Law Commons^™

That Thing Ain't Human: The Artificiality Of "Human Authorship" And The Intelligence In Expanding Copyright Authorship To Fully-Autonomous Ai, Ernest Oleksy

Cleveland State Law Review

The U.S. Copyright Review Board (the "Board") decided that works entirely created by fully-autonomous artificial intelligence ("AI") are not entitled to copyright protections. The Board based its decision on a copyrightability requirement referred to as “human authorship.” However, the Copyright Act of 1976 (the "Act") never mentions a “human” requirement to copyright authorship, nor do most of the Board’s cited authorities. Denying authorship to intellectually-impressive and economically-valuable works under a poorly-established legal subelement is antithetical to copyright law’s history and to Congress’s constitutional mandate to “promote . . . [the] useful [a]rts . . . .” It leaves creators who …

Problems In The Copyright Industry: Making The Case For A Corrected Case Act, Megan Grantham

Et Cetera

In 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement Act, which established a small claims court system within the United States Copyright Office, called the Copyright Claims Board. This new board hears cases of copyright violations involving damages of $30,000 or less. President Donald Trump signed the bill into law on December 27, 2020, and the board officially began hearing claims in June 2022. This was meant to benefit smaller creators who do not have the means to pursue their copyright claims in costly federal court. While small or independent creators should indeed have access to a means of …

From Models To Mannequins: The Oxymoronic Equation Of International Labor Law Standards In The World Of Fashion, Namrata Bhowmik, Naman Anand

Cleveland State Law Review

Fashion law is an emerging field that addresses the legal issues that arise in the fashion industry. With the rapid growth and globalization of the fashion industry, there is an increasing need for specialized legal guidance in this area. Fashion law encompasses a wide range of legal issues, including intellectual property, contract law, employment law, international trade law, and environmental law.

One of the main drivers behind the need for fashion law is the rise of counterfeiting and intellectual property theft in the fashion industry. With the proliferation of ecommerce and social media, it has become easier than ever for …

Concealing More Than Your Affairs: A Deep Dive Into The World Of Cryptocurrency And Its Future Influence On Family Law In Ohio, Milica Prica

Cleveland State Law Review

This Note dives into the world of cryptocurrency and family law in Ohio. With its current popularity and dramatic fluctuations, cryptocurrency has created a new legal issue in the family law practice. Specifically, this Note focuses on the concealability of Bitcoin and how that influences division of property, spousal support, and child support in Ohio divorce proceedings and settlements. To tackle this issue, this Note begins with the history of Bitcoin, its value since the beginning, as well as the reason for its fluctuations. This Note also looks into what makes Bitcoin and other cryptocurrency forms so concealable. This Note …

Keynote At The Cleveland State University College Of Law Ip+ Conference, Kathleen O'Malley

Cleveland State Law Review

Thank you for your kind introduction, Lee. Thank you too for your mentorship, support, and friendship over the years. I would not be where I am today but for having you in my life. And I want to thank both you and Professor Laser for inviting me to join you today—and for providing a soap box to champion the importance of a robust intellectual property system.

Rethinking Patent Law's Exclusive Appellate Jurisdiction, Christa Laser

Cleveland State Law Review

The United States Court of Appeals for the Federal Circuit was created in 1982 to unify and clarify patent law, inter alia. It was built from political compromise after the Hruska Commission, which studied the caseload crisis in the federal appellate courts in the 1970s, initially recommended creation of a new National Court of Appeals that would exist between the regional federal appellate circuits and the Supreme Court. The Federal Circuit judges admirably implemented these functions for four decades.

However, the initial function of the Federal Circuit might no longer be as needed in the current judicial climate. The environment …

Comparative Intellectual Property Protection For Marijuana: United States Vs. The European Union, Jillian Gosser

Global Business Law Review

Protecting intellectual property relating to marijuana is a complicated endeavor. The federal ban on marijuana renders trademark protection difficult at best, and patent protection, while available, still rife with complications. In Europe, the laws pose similar challenges in the protection and enforcement of marijuana related intellectual property. This Note presents a comparative law analysis of the various ways marijuana related intellectual property may be protected in the United States and Europe. Different types of intellectual property protection explored include utility patents, design patents, trademarks, plant patents, Plant Variety Protection Act coverage, and Community Plant Variety Act coverage. This Note explores …

Overdressed & Underprotected: The Not-So Glamorous Side Of The United States Fashion Industry Without Explicit Copyright Protection, Anna Huttner

Cleveland State Law Review

The complexity of fashion designs goes far beyond what is currently trending in Vogue. Intellectual property laws should seek to provide designers with an opportunity to completely protect their work, as well as ensure that fashion designers’ designs will not be replicated and sold for a fraction of the price. Inherent limitations with alternate forms of intellectual property protection emphasize the need for a bright-line rule for copyright protection over fashion designs. To best protect new designers and small brands within the U.S. fashion industry, there must be a standard that explicitly includes and defines accessibility to copyright protection …

