Law Commons^™

State Accountability For Violations Of Intellectual Property Rights: How To “Fix” Florida Prepaid (And How Not To), Ernest A. Young, Mitchell N. Berman, R. Anthony Reese

Faculty Scholarship

In its Florida Prepaid and College Savings Bank decisions of two terms ago, the Supreme Court raised significant barriers to Congress's ability to subject the states to damages liability in federal intellectual property suits. These decisions provoked extensive academic commentary and have also sparked efforts in Congress and at the U.S. Patent and Trademark Office to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. This article explores how such legislation might best be shaped in order to withstand constitutional challenge.

Satisfactory treatment of the issue requires examination of a …

Transmissions Of Music On The Internet: An Analysis Of The Copyright Laws Of Canada, France, Germany, Japan, The United Kingdom, And The United States, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article examines the status of copyright laws in several countries as they pertain to transmissions of music on the Internet. Because the exact legal ramifications of music transmissions over the Internet are currently unclear, the Author compares copyright laws of six major markets and examines the potential application of the copyright laws and other rights that may apply. The Article also discusses rules concerning which transborder transmissions are likely to be covered by a country's national laws, as well as specific rules applying to the liability of intermediaries. Next, the Article summarizes the comparative findings and discusses the relevant …

Blame It On The Cybersquatters: How Congress Partially Ends The Circus Among The Circuits With The Anticybersquatting Consumer Protection Act?, Xuan-Thao Nguyen

Articles

Congress blamed the cybersquatters for the need to pass another trademark cyberlaw. Congress enacted the Anticybersquatting Consumer Protection Act (“ACPA”) on November 29, 1999. The ACPA aimed to protect consumers and businesses, to promote the growth of electronic commerce, and to provide clarity in the law for trademark owners by prohibiting cybersquatting activities on the Internet. Prior to the enactment of the ACPA, the Federal Trademark Dilution Act (“FTDA”), which was passed by Congress in 1995 and became effective on January 16, 1996, was hailed as a powerful tool to combat cybersquatters on the Internet. That presumed powerful tool turned …

Authorship, Dominance, And The Captive Collaborator: Preserving The Rights Of Joint Authors, Mary Lafrance

Scholarly Works

For copyright purposes, determining whether a work has a single author or joint authors is important for a variety of reasons. Perhaps the most significant legal consequence of joint authorship is joint ownership, under which the authors enjoy equal and undivided ownership of the copyright, allowing each to exploit the work freely, subject to a duty to account to the others for a ratable share of the exploitation profits. Absent an agreement to the contrary, each author of a joint work has an equal claim to those profits and an equal right to exploit the work, even if the authors' …

The Marriage Of Intellectual Property And Insurance Law: An Introduction, Leo P. Martinez

Faculty Scholarship

No abstract provided.

Commentary On Economic And Ethical Reasons For Protecting Data, Wendy J. Gordon

Faculty Scholarship

Like Jane Ginsburg, I would like to drop back a bit, to talk about more general principles. Essentially, both of our primary speakers focused on a distinction between property and non-property modes of protecting data. I would like to highlight the economic and ethical reasons for maintaining that distinction.

Designing Non-National Systems: The Case Of The Uniform Domain Name Dispute Resolution Policy, Laurence R. Helfer, Graeme B. Dinwoodie

Faculty Scholarship

The article critically assesses the Uniform Domain Name Dispute Resolution Policy (UDRP) as a potential model for solving the immense legal challenges presented by transborder activity. Inaugurated in late 1999 by the Internet Corporation for Assigned Names and Numbers (ICANN), the UDRP creates a fast, inexpensive online mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. At present, the UDRP applies only to a narrow segment of disputes between trademark owners and domain name registrants. But the UDRP has been heralded by …

Allchin’S Folly: Exploring Some Myths About Open Source Software, Joe Miller

Scholarly Works

The twists and turns in the government’s antitrust case against Microsoft – from the D.C. Circuit’s stormy questioning at the two day oral argument in late February 2001 to its affirmance of the lion’s share of the government’s case in June 2001, and then from the settlement between the United States and Microsoft to the continuing battle by nine states for tougher sanctions – have garnered their share of press attention. But the high-profile antitrust case has not been the only Microsoft-centered controversy during the past year. Another involves the open source software movement about which Microsoft has professed grave …

State Accountability For Violations Of Intellectual Property Rights: How To "Fix" Florida Prepaid (And How Not To), Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

Articles

This commentary will focus on the participants' proposals relative to the laws of other countries. Particularly, assuming that the same proposals were to be made in an international negotiation, my commentary reflects potential reactions and responses from Japanese and European delegates.

