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Articles 1 - 30 of 66
Full-Text Articles in Law
Correlative Obligation In Patent Law: The Role Of Public Good In Defining The Limits Of Patent Exclusivity, Srividhya Ragavan
Correlative Obligation In Patent Law: The Role Of Public Good In Defining The Limits Of Patent Exclusivity, Srividhya Ragavan
Srividhya Ragavan
In light of the recent outrageous price-spiking of pharmaceuticals, this Article questions the underlying justifications for exclusive rights conferred by the grant of a patent. Traditionally, patents are defined as property rights granted to encourage desirable innovation. This definition is a misfit as treating patents as property rights does a poor job of defining the limits of the patent rights as well as the public benefit goals of the system. This misfit gradually caused an imbalance in the rights versus duties construct within patent law. After a thorough analysis of the historical and philosophical perspectives of patent exclusivity, this Article …
U.S. Patent Extraterritoriality Within The International Context, Amy L. Landers
U.S. Patent Extraterritoriality Within The International Context, Amy L. Landers
Amy L. Landers
Nontechnical Disclosure, Jonas Anderson
Nontechnical Disclosure, Jonas Anderson
J. Jonas Anderson
The Movement For Open Access Law, Michael W. Carroll
The Movement For Open Access Law, Michael W. Carroll
Michael W. Carroll
My claim in this contribution to this important symposium is that the law and legal scholarship should be freely available on the Internet, and copyright law and licensing should facilitate achievement of this goal. This claim reflects the combined aims of those who support the movement for open access law. This nascent movement is a natural extension of the well-developed movement for free access to primary legal materials and the equally well-developed open access movement, which seeks to make all scholarly journal articles freely available on the Internet. Legal scholars have only general familiarity with the first movement and very …
Fixing Fair Use, Michael W. Carroll
Fixing Fair Use, Michael W. Carroll
Michael W. Carroll
The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another’s copyrighted expression under certain circumstances. The doctrine’s extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another’s copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a …
Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll
Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll
Michael W. Carroll
In eBay v. MercExchange, the Supreme Court correctly rejected a one-size-fits-all approach to patent injunctions. However, the Court's opinion does not fully recognize that the problem of uniformity in patent law is more general and that this problem cannot be solved through case-by-case analysis. This Essay provides a field guide for implementing eBay using functional analysis and insights from a uniformity-cost framework developed more fully in prior work. While there can be no general rule governing equitable relief in patent cases, the traditional four factor analysis for injunctive relief should lead the cases to cluster around certain patterns that often …
Brief For Amicus Curiae Law Professors And Scholars In Support Of Apellee, In Authors Guild V. Google, Inc., Michael W. Carroll, Brandon Butler, Meredith Jacob
Brief For Amicus Curiae Law Professors And Scholars In Support Of Apellee, In Authors Guild V. Google, Inc., Michael W. Carroll, Brandon Butler, Meredith Jacob
Michael W. Carroll
No abstract provided.
Creative Commons As Conversational Copyright, Michael W. Carroll
Creative Commons As Conversational Copyright, Michael W. Carroll
Michael W. Carroll
Copyright law's default settings inhibit sharing and adaptation of creative works even though new digital technologies greatly enhance individuals' capacity to engage in creative conversation. Creative Commons licenses enable a form of conversational copyright through which creators share their works, primarily over the Internet, while asserting some limitation on user's right with respect to works in the licensed commons. More specifically, this chapter explains the problems in copyright law to which Creative Commons licenses respond, the methods chosen, and why the machine-readable and public aspects of the licenses are specific examples of a more general phenomenon in digital copyright law …
A Realist Approach To Copyright Law's Formalities, Michael W. Carroll
A Realist Approach To Copyright Law's Formalities, Michael W. Carroll
Michael W. Carroll
Rejecting the conventional story that formalities in copyright law were abolished by the Berne Convention, this Article demonstrates that privately administered systems of formalities play a significant role in the administration of copyright law worldwide. Indeed, they must because copyright is designed to support a transaction structure which requires rightsholders who seek to attract licensing partners to go through some formal step to identify themselves and the works in which they have a legal or beneficial interest. Canvassing the landscape of mandatory and voluntary public and private systems of formalities, this article argues that: (1) national policymakers retain more policy …
Creative Commons And The New Intermediaries, Michael W. Carroll
Creative Commons And The New Intermediaries, Michael W. Carroll
Michael W. Carroll
This symposium contribution examines the disintermediating and reintermediating roles played by Creative Commons licenses on the Internet. Creative Commons licenses act as a disintermediating force because they enable end-to-end transactions in copyrighted works. The licenses have reintermediating force by enabling new services and new online communities to form around content licensed under a Creative Commons license. Intermediaries focused on the copyright dimension have begun to appear online as search engines, archives, libraries, publishers, community organizers, and educators. Moreover, the growth of machine-readable copyright licenses and the new intermediaries that they enable is part of a larger movement toward a Semantic …
Forward, Jonas Anderson
Chapter Three: Intellectual Property, Tracy Mitrano
Chapter Three: Intellectual Property, Tracy Mitrano
Tracy Mitrano
No abstract provided.