The Hydraulics Of Intermediary Liability Regulation, Ben Horton

Cleveland State Law Review

The intermediary immunity created by Section 230 probably protects claims based on the non-legal harms of hate speech and misinformation as well as a European-style proportionality system of content moderation better than a more “legalized” intermediary liability regime would. Contrasting the existing non-copyright content moderation systems with empirical research on the effects of the Digital Millennium Copyright Act (DMCA) shows that a comprehensive regulation of content moderation would incentivize the moderation of defamation and negligence claims at the expense of these important non-legal claims and incentivize a homogenous, categorical approach to content moderation. Furthermore, empirical research on the effects of …

America's Broken Copyright Law: How Marvel And Sony Sparked Public Debate Surrounding The United States' "Broken" Copyright Law And How Congress Can Prevent A Copyright Small Claims Court From Making It Worse, Izaak Horstemeier-Zrnich

Cleveland State Law Review

Following failed discussions between Marvel and Sony regarding the use of Spider-Man in the Marvel Cinematic Universe, comic fans were left curious as to how Spider-Man could remain outside of the public domain after decades of the character’s existence. The comic community came to realize that Marvel was restricted in the use of its own character because of the Sonny Bono Copyright Term Extension Act of 1998 and the Supreme Court’s decision in Eldred v. Ashcroft. This realization sparked an online conversation regarding the United States’ lengthy copyright terms, and what many refer to as a “broken” copyright system. …

Intellectual Property For Breakfast: Market Power And Informative Symbols In The Marketplace, P. Sean Morris

Cleveland State Law Review

This Article continues to examine an important question: are trademarks a source of market power, or, put differently, when are trademarks an antitrust problem? This fundamental question is a cause of division among antitrust and intellectual property law scholars. However, by raising the question and presenting some scenarios that can provide answers, my hope is that contemporary antitrust and intellectual property scholars can explore some of its implications. As part of my own quest to address this question, I explore the proposition that creative deception and the wealth-generating capacity of trademarks are unorthodox elements that actually contribute to allegations of …

The Case For Flexible Intellectual Property Protections In The Trans-Pacific Partnership , Matthew E. Silverman

Journal of Law and Health

The United States and eleven other countries are currently in the end stages of negotiating the Trans-Pacific Partnership (TPP)—the largest free trade agreement (FTA) in U.S. history—which incorporates a range of trade topics, including the protection and enforcement of intellectual property rights (IPRs). Although the negotiations have been highly secretive, negotiating texts of the agreement leaked as recently as November 2013 have suggested that the United States is proposing IPR provisions, specifically relating to patent protection, that are stronger and less flexible than IPR provisions included within three of the four most recent U.S. FTAs. This paper addresses and analyzes …

A Last Step Rule For Direct Infringement Of Process Claims: Clarifying Indirect Infringement And Narrowing Joint Infringement, Stephen W. Moore

Cleveland State Law Review

This Note proposes that the party who performs the last step of a patented process should be liable for direct infringement. Under this “Last Step Rule,” patented products and processes would be treated similarly—which is consistent with past decisions and is implied in the patent statute. As will be shown in this Note, adopting the Last Step Rule would make finding indirect patent infringement more straightforward and would limit the doctrine of joint infringement to claims for direct infringement. The proposed rule will be shown to be logically sound, supported by case law precedent, and consistent with the language and …

Mapping Our Future: The Impact Of Gene Patents On Scientific Research And Health Care In The United States, Caitlin E. Lanning

Journal of Law and Health

In September, 2011, the Senate passed H.R. 1249, the Leahy-Smith America Invents Act (“AIA”), which President Barrack Obama signed into law on September 16th. The AIA is the largest transformation to U.S. patent law since 1952. While the new legislation implements numerous, positive changes to the U.S. patent system, it fails to address any of the concerns raised by gene patent critics over the past few decades. Gene patents should be categorized as patentable subject matter within the AIA, but under a separate patent category with specifically engineered regulations designed to promote scientific research and collaboration that will in turn …

The Anti-Counterfeiting Trade Agreement Of 2010: Two Problems And One Unanswered Question, Roxane Delaurell

Global Business Law Review

Further, as might be expected, uncertainty in the international context is likely to be the greatest at that point where enforcement is called for; that is, that point where the tangible expression of the force of law and of the courts‘ authority must be executed. It is for this reason that the Anti-Counterfeiting Trade Agreement (―ACTA) was drafted. Finalized in December of 2010, ACTA seeks to address problematic issues with regard to enforcement of IPR (Intellectual Property Rights) across borders and ―in the digital environment.International trafficking in unlicensed copyrighted material, and counterfeit trademarked goods and consumables––the two areas addressed by …