Copyright Law And Archival Research, Robert Spoo

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Process Considerations In The Age Of Markman And Mantras, Craig Allen Nard

Faculty Publications

This article asserts that although notions of uniformity and certainty have always been part of patent law parlance, since the Federal Circuit's decision in Markman v. Westview Instruments, Inc., these noble ends have achieved mantra status. In Markman, the Federal Circuit, in the name of uniformity and certainty, characterized claim interpretation as a question of law subject to de novo review, thus positioning itself as the arbiter of claim meaning. If the Federal Circuit is unwilling to exercise greater obeisance toward district court claim interpretations, this article argues that to achieve uniformity and certainty in the context of de novo …

Cybercoverage For Cyber-Risks: An Overview Of Insurers' Responses To The Perils Of E-Commerce, Robert H. Jerry Ii, Michele L. Mekel

Faculty Publications

With nearly seven percent of the world's population currently online and e-commerce forecast to hit $6.8 trillion by 2004, one need not be Nostradamus to predict that the Internet means great change for all industries - including the insurance industry. Presently, however, the proverbial cart is leading the horse as the insurance industry struggles to develop strategies to quantify, cover, and contain "cyber-risks." Policyholders also face new challenges as they confront the possibility that their traditional insurance coverages are woefully inadequate either to secure their electronic and intellectual property assets or to guard against their potential e-commerce liabilities to third …

International Dispute Settlement At The Trademark-Domain Name Interface, Laurence R. Helfer

Faculty Scholarship

This essay identifies some of the emerging legal issues relating to the Uniform Domain Name Dispute Resolution Policy ("UDRP"), a new anational online dispute settlement system established by a private, non-profit corporation, the Internet Corporation for Assigned Names and Numbers in late 1999.

The UDRP creates a fast and inexpensive mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. The UDRP is worthy of serious study for at least two reasons. First and foremost, the process by which the UDRP was created, …

Intellectual Property, Electronic Commerce And The Preliminary Draft Hague Jurisdiction And Judgments Convention, Ronald A. Brand

Articles

On October 30, 1999, a Special Commission of the Hague Conference on Private International Law adopted a Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters ("Preliminary Draft Convention," or "PDC") which was further developed in June of 2001.Originally scheduled for a final diplomatic conference in the fall of 2000, the negotiating process was delayed as a result of serious questions raised about the draft language.

After a discussion of the history of the convention, this paper presents a review of the Preliminary Draft Convention text, describing its structure and scope. It then provides a focus …

What The Future Holds: Policy Choices In A Global Marketplace, Maureen A. O'Rourke

Faculty Scholarship

This essay's title is a misnomer. No one knows "What the Future Holds" in the global marketplace. We can, however, make some educated guesses about the issues that will assume particular importance in the next year or so. Thus, the essay might be more accurately titled, "What May or May Not Be the Important Issues in Internet Commerce in the Next Year or So'"-less catchy, admittedly, but closer to the truth.

Not So Different: Tangible, Intangible, Digital, And Analog Works And Their Comparison For Copyright Purposes, I. Trotter Hardy

Faculty Publications

No abstract provided.

On Trademarks, Domain Names, And Internal Auctions, Gideon Parchomovsky

All Faculty Scholarship

No abstract provided.

What's My Copy Right?, Michael J. Madison

Articles

This piece consists of an early 21st century whimsy, a dialogue that borrows and blends history and humor to illustrate some puzzles of copyright law in the context of digital technology (with references to Folsom v. Marsh and Abbott & Costello).

Patent Law In The Age Of The Invisible Supreme Court, Mark D. Janis

Articles by Maurer Faculty

This article examines the permanence of the U.S. Supreme Court's retreat to the peripheries of patent law after the creation of the Federal Circuit, and explores the roles that the Supreme Court might imagine for itself in contemporary patent law. For discussion purposes, the article describes two hypothetical models for Supreme Court decisionmaking in patent cases: an aggressive interventionist model and an extreme non-interventionist model. After considering the shortcomings of both models, the article proposes an intermediate, managerial model. The managerial model rejects the proposition that the Court should intervene in patent cases to correct perceived substantive errors in Federal …

The Uncertain Future Of Fair Use In A Global Information Marketplace, Marshall Leaffer

Articles by Maurer Faculty

The author of this article forecasts an increasingly troubled future, if not the demise of the doctrine of fair use in copyright law. Legal developments, both at home and abroad, driven by technological change, and the push toward the international harmonization of legal norms, threaten the very survival of fair use. Given these realities the doctrine will, of necessity, be reconceptualized Although fair use values will always be inscribed in copyright law, these values will have their practical manifestation in decentralized form, and effectuated, in large part, through industry agreement. They will exist in conjunction with certain bright line exceptions …

Introduction: From Sheet Music To Mp3 Files—A Brief Perspective On Napster, Harold R. Weinberg