The Elusive "Marketplace" In Post-Bilski Jurisprudence, Andrew Chin
The Elusive "Marketplace" In Post-Bilski Jurisprudence, Andrew Chin
Andrew Chin
The Supreme Court’s 2010 decision in Bilski v. Kappos appears to have provided inadequate guidance to the courts and the Patent Office regarding the scope of the abstract-ideas exclusion from patentable subject matter. Federal Circuit Chief Judge Randall R. Rader, however, appears to have found in that decision a clear vindication of his own view that the machine-or-transformation test is incorrectly grounded in “the age of iron and steel at a time of subatomic particles and terabytes,” and thus fails, for example, to accommodate advances in “software [that] transform[] our lives without physical anchors.” Chief Judge Rader has subsequently authored …
On Abstraction And Equivalence In Software Patent Doctrine: A Response To Bessen, Meurer And Klemens, Andrew Chin
On Abstraction And Equivalence In Software Patent Doctrine: A Response To Bessen, Meurer And Klemens, Andrew Chin
Andrew Chin
No abstract provided.
Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet
Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet
David R Hansen
No abstract provided.
Technological Neutrality: Recalibrating Copyright In The Information Age, Carys Craig
Technological Neutrality: Recalibrating Copyright In The Information Age, Carys Craig
Carys Craig
This article aims to draw the connection between how we conceptualize legal rights over information resources and our capacity to develop technologically neutral legal norms in the information age. More specifically, it identifies and critically examines three competing approaches to the idea of technological neutrality apparent in copyright jurisprudence. Ultimately, it is argued that true technological neutrality requires not simply the seamless expansion of legal rights into new technological contexts, but the careful, contextual recalibration of rights and interests in light of shifting values and changing circumstances. As a normative principle, technological neutrality in copyright law thus demands a nuanced …
Who Gets Paid? Section 365(N) Royalty Payments Under "Zombie Licenses" After A Sale Of Ip, Christopher G. Bradley
Who Gets Paid? Section 365(N) Royalty Payments Under "Zombie Licenses" After A Sale Of Ip, Christopher G. Bradley
Christopher Bradley
This short article discusses the Bankruptcy Code's unusual treatment of certain intellectual property licenses. First, it gives a brief overview of § 365(n) of the Bankruptcy Code. It then provides a short analysis of a difficult but important question: If a licensee of a debtor’s intellectual property opts to retain its license rights under § 365(n), who should receive the stream of licensing payments in the event that the IP is sold: the buyer of the IP, or the debtor in bankruptcy? The answer that has emerged in some of the case law is somewhat surprising -- after providing nuanced …
Doctrinal Quandaries With 3d Printing And Intellectual Property, Lucas S. Osborn
Doctrinal Quandaries With 3d Printing And Intellectual Property, Lucas S. Osborn
Lucas S. Osborn
No abstract provided.
Introduction: The Defend Trade Secrets Act Of 2015, Christopher B. Seaman
Introduction: The Defend Trade Secrets Act Of 2015, Christopher B. Seaman
Christopher B. Seaman
This is an introduction to a Roundtable on the Defend Trade Secrets Act published by the Washington and Lee Law Review Online in 2015.
Introduction: The Defend Trade Secrets Act Of 2015, Christopher B. Seaman
Introduction: The Defend Trade Secrets Act Of 2015, Christopher B. Seaman
Christopher B. Seaman
This is an introduction to a Roundtable on the Defend Trade Secrets Act published by the Washington and Lee Law Review Online in 2015.
