Law Commons^™

Patently Impossible, Sean B. Seymore

Vanderbilt Law Review

The quest to achieve the impossible fuels creativity, spawns new fields of inquiry, illuminates old ones, and extends the frontiers of knowledge. It is difficult, however, to obtain a patent for an invention which seems impossible, incredible, or conflicts with well- established scientific principles. The principal patentability hurdle is operability, which an inventor cannot overcome if there is reason to doubt that the invention can really achieve the intended result. Despite its laudable gatekeeping role, this Article identifies two problems with the law of operability. First, though objective in theory, the operability analysis rests on subjective credibility assessments. These credibility …

Causing Infringement, Mark Bartholonew, Patrick F. Mcardle

Vanderbilt Law Review

Two years ago, the outbreak of a mysterious virus captivated the world. First detected in the state of Veracruz, Mexico in April 2009, the virus hopscotched from country to country leaving a trail of death and panicked citizens. Concerned that the virus would continue to spread, world governments banned travel to affected nations and urged citizens to take precautionary measures. U.S. Vice President Biden told citizens not to take mass transit. Airports installed thermal scanners to detect and quarantine infected travelers. Thousands donned surgical masks. Despite these precautions, two months after the virus's discovery, public health authorities diagnosed a full-fledged …

Causing Infringement, Mark Bartholomew, Patrick F. Mcardle

Vanderbilt Law Review

In its most recent contributory infringement pronouncement, the Supreme Court advised courts wrestling with these issues to consult tort law's own contributory liability framework, which it described as "well established."31 The conventional wisdom among legal scholars agrees with the Court. Most scholarship in this area contends that obeisance to traditional tort law principles of contributory liability will fill the void in infringement law with answers that are adequately calibrated to the balance between incentivizing creation and permitting downstream use. This Article challenges that conventional wisdom. Although we agree that tort law can shed some much-needed light on contributory infringement, we …

Edible Plagiarism: Reconsidering Recipe Copyright In The Digital Age, Meredith G. Lawrence

Vanderbilt Journal of Entertainment & Technology Law

Sharing recipes through food blogs is an increasingly popular activity. Bloggers publish their own recipes, claiming copyright protection, but they also publish others' recipes. Food publishers who distribute recipes online may be harmed when bloggers include the entire text of the food publisher's recipe on a blog without the publisher's knowledge or permission. The blogger's inclusion of an entire recipe often reduces site traffic to the food publisher's website, thereby damaging advertising revenues. Copyright law, as courts interpret it today, does not provide these publishers with recourse against bloggers who publish their recipes without permission.

This Note analyzes the various …

The Google Book Settlement And The Trips Agreement, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The proposed amended settlement in the Google Book case has been the focus of numerous comments and critiques. This "perspective" reviews the compatibility of the proposed settlement with the TRIPS Agreement and relevant provisions of the Berne Convention that were incorporated into TRIPS, in particular the no-formality rule, the most-favored nation (MFN) clause, national treatment obligations, and the so-called three-step test.

Drawing A Line In The Sand: Copyright Law And New Museums, Megan M. Carpenter

Vanderbilt Journal of Entertainment & Technology Law

Over the last twenty years, audience attendance at museums, galleries, and performing arts institutions in the United States has decreased dramatically. Major museums and galleries are considering ways to add engaging and meaningful value to the user experience with technology, from incorporating user-generated content to creating multimedia installations billed as "collaborative" works.

In 2010, the Dallas Museum of Art's Coastlines: Images of Land and Sea exhibition featured landscapes from 1850 to the present, as well as a sound installation composed by students and faculty at a local university, which played on speakers throughout the show and responded directly to the …

The Anti-Bootlegging Provisions: Congressional Power And Constitutional Limitations, Craig W. Dallon

Vanderbilt Journal of Entertainment & Technology Law

Courts and scholars have considered the constitutional validity of 17 U.S.C. § 1101 (civil), and 18 U.S.C. § 2319A (criminal), known together as "the anti-bootlegging provisions." These provisions prohibit unauthorized recording, copying, and distribution of live musical performances. The provisions have been challenged in three cases, resulting in five published opinions. Two district court opinions held the provisions unconstitutional, but subsequent opinions vacated those decisions. Notwithstanding a sharp division among copyright scholars, the courts have upheld these provisions. The discussion surrounding them is part of a continuing struggle to ascertain limits on congressional power to regulate copying and distribution of …

Copyright In Memoriam, Julie C. Young

Vanderbilt Journal of Entertainment & Technology Law

Can a government infringe upon a work dedicated to the memory of its people? The February 2010 Federal Circuit decision "Gaylord v. United States" addresses that question, but any satisfaction from the decision presupposes that the government should be held liable for such an infringement. Consistent with the 1976 Copyright Act, the Gaylord decision preserves the author's rights, paying no regard to the identity of the audience or the infringer. From a policy perspective, however, the result is dubious. Arguably, if a work is a public memorial, and paid for with public funds, it should immediately enter the public domain. …

Is Online Copyright Enforcement Scalable?, Annemarie Bridy

Vanderbilt Journal of Entertainment & Technology Law

This Article examines P2P file sharing and the copyright enforcement problem it has created through the lens of scalability. Part I traces the evolution of peer-to-peer (P2P) networks from Napster to BitTorrent, with a focus on the relative scalability of successive architectures. Part II takes up the difficult question of the scale of P2P infringement and its harms, examining the strategic number-crunching that underlies industry data on piracy, the government's credulous acceptance of that data, and the risk of letting industry hyperbole drive copyright policy and law enforcement priorities. Part III evaluates the efficacy of the Digital Millennium Copyright Act …

Keep America Exceptional! Against Adopting Japanese And European-Style Criminalization Of Contributory Copyright Infringement, Salil K. Mehra

Vanderbilt Journal of Entertainment & Technology Law

This brief Article, written in connection with a Symposium hosted by the Vanderbilt Journal of Entertainment and Technology Law, addresses nascent criminal enforcement against contributory copyright infringement in connection with P2P file sharing. Using Judge Posner's analysis in the Aimster case as a lens, it discusses recent cases in Japan and Sweden. This Article contends that criminalization involves an inherent uncertainty involving an innovator's knowledge of, and intent for, the future uses of the platform by others. Despite the difficulty of this task, since Japan and the E.U. have seen criminal prosecutions brought against contributory infringers, it should not evoke …

The Landscape Of Collective Management Schemes, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Collective management comes in many shapes and sizes. There is, however, an interesting definition proposed by WIPO: [T]he term “collective management” only refers to those forms of joint exercise of rights where there are truly “collectivized” aspects (such as tariffs, licensing conditions and distribution rules); where there is an organized community behind it; where the management is carried out on behalf of such a community; and where the organization serves collective objectives beyond merely carrying out the tasks of rights management . . . . In contrast, “rights clearance organizations” are those which perform joint exercise of rights without any …

Golan V. Holder: A Look At The Constraints Imposed By The Berne Convention, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

One of the central issues in the Golan v. Holder litigation is the extent to which the United States had flexibility to tailor the protection of existing works that had fallen in the public domain when it joined the Berne Convention. This Essay argues that the Berne Convention obligates the United States as a Berne Union member to provide some degree of protection, but otherwise leaves wide latitude to set the conditions under which works in the public domain receive retroactive copyright protection. The Convention itself does not mandate that any particular level of protection be granted to such works …

Atypical Inventions, Sean B. Seymore

Vanderbilt Law School Faculty Publications

Patent law is constantly evolving to accommodate advances in science and technology. But, for a variety of reasons, some aspects of patent doctrine have not evolved over time leading to a growing disconnect between the patent system and certain technical communities. Particularly vulnerable to the ill effects of this disconnect are "atypical" inventions, which this Article definesas those in which either (1) a technical aspect of the invention or the inventive process does not conform to an established legal standard in patent law or (2) the technical underpinnings of the invention depart from well-established scientific paradigms. An example of the …

Rethinking Novelty In Patent Law, Sean B. Seymore

Vanderbilt Law School Faculty Publications

The novelty requirement seeks to ensure that a patent will not issue if the public already possesses the invention. Although gauging possession is usually straightforward for simple inventions, it can be difficult for those in complex fields like biotechnology, chemistry, and pharmaceuticals. For example, if a drug company seeks to patent a promising molecule that was disclosed but never physically made in the prior art, the key possession question is whether a person having ordinary skill in the art (PHOSITA) could have made it at the time of the prior disclosure. Put differently, could the PHOSITA rely on then-existing knowledge …

The Kindle Controversy: An Economic Analysis Of How The Amazon Kindle's Text-To-Speech Feature Violates Copyright Law, Jeremy B. Francis

Vanderbilt Journal of Entertainment & Technology Law

In 2009, Amazon released the Kindle 2 with a text-to-speech feature. This feature allows users of the Kindle 2 to download software to the device that will read e-books aloud. Authors and publishers of e-books immediately objected to the feature, arguing that it essentially created an unauthorized audiobook. Amazon maintained the legality of the text-to-speech feature, arguing that it does not copy, perform, or create a derivative work. Amazon decided to avoid a legal battle by allowing rightsholders to decide whether to enable the text-to-speech feature for each individual title. The copyright community, however, responded swiftly and nearly unanimously, siding …

What's Wrong With U.S.?: Why The United States Should Have A Public Performance Right For Sound Recordings, William Henslee

Vanderbilt Journal of Entertainment & Technology Law

This Article discusses the need for the United States to implement a public performance royalty for sound recordings. Under the current system, song writers are compensated for the use of their musical works, but performers on sound recordings do not receive any compensation. Radio and television stations currently pay the performing rights societies a royalty for playing the sound recordings, but they do not pay a performance royalty to the artists who perform the music and record companies that promote and release the sound recordings. Proposed legislation will add a performance royalty for artists and record companies to the current …

Information Wars And The Challenges Of Content Protection In Digital Contexts, Raymond T. Nimmer

Vanderbilt Journal of Entertainment & Technology Law

We are in the midst of a fundamental conflict in law and policy between those who favor maintaining and expanding copyright and related rights in the digital context ("rights enhancers"), and those who favor letting rights atrophy ("rights restrictors'). This Article argues that strong intellectual property rights are essential. At minimum, they are important to support creativity in contexts where the creation, collection, or distribution of the content requires substantial investment of time and resources. The case for allowing creators' rights to weaken is both untested and structurally suspect. Copyright law must construct a balance that fully supports creative activity …

Cyberspace, Exceptionalism, And Innocent Copyright Infringement, Jacqueline D. Lipton

Vanderbilt Journal of Entertainment & Technology Law

Direct copyright infringement attracts strict liability. However, as a theoretical matter, it is not necessarily clear why. Legislatures and courts have typically imposed strict liability where: (a) a defendant has notice of a plaintiff's rights, particularly where those rights involve a property interest; (b) a mens rea requirement on the part of the defendant would create an untenable burden on the plaintiff; (c) it is easier for the defendant to avoid harming the plaintiff than it is for the plaintiff to avoid the harm; or, (d) it is more administratively or economically efficient for the defendant to bear the risk …

Digital Copyright And Confuzzling Rhetoric, Peter K. Yu

Vanderbilt Journal of Entertainment & Technology Law

For more than a decade, policymakers, industry representatives, consumer advocates, civil libertarians, academic commentators, and user communities have advanced a wide array of arguments for or against online file sharing and restrictive copyright standards. This Article begins by introducing two short stories to illustrate the rhetorical and analytical challenges in the digital copyright debate. It then examines eight unpersuasive arguments advanced by both sides of the debate--four from the industry and four from its opponents. The Article concludes by outlining six different strategies to help the industry develop more convincing proposals for digital copyright reform.

What's In A Name?: Predictably Regulating Cyberfraud To Protect The Democratic Political Process, Whitney C. Boshers

Vanderbilt Journal of Entertainment & Technology Law

In recent elections, political candidates have capitalized on the Internet as a central organizing resource. As a result of the low-cost, high-reward nature of campaign websites, some candidates have begun to register Web addresses--or domains--in opponents' names in order to disrupt the democratic political process. Engaging in a practice known as cyberfraud, these individuals register for domains containing the candidate's name, such as 'firstnamelastname.com." Then, instead of finding themselves on the candidate's official campaign website, voters access a website operated by the candidate's opponent that contains misleading or outright false information. Unfortunately, most political candidates have little recourse for such …

Cut In Tiny Pieces: Ensuring That Fragmented Ownership Does Not Chill Creativity, Henry H. Perritt Jr.

Vanderbilt Journal of Entertainment & Technology Law

The market for video entertainment is growing and becoming more diverse as technology reduces barriers to entry for small, independent moviemakers and distributors and increases consumers' ability to access the media of their choice. The growing complexity of the market, however, increases transaction costs for new entrants who must obtain licenses to copyrighted music, characters, storylines, or scenes that they incorporate into their movies. The entertainment bonanza offered by new technologies may not be realized in practice because of market failure. The purposes of the Copyright and Patents Clause are frustrated because creators of new works wishing to use new …

Patently Impossible, Sean B. Seymore

Vanderbilt Law School Faculty Publications

The quest to achieve the impossible fuels creativity, spawns new fields of inquiry, illuminates old ones, and extends the frontiers of knowledge. It is difficult, however, to obtain a patent for an invention which seems impossible, incredible, or conflicts with well-established scientific principles. The principal patentability hurdle is operability, which an inventor cannot overcome if there is reason to doubt that the invention can really achieve the intended result. Despite its laudable gatekeeping role, this Article identifies two problems with the law of operability. First, though objective in theory, the operability analysis rests on subjective credibility assessments. These credibility assessments …

Patents As Escalators, Amelia S. Rinehart

Vanderbilt Journal of Entertainment & Technology Law

High technology companies commit time, effort, and resources to innovation. Over the course of a research and development project, an innovative company may face several sequential decisions regarding whether to continue to invest in the project and whether to commercialize the discoveries that have been made. Companies often seek patents early in the research and development process to receive the right to exclude others from practicing the invention. Given a current trend toward earlier and earlier patent filing, several scholars suggest that this strategy could leave many inventions underdeveloped; companies may treat patents like real options, deciding later where to …