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Full-Text Articles in Law
An Alternative Approach To Channeling?, Mark P. Mckenna
An Alternative Approach To Channeling?, Mark P. Mckenna
Mark P. McKenna
Intellectual property law has developed a variety of doctrines to police the boundaries between various forms of protection. Courts and scholars alike overwhelmingly conceive of these doctrines in terms of the nature of the objects of protection. The functionality doctrine in trademark law, for example, defines the boundary between trademark and patent law by identifying and refusing trademark protection to features that play a functional role in a product's performance. Likewise, the useful article doctrine works at the boundary of copyright and patent law to identify elements of an article's design that are dictated by function and to channel protection …
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Alex Stein
This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls the plaintiff’s right and relieves not only the defendant, but also the entire world of the duty to comply with it. An individualized defense is much narrower in scope: Its successful showing defeats the specific infringement claim asserted by the plaintiff, but leaves the plaintiff’s right intact. Class defenses form an in-between category: They create an immunity zone for a certain group of users to …
Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale
Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale
Frank A. Pasquale
The fair use defense in copyright law shields an intellectual commons of protected uses of copyrighted material from infringement actions. In determining whether a given use is fair, courts must assess the new use's potential effect on the market for the copyrighted work. Fair use jurisprudence too often fails to address the complementary, network, and long-range effects of new technologies on the market for copyrighted works. These effects parallel the indirect, direct, and option values of biodiversity recently recognized by environmental economists. Their sophisticated methods for valuing natural resources in tangible commons can inform legal efforts to address the intellectual …
Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale
Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale
Frank A. Pasquale
The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal. In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …
Game Over For First Sale, Stephen J. Mcintyre
Game Over For First Sale, Stephen J. Mcintyre
Stephen J McIntyre
Video game companies have long considered secondhand game retailers a threat to their bottom lines. With the next generation of gaming consoles on the horizon, some companies are experimenting with technological tools to discourage and even prevent gamers from buying and selling used games. Most significantly, a recent patent application describes a system for suppressing secondhand sales by permanently identifying game discs with a single video game console. This technology flies in the face of copyright law’s “first sale” doctrine, which gives lawful purchasers the right to sell, lease, and lend DVDs, CDs, and other media. This Article answers a …
Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower
Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower
Richard Cameron Gower
Despite some difficulties, state tort law can be argued to create a unique exception to patent law. Specifically, the prevented rescue doctrine suggests that charities and others can circumvent patents on certain critical medications when such actions are necessary to save individuals from death or serious harm. Although this Article finds that the prevented rescue tort doctrines is preempted by federal patent law, all hope is not lost. A federal substantive due process claim may be brought that uses the common law to demonstrate a fundamental right that has long been protected by our Nation’s legal traditions. Moreover, this Article …