Patents And Traditional Knowledge Of The Uses Of Plants: Is A Communal Patent Regime Part Of The Solution To The Scourge Of Bio Piracy, Ikechi Mgbeoji
Patents And Traditional Knowledge Of The Uses Of Plants: Is A Communal Patent Regime Part Of The Solution To The Scourge Of Bio Piracy, Ikechi Mgbeoji
Ikechi Mgbeoji
No abstract provided.
Symposium: Reconstructing The Author-Self: Some Feminist Lessons For Copyright Law, Carys J. Craig
Symposium: Reconstructing The Author-Self: Some Feminist Lessons For Copyright Law, Carys J. Craig
Carys Craig
No abstract provided.
The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig
The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig
Carys Craig
This essay explores the important body of scholarship that has emerged on the substance, nature, and role of the public domain in intellectual property law. I offer some concrete definitions of the public domain in the copyright context, identify some ongoing sources of debate in the literature, and highlight some particularly significant voices in public domain discourse. In doing so, my aim is twofold: first, I mean to present a reasonably comprehensive but concise review of the academic public domain movement, which has been directed towards substantiating and politicizing the concept of the public domain, second, I hope to re-situate …
Digital Locks And The Fate Of Fair Dealing In Canada: In Pursuit Of 'Prescriptive Parallelism', Carys J. Craig
Digital Locks And The Fate Of Fair Dealing In Canada: In Pursuit Of 'Prescriptive Parallelism', Carys J. Craig
Carys Craig
The enactment of anti-circumvention laws in Canada appears imminent and all but inevitable. This article considers the threats posed by technical protection measures and anti-circumvention laws to fair dealing and other lawful uses of protected works, and so to the copyright system more generally. The argument adopts, as its normative starting point, the principle of "prescriptive parallelism" according to which the traditional copyright balance of rights and exceptions should be preserved in the digital environment. Looking to the experiences of other nations, the article explores potential routes towards reconciling technical protection measures with copyright limits, and maintaining a substantive continuity …
Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig
Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig
Carys Craig
This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the authors …
Permanent Injunctions In Patent Litigation After Ebay: An Empirical Study, Christopher B. Seaman
Permanent Injunctions In Patent Litigation After Ebay: An Empirical Study, Christopher B. Seaman
Christopher B. Seaman
Improving Patent Quality With Applicant Incentives, Stephen Yelderman
Improving Patent Quality With Applicant Incentives, Stephen Yelderman
Stephen Yelderman
This Article offers an alternative approach to the widely recognized problem of low-quality patents being granted by the patent office. Traditional reforms have focused almost exclusively on making the patent office more effective at examination. This Article instead looks at patent quality from an applicant’s perspective, and evaluates how certain patent rules might be encouraging inventors to file higher or lower quality claims. It proposes a variety of reforms to take advantage of applicants’ existing interests in obtaining patents that are both broad enough to create infringing activity and narrow enough to be valid. The result is a distinctive set …
Intellectual Property, Asian Philosophy And The Yin-Yang School, Peter K. Yu
Intellectual Property, Asian Philosophy And The Yin-Yang School, Peter K. Yu
Peter K. Yu
As an introduction to a special issue on intellectual property philosophy, this article focuses on insights from Asian thought. Such a focus is needed not only to provide balance within this special issue, which includes articles focusing primarily on Western philosophy, but also to highlight the compatibility between Asian philosophy and the notion of intellectual property rights. More importantly, this article aims to demonstrate that Asian philosophy may suggest new ways to address the ongoing and highly complex intellectual property challenges confronting emerging economies and the digital environment.
This article begins by providing a brief discussion of the many different …
The More Copyright Laws Change, The More Digital Challenges Stay The Same, Peter K. Yu
The More Copyright Laws Change, The More Digital Challenges Stay The Same, Peter K. Yu
Peter K. Yu
This essay was a contribution to the Liber Amicorum for Professor Jan Rosén of Stockholm University, a former president of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP). Drawing on Professor Rosén's scholarship, the essay shows how today's judges, legislators, policymakers and commentators continue to address questions that copyright and media law scholars have explored in the past decades.
Specifically, this essay focuses on two topics. The first topic concerns the exhaustion of distribution rights in computer software and other digital works, including regional exhaustion within the European Union. The second topic covers the …
The Insurability Of Claims For Restitution, Christopher French