Law Commons^™

Artificial Intelligence, The Law-Machine Interface, And Fair Use Automation, Peter K. Yu

Faculty Scholarship

From IBM Watson's success in Jeopardy! to Google DeepMind's victories in Go, the past decade has seen artificial intelligence advancing in leaps and bounds. Such advances have captured the attention of not only computer experts and academic commentators but also policymakers, the mass media and the public at large. In recent years, legal scholars have also actively explored how artificial intelligence will impact the law. Such exploration has resulted in a fast-growing body of scholarship.

One area that has not received sufficient policy and scholarly attention concerns the law-machine interface in a hybrid environment in which both humans and intelligent …

Comments On Preliminary Draft 6, Jane C. Ginsburg, June M. Besek

Faculty Scholarship

We briefly reiterate the principal General Comments we made with respect to PD5, because PD6 continues, including in its two new sections, to manifest the same overall shortcomings: (i) the relationship of the draft to the statute remains highly inconsistent; (ii) the Restatement needs a consistent and transparent methodology for restating a statute; and (iii) continuing to carry on without clear methodological principles will undermine the utility of this project and the credibility of the ALI.

Overlapping Copyright And Trademark Protection In The United States: More Protection And More Fair Use?, Jane Ginsburg, Irene Calboli

Faculty Scholarship

This chapter addresses the phenomenon of overlapping rights under US law and complements Chapter 25 authored by Professors Derclay and Ng-Loy on the overlap of trademark, copyright, and design protection under several other Common Law and Civil Law jurisdictions. Because the United States does not provide sui generis protection for industrial design, but instead protects design through trademark law (notably by protecting trade dress) and design patents, this chapter focuses on the overlap between trademark and copyright protection. The Lalique bottles created for Nina Ricci perfumes, for example, may enjoy both trademark and copyright protection in the United States. Similarly, …

Fixing Informational Asymmetry Through Trademark Search, Jessica Silbey

Faculty Scholarship

I call this paper a “Levendowski special.” It follows the signature format of much of Professor Levendowski’s prior work which, as in the latest article, recruits a legal tool typically aimed at one set of problems for the purpose of cleverly addressing a different set of problems. Her past articles harnessed copyright law to “fix artificial intelligence’s implicit bias” (2018) and to “combat revenge porn.” (2014). This paper draws on Professor Levendowski’s expertise working in private practice as a trademark attorney to address the problem of surveillance technology opacity. It is a primer on how to investigate trademark …

Trade Mark Licensing And Covid-19: Why Fashion Companies Have A Duty To Comply With Their Legal Obligations, Irene Calboli

Faculty Scholarship

For the past several months, Covid-19 has dominated the intellectual property (IP) debate. Most discussions have focused on the implications of patent protection on access to treatments against the virus and a hopefully soon to be found vaccine. In these remarks, I would like to focus on another Covid-19 crisis making headlines across the world and partially related to IP: millions of workers in the garment industry in developing countries have been fired or furloughed as fashion companies have cancelled orders due to plunging sales since the pandemic’s beginning. Famous Western groups such as Inditex (Zara), C&A, Target, and Marks …

Trips And Its Contents, Peter K. Yu

Faculty Scholarship

In 2006, I published TRIPS and Its Discontents in a symposium commemorating the tenth anniversary of the WTO TRIPS Agreement. At that time, developing countries were deeply discontent with the Agreement and the new and higher intellectual