Law Commons^™

Rights Of Access And The Shape Of The Internet, Michael J. Madison

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This Article reviews recent developments in the law of access to information, that is, cases involving click-through agreements, the doctrine of trespass to chattels, the anti-circumvention provisions of the Digital Millennium Copyright Act, and civil claims under the Computer Fraud and Abuse Act. Though the objects of these different doctrines substantially overlap, the different doctrines yield different presumptions regarding the respective rights of information owners and information consumers. The Article reviews those presumptions in light of different metaphorical premises on which courts rely: Internet-as-place, in the trespass, DMCA, and CFAA contexts, and contract-as-assent, in the click-through context. It argues that …

Icann's "Uniform Dispute Resolution Policy"- Causes And (Partial) Cures, A. Michael Froomkin

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No abstract provided.

Legal Protection For Software: Still A Work In Progress, Robert W. Gomulkiewicz

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Software began as geekware-something written by programmers for programmers. Now, software is a business and consumer staple. Cryptic character-based user interfaces have given way to friendly graphical ones; multi-media is everywhere; people own multiple computers of varying sizes; computers are connected to one another across the globe; email and instant electronic messages have replaced letters and telephone calls for many people.

The issue of whether the law should protect software seems quaint to us now. Over the past twenty-five years, legislatures and courts have concluded that copyright, patent, trade secret, trademark, and contract law all can be used to protect …

Rethinking The United States First-To-Invent Principle From A Comparative Law Perspective: A Proposal To Restructure § 102 Novelty And Priority Provisions, Toshiko Takenaka

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This Article first examines the novelty and priority provisions of first-to-file countries, and then compares them with U.S. counterparts to identify major differences and determine why these differences result. The Article discusses the origins of the complex structure adopted by § 102 to define prior art and the difficult interpretation given to terms used in the novelty definition. This Article then reviews the USPTO's practice of the novelty examination and the priority determination in interference proceedings. This review confirms the first-to-file patent professional's perception that the United States, in fact, follows the first-to-file principle, although it also provides an exception …

Commercial Law Collides With Cyberspace: The Trouble With Perfection – Insecurity Interests In The New Corporate Asset, Xuan-Thao Nguyen

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The recent downturn in the economy, particularly in the e-commerce sector, reveals many e-companies heading toward bankruptcy with cyberassets, such as domain names, as their most valuable corporate assets. Lending institutions and other creditors that have extended loans to such e-companies obviously want to get their hands on these bankrupt estates. Which creditor will have priority in the new cybercollateral of domain names? The answer to creditor priority questions may depend on whether domain names are intangible property for purposes of secured transactions. If so, should security interests in domain names be perfected under the Uniform Commercial Code or under …

Cyberproperty And Judicial Dissonance: The Trouble With Domain Name Classification, Xuan-Thao Nguyen

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The nature of cyberspace continues to be woven into the fabric of our daily existence. Not surprisingly, cyberspace and the expansion of e-commerce pose challenges to existing law, particularly the legal definition of cyberproperty domain names. The nature of cyberspace allows many e-companies to possess no traditional assets such as buildings and inventories. Some e-companies own few computers, often using service providers to maintain their web sites. In the virtual space that e-companies inhabit, the primary assets that e-companies own are intangibles such as domain names, customer information, and intellectual property that includes business method patents, copyrights, and trademarks.

Domain …

How Extra-Copyright Protection Of Databases Can Be Constitutional, Justin Hughes

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Following the Supreme Court's 1991 Feist decision, intellectual property and Constitutional law scholars have debated whether extra-copyright protection of databases can be established by Congress under its Commerce Clause power. This article presents the problem as one of the gravitational zone of the Commerce Clause versus that of the Copyright and Patent Clause. The article reasons that the Supreme Court decisions in International News Service v. Associated Press, Zacchini v. Scripps-Howard, and the 19th century Trademark Cases all point to the possibility of limited protection of databases under the Commerce Clause. The Article also considers the constitutionality of extra-copyright protection …

De-Bugging Open Source Software Licensing, Robert W. Gomulkiewicz

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Home computer users and businesses often rely on software developed by unconventional programmers known as "hackers." Hackers claim that the code they develop is superior in quality to the code developed by commercial software firms because hackers freely share the code they develop. This code sharing enables a multitude of programmers from around the world to rapidly find and fix bugs. The legal mechanism that enables hackers to deploy this worldwide team of de-buggers is a license agreement or, to be more precise,an assortment of license agreements known as "open source" licenses.

Although open source software developers may regularly fix …

Public Vs. Proprietary Science: A Fruitful Tension?, Rebecca S. Eisenberg, Richard R. Nelson

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What should be public and what should be private in scientific research? The competitive sprint of public and private laboratories to complete the sequence of the human genome has brought this question to the fore. The same question frames the developing struggle over terms of access to human embryonic stem cell lines and the conflict between Microsoft and the open source movement over how best to promote software development. We expect such conflicts to become more widespread as the role of for-profit research expands in a broader range of scientific fields. Will science progress more swiftly and fruitfully if its …

Digital Copyright And The "Progress Of Science, Jessica D. Litman

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Let me start with a truism: Networked digital technology has transformed information and the way we interact with it. Digital information is dynamic rather than fixed. What we think of as “documents” can change constantly. That’s challenged our notions of what it means to archive material.

Shifting The Paradigm In E-Commerce: Move Over Inherently Distinctive Trademarks, The E-Brand, I-Brand And Generic Domain Names Ascending To Power?, Xuan-Thao Nguyen

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“What's in a name!” laments Juliet at her Shakespearean balcony. Four hundred years later, in the world of e-commerce, Juliet's question would be “What's in a domain name?” After spending all of the Montague's wealth, Romeo might be able to respond, “Call me but love.com.” The price tag for some generic domain names cost a small fortune: Sex.com for $250 million, Business.com for $7.5 million, Broadband.com for $6 million, Loans.com for $3 million, Flu.com for $1.4 million, and Bingo.com for $1.1 million.

In 1995, Procter and Gamble registered hundreds of generic domain names and offered them for sale at auction …

Commentary: International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

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The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection—or variations in that protection—hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing …

Should It Be A Free For All? The Challenge Of Extending Trade Dress Protection To The Look And Feel Of Web Sites, Xuan-Thao Nguyen

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In the e-commerce world, a company's web site becomes the primary communication center with the customer. The web site is where the company displays products, presents marketing materials, and provides sales and post-sales support. Increasingly, companies are spending valuable resources to build and maintain their web sites. With the rapid change in web technology, many web sites now feature more than just ordinary text. Color, clipart, graphics, designs, animations, and sounds are now part of the overall appearance of web sites. Yet copying an image from a web site is just one click away. What protection is available to the …

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

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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 …

International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

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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.

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

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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).

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

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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 …

Patent Infringement Damages In Japan And The United States: Will Increased Patent Infringement Damage Awards Revive The Japanese Economy?, Toshiko Takenaka

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This Article will look at the impact of the new Japanese legislation on patent infringement damages and will discuss whether the increase in damage awards contributes to the creation of breakthrough technology. To understand this impact, Part I will discuss pre-1998 legislation damages and highlight the difference between damages awarded by United States courts and those awarded by Japanese courts, by comparing United States and Japanese case examples. In examining the general tort and patent law theories, Part I will also try to identify the source of the difference and discuss how this difference is reflected in current United States …

Analyze This: A Law And Economics Agenda For The Patent System, Rebecca S. Eisenberg

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Legal scholars and economists might enhance the value and impact of their work by making more effective use of each other's knowledge and capabilities. Legal scholars can offer a more nuanced understanding of the legal rules that underlie the patent system and the doctrinal levers that might be manipulated in furtherance of public policy goals. Economists bring to bear a set of analytical and methodological tools that could shed considerable light on what these doctrinal levers are doing and which of them we ought to be manipulating. Together, we have a better chance of asking the right questions and thinking …

Patent Infringement Damages In Japan And The United States: Will Increased Patent Infringement Damage Awards Revive The Japanese Economy?, Toshiko Takenaka

Articles

Accordingly, this Article will look at the impact of the new Japanese legislation on patent infringement damages and will discuss whether the increase in damage awards contributes to the creation of breakthrough technology. To understand this impact, Part I will discuss pre-1998 legislation damages and highlight the difference between damages awarded by United States courts and those awarded by Japanese courts, by comparing United States and Japanese case examples. In examining the general tort and patent law theories, Part I will also try to identify the source of the difference and discuss how this difference is reflected in current United …

A Circus Among The Circuits: Would The Truly Famous And Diluted Performer Please Stand Up? The Federal Trademark Dilution Act And Its Challenges, Xuan-Thao Nguyen

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Sometimes, nothing is more painful than the truth. Congress passed the celebrated Federal Trademark Dilution Act of 1995 (“the Act” or the “Dilution Act”) with great hope that it would create a uniform anti-dilution law, end forum shopping, and encourage trademark owners to build brand equity with more ease. Congress was overwhelmingly in favor the Act, and thus passed it with little debate, leaving behind a sparse congressional record. In its haste to pass the Act, Congress failed to address whether the Act extends to product design marks; whether the Act requires proof of actual economic harm, or if likelihood …

The Promise And Perils Of Strategic Publication To Create Prior Art: A Response To Professor Parchomovsky, Rebecca S. Eisenberg

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In a provocative recent article in the Michigan Law Review, Professor Gideon Parchomovsky observes that a firm racing with a competitor to make a patentable invention might find it strategically advantageous to publish interim research results rather than risk losing a patent race. This strategy exploits legal rules limiting patent protection to technological advances that are new and "nonobvious" in light of the "prior art" or preexisting knowledge in the field. By publishing research results, a firm adds to the prior art and thereby limits what may be patented in the future. Parchomovsky posits that, before it is able to …

Re-Examining The Role Of Patents In Appropriating The Value Of Dna Sequences, Rebecca S. Eisenberg

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As public and private sector initiatives race to complete the sequence of the human genome, patent issues have played a prominent role in speculations about the significance of this achievement. How much of the genome will be subject to the control of patent holders, and what will this mean for future research and the development of products for the improvement of human health? Is a patent system developed to establish rights in mechanical inventions of an earlier era up to the task of resolving competing claims to the genome on behalf of the many sequential innovators who elucidate its sequence …

Complexity And Copyright In Contradiction, Michael J. Madison

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The title of the article is a deliberate play on architect Robert Venturi's classic of post-modern architectural theory, Complexity and Contradiction in Architecture. The article analyzes metaphorical 'architectures' of copyright and cyberspace using architectural and land use theories developed for the physical world. It applies this analysis to copyright law through the lens of the First Amendment. I argue that the 'simplicity' of digital engineering is undermining desirable 'complexity' in legal and physical structures that regulate expressive works.

The New Wild West: Measuring And Proving Fame And Dilution Under The Federal Trademark Dilution Act, Xuan-Thao Nguyen

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The passage of the Federal Trademark Dilution Act of 1995 (the Dilution Act or Act) has been widely celebrated, as evidenced by the number of related articles, speeches and symposia. Commentators who applauded the adoption of the Dilution Act believed that a dilution claim would now be easier to prove by trademark owners against diluters because trademark owners would not have to establish the troublesome factual issue of consumer confusion. The courts have embraced the Act, and it has already proven to be an effective weapon for trademark owners. One court has even suggested trademark owners asserting claims of dilution …

The Dilemma Of Intellectual Property Piracy In China, Jennifer S. Fan

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This Article analyzes the effectiveness of China's intellectual property laws and the role they play in China's foreign trade and investment. It gives an overview of how intellectual property laws developed in China and explains why they have been inadequate, especially with respect to the protection of the interests of U.S. companies. It then illustrates why America's response to the piracy of intellectual property has been largely ineffective. The Article explains why China's strides in intellectual property law have fallen short of expectations and offers alternative methods of protecting intellectual property rights in China.

The Antitrust Duty To Deal And Intellectual Property Rights, James C. Burling, William F. Lee, Anita K. Krug

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This Article discusses how courts have addressed so-called ‘"duty-to-deal" antitrust claims involving intellectual property, and what they should do in those circumstances to ensure appropriate deference to the competition goals of intellectual property doctrine.

Part II discusses duty-to-deal principles in the general case, where intellectual property rights are not at issue, noting that hard and fast rules have yet to emerge.

Part III discusses the approaches courts have taken in the intellectual property context and contends that, although many courts have conducted their analyses with a view to the objectives of patent law, at least two have not, with potentially …

The Use Of Preclusion Doctrine, Antisuit Injunctions, And Forum Non Conveniens Dismissals In Transnational Intellectual Property Litigation, Peter Nicolas

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Conflicting standards among the federal circuits over the applicability of inherent powers in the transnational intellectual property context and the divided authority regarding the jurisdiction of U.S. federal courts over foreign intellectual property claims severely hamper the ability of federal district courts to use these tools in such a manner so as to prevent parties in transnational intellectual property suits from engaging in strategic behavior. This Comment seeks to reconcile these conflicts where possible and, where irreconcilable, to demonstrate that the text and history of federal statutes conferring subject matter jurisdiction on federal courts and placing limits on their issuance …

The Empire Strikes Back, A. Michael Froomkin

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No abstract provided.

An Economic Analysis Of Intellectual Property Rights: Justifications And Problems Of Exclusive Rights, Incentives To Generate Information, And The Alternative Of A Government Run Reward System, Steve Calandrillo

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This article examines and questions the traditional justifications for intellectual property (I.P.) rights in America (focusing on copyright and patent law), and explores incentives necessary to induce the creation of these works of information. I conclude that changes are needed to I.P. law in order to best foster society's dual goals of 1) promoting incentives to create I.P. works (such as currently patented drugs), while also 2) maximizing distribution of those products to all consumers who would stand to gain (and not merely those who can afford the monopoly price charged). Hence, I suggest the creation of a Government-Run Reward …