with cultural and literary conceptions of character. Intellectual property law has taken insufficient account of important discrepancies among legal, cultural, and literary theories of character. Literature helps articulate what is at work in the doctrinal tensions in copyright’s character jurisprudence over which kind of character, if any, to protect independently, and how much of it, if any, to protect separately from the text.

At the heart of the doctrinal confusion over the proper scope of protection for …

Only Part Of The Picture: A Response To Professor Tushnet's Worth A Thousand Words, Zahr Kassim Said

Articles

Professor Rebecca Tushnet’s recent article Worth a Thousand Words: The Image of Copyright elucidates a number of difficulties in copyright that flow from judicial failures to treat images consistently and rigorously. She argues that courts both assess copyrightability and evaluate potential infringement in ways that rely on a naïve understanding of the way artists create, and indeed, the way viewers receive works of art. The problem is particularly pronounced with respect to what Tushnet calls non-textual works because copyright law’s default to textuality means that the tools and methods that judges use misalign with the objects of their examination.

In …

Patent Prudential Standing, Xuan-Thao Nguyen

Articles

This Article is the first to focus on patent prudential standing. Patent prudential standing, a creation of the Federal Circuit, wastes precious resources and serves no sound policy goal. Under patent prudential standing, after many resources have been expended on the merits of a patent infringement case, parties face a reversal of course by the Federal Circuit’s ruling that the plaintiff, typically the exclusive licensee in a patent transaction, lacked standing to bring the case in the first place. Regardless that the plaintiff satisfies constitutional standing, the Federal Circuit propounds that the plaintiff must still meet patent prudential standing. The …