Metaphor, Objects, And Commodities, George H. Taylor, Michael J. Madison

Cleveland State Law Review

As its two main Parts will evidence, this Comment remains the product of two distinct if overlapping voices. Part II returns to the conceptual origins of Radin's theory in her general critique of objectification and commodification. It asks whether a more positive concept of objectification can be recovered that is distinguishable from reification, the latter seeming to be the more appropriate locus of Radin's criticism. Part III's response to Radin is similar, but it tries to exemplify both our appreciation of and our differences from her work through more detailed analysis of intellectual property law and theory.

Capturing Ideas: Copyright And The Law Of First Possession, Abraham Drassinower

Cleveland State Law Review

Part II of this paper, entitled “Wish and Deed,” sets forth an account of the law of first possession through an analysis of the classic case of Pierson v. Post. Part III, entitled “Idea and Expression,” briefly sets forth an account of the idea/expression dichotomy in copyright law through discussion of the classic case of Nichols v. Universal Pictures Corporation. On that basis, Part III unfolds a correspondence between animus and factum in property law and idea and expression in copyright law. Part IV, entitled “Things and Speech,” suggests through discussion of the classic case of Feist that central doctrines …

Exporting Dmca Lockouts, Anupam Chander

Cleveland State Law Review

My goal here is limited. I do not attack the anti-circumvention provisions of the DMCA as wholly misguided; the desire to prevent widespread piracy of copyrighted works is understandable. At the same time, I do not mean to suggest that the critique I offer here is the sum of the adverse consequences of that statute, including for speech and education. My argument is limited to the threat posed by the export of the DMCA anti-circumvention rules, which do not explicitly guard against the anti-competitive use of those rules.Part I briefly sketches the difficulties created domestically by a DMCA inattentive to …

Nonconventional Musical Analysis And Disguised Infringement: Clever Musical Tricks To Divide The Wealth Of Tin Pan Alley , Mark Avsec

Cleveland State Law Review

This article argues that "disguised" infringement is oxymoronic and demagogic, and that the "nonconventional" musical analytical techniques employed to diagnose it are misguided. If an expert cannot tell that two pieces of music are similar by traditional methods, that is probably because they are not similar. Part II of this article chronicles the role of the musical expert as it has been carved out over time. Part III exposes the expert's traditional methods for comparing musical compositions. Part IV explores nonconventional analytical techniques, explains why they are misapplied when employed to detect "disguised" plagiarism and illustrates why Judge Frank would …

Dna Patenting And Access To Healthcare: Achieving The Balance Among Competing Interests, Melissa E. Horn

Cleveland State Law Review

Increasing evidence suggests that the biotechnology industry's interest in generating revenue and the public's desire to obtain the best healthcare may be at odds. The patenting of genetic information is at the core of this debate. Most, if not all, of the products of the biotech industry's research are patentable. Historically, patents have been justified on the grounds that they are needed to create an incentive for researchers and companies to invest time and money in projects that have uncertain outcomes. In the biotechnology arena, patents do not simply encourage innovation and allow innovators to recoup their costs. Patents can …

Trademarks And The Movies: An Af-'Fair Use To Remember, Lauren P. Smith

Cleveland State Law Review

The Federal Trademark Dilution Act poses a serious threat for filmmakers, much more so than found under the original Lanham Act. A filmmaker can be found guilt of dilution without a finding that consumers would likely be confused by the allegedly diluting use. The mere appearance of a mark in a film would not likely violate a trademark holders rights. According dilution's much less stringent standard, non-competing uses of a mark which would "blur" its strength would violate a holder's rights. Courts have used the FTDA in ways as broad as its language allows, and it poses a very serious …

The Unauthorized Dissemination Of Celebrity Images On The Internet ... In The Flesh, Navin Katyal

Cleveland State Law Review

This paper will explore and analyze the unauthorized use and dissemination of celebrity images over the Internet as a violation of the copyrights of either the celebrity themselves, or the cinematographic' rights of the film production studio(s). The analysis will focus on the Copyright Act of both Canada and the United States and will be covered in three parts. Part I will define the basic nomenclature of the Internet and explain the applicability of copyright law to the Internet. Part II will focus on methods in which the celebrity and film studio can protect their copyright 'On-line' through the American-defined …

Copyright On The Internet: A Critique Of The White Paper's Recommendation For Updating The Copyright Act And How The Courts Are Already Filling In Its Most Important Shortcoming, On-Line Service Provider Liability, George Smirnoff Iii