Law Faculty Scholarly Articles

The Napster case is the current cause celebre of the digital age. The story has color. It involves music-sharing technology invented by an eighteen-year-old college dropout whose high school classmates nicknamed him "The Napster" on account of his perpetually kinky hair. The story has drama. Depending on your perspective, it pits rapacious big music companies against poor and hardworking students who just want to enjoy some tunes; or it pits creative and industrious music companies seeking a fair return on their invested effort, time, and money against greedy and irreverent music thieves. And the case has importance. Music maybe intellectual …

Trademark Law, Functional Design Features, And The Trouble With Traffix, Harold R. Weinberg

Law Faculty Scholarly Articles

This article concerns trademark law's functionality doctrine and the Supreme Court's troublesome opinion concerning it in TrafFix Devices, Inc. v. Marketing Displays, Inc. The doctrine provides that if a producer's useful or aesthetic design feature is "functional," then competitors can lawfully copy it even if the feature otherwise would be protected against copying by trademark principles. In order to introduce the functionality doctrine and the trouble with TrafFix, it is helpful to describe the nature of design features, the simultaneous roles they may play as source-identifying trade symbols and as useful or aesthetic product elements, and trademark law's place …

Information Technology And Non-Legal Sanctions In Financing Transactions, Ronald J. Mann

Faculty Scholarship

This Essay investigates the effect of advances in information technology on the private institutions that businesses use to resolve information asymmetries in financing transactions. The first part of the Essay discusses how information technology can permit direct verification of the information, obviating the problem entirely; the Essay discusses the example of the substitution of the debit card for the check, which provides an immediate payment that obviates the need for the merchant to consider whether payment will be forthcoming when the check is presented to the bank on which it is drawn.

The second part of the Essay discusses how …

Collusion And Collective Action In The Patent System: A Proposal For Patent Bounties, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Persistent commentary contends that the Patent Office is issuing patents that appropriate public domain concepts at an alarming frequency. Complaints of low patent quality enjoy growing resonance with regard to business methods, computer software, and other inventions for which patents were not traditionally sought. In this article, Professor Jay Thomas explains how the judiciary's lenient view of patentable subject matter and utility standards, along with miserly congressional funding policies, have rendered the Patent Office an increasingly porous agency. Professor Thomas next reviews existing proposals for improving patent quality, including the conventional wisdom that adoption of an opposition system will contribute …

Antitrust And Intellectual Property: Unresolved Issues At The Heart Of The New Economy, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

The New Economy differs in degree rather than kind from the "old" economy. Part II of this discussion examines the key differences that define the New Economy. Part Ill turns to several implications of those differences as they pertain to antitrust enforcement. I argue that the differences do not justify sweeping generalizations that antitrust enforcement has no place in the New Economy, but do require antitrust enforcement to make adjustments and exercise sensitivity towards intellectual property issues on a case-by-case basis. The goal of a coherent overall competition policy, in deciding both what conduct to enforce against and what remedies …

Berne Without Borders: Geographic Indiscretion And Digital Communications, Jane C. Ginsburg

Faculty Scholarship

This lecture examines the role of borders in the Berne Convention at the time of the treaty's first passage in 1886, and today. The later 19th century was an era of increasing commerce and communication among countries whose domestic production and reproduction of works of authorship had vastly increased, thanks in part to new technologies, such as photography, lithography, and high-speed printing. But at that time, the frontiers between nations often frustrated authors' hopes for control over, or at least compensation for, the international exploitation of their works. Authors' rights ceased at their national boundaries; the world beyond foreboded not …

Copyright And Control Over New Technologies Of Dissemination, Jane C. Ginsburg

Faculty Scholarship

The relationship of copyright to new technologies that exploit copyrighted works is often perceived to pit copyright against progress. Historically, when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement. However, when owners seek instead to participate in and be paid for the new modes of exploitation, the courts, and Congress, appear more favorable to copyright control over that new market. Today, the courts and Congress regard the unlicensed distribution of works over the Internet as impairing copyright owners' ability to avail …

The Dynamic Analytics Of Property Law, Michael A. Heller

Faculty Scholarship

The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership. This essay suggests two approaches – creating new ideal types and synthesizing existing ones – that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.

Challenges Of The New Economy: Issues At The Intersection Of Antitrust And Intellectual Property, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

There is wide agreement that the last decade or so has presented an unusually lively and challenging period for antitrust analysis. Among many reasons we can point to are deregulation and problems of transition to a free market (telecommunications and electricity production offer leading examples), developments in procedural cooperation and possible substantive convergence in response to the increasing globalization of competition and enforcement approaches, and priorities in addressing an unprecedented merger wave. An additional challenge involves the application of established antitrust principles to the growing high-tech sector of the economy. It is that application of antitrust law to the new …