Cleveland State Law Review

The current technological challenge for American copyright law is the National Information Infrastructure (NII), which is a network of networks used to carry digital transmissions through thousands of computer networks using a common set of protocols. Currently, the Copyright Act does not expressly include works created, copied, transmitted, or performed on the NII. President Clinton formed the Information Infrastructure Task Force (the Working Group) "to articulate and implement the Administration's vision for the National Information Infrastructure." On September 5, 1995, the Working Group released the White Paper which addresses special intellectual property concerns and issues raised by the development and …

The Lack Of Protection Afforded Software Under The Current Intellectual Property Laws, Himanshu S. Amin

Cleveland State Law Review

Many abstract advances in computer technology remain unprotected since the current intellectual property system has been shaped through a focus on tangible, physical inventions. The software industry in the United States "accounts for domestic revenues of over fifty billion dollars each year in worldwide sales and services." Accordingly, it is imperative that United States software developers be provided adequate intellectual property coverage in order to protect existing technology and encourage further innovation in the field. The present lack of adequate protection has handicapped American developers unnecessarily in the global software market.

Staying Patent Validity Litigation Pending Reexamination: When Should Courts Endeavor To Do So, Steven M. Auvil

Cleveland State Law Review

This note will discuss the circumstances under which it is appropriate for a court to exercise its authority to stay patent validity litigation pending reexamination of the patent-in-suit. The question must be analyzed with due regard to the unique relationship that exists between Patent Office reexamination and district court litigation. As a point of departure, the note explains the substance and procedure of statutory reexamination. Secondly, it will discuss the possible effects that reexamination may have on concurrent litigation in a district court. Thirdly, the note will examine the discernible factors that courts have considered in deciding whether to suspend …

Protecting Trade Secrets And Confidential Information From Media Disclosure: Removing The Reporter's Shield, John M. Tkacik Jr.

Cleveland State Law Review

This Note will address the problem facing businesses in Ohio when the laws protecting trade secrets and confidential information come into direct conflict with laws protecting the media. Part II of this Note will discuss the concept and various legal definitions attributed to trade secrets and confidential proprietary information. Parts III and IV will discuss trade secrets, confidential information and the related remedies available to companies, with emphasis on the statutes under Ohio's criminal code. This Note will then focus on the protection afforded the media by both an Ohio shield statute which protects confidential sources, and the U.S. Constitution …

The Effect Of Lilly V. Medtronics On The Scope Of 35 Usc 271(E)(1): The Patent Infringement Exemption - Broad Or Narrow, Ajay S. Pathak

Journal of Law and Health

This article undertakes to examine, critically, the case history, legislative history, and the construction of sections 101, 201, and 202 of the Patent Term Restoration Act of 1984 in an effort to analyze the Supreme Court's recent decision in Lilly v. Medtronics and to discern how the scope of section 271(e)(1) is likely to be treated in future cases in light of that recent Supreme Court decision.

The Patentability And Patent Term Extension Of Lifesaving Drugs: A Deadly Mistake, Jonathan L. Mezrich

Journal of Law and Health

The pharmaceutical business is dominated largely by two types of entities: large, research-intensive corporations, and the smaller "generic" drug "knock-off" artists. because the former organizations have to put so much of their budget into research and development (R&D), a form of investment which is often akin to pouring money into a hole, the 17-year exclusive monopoly of a patient is often the only way such a company can remain profitable. However, because of a concern for public safety, all substances prepared for human consumption must be put through extensive testing by the FDA. This testing could take a long period …

The 1988 Revision Of 28 U.S.C. 1391(C): Corporate Venue Is Now Equivalent To In Personam Jurisdiction Effects On Civil Actions For Patent Infringement, Thomas W. Adams

Cleveland State Law Review

Venue in federal cases is controlled by the general venue statute unless there exists an applicable special venue statute that attaches to the particular cause of action under consideration. This note is concerned with the section of the general venue statute applicable to corporate defendants and its interaction with the special venue statute for civil actions in patent infringement cases ("patent venue statute"). As a first step in the discussion of venue, it is necessary to go back in history over 200 years. This note reviews the history of venue, both generally and in cases of patent infringement, the historical …

The 1988 Revision Of 28 U.S.C. 1391(C): Corporate Venue Is Now Equivalent To In Personam Jurisdiction Effects On Civil Actions For Patent Infringement, Thomas W. Adams

Cleveland State Law Review

Venue in federal cases is controlled by the general venue statute unless there exists an applicable special venue statute that attaches to the particular cause of action under consideration. This note is concerned with the section of the general venue statute applicable to corporate defendants and its interaction with the special venue statute for civil actions in patent infringement cases ("patent venue statute"). As a first step in the discussion of venue, it is necessary to go back in history over 200 years. This note reviews the history of venue, both generally and in cases of patent infringement, the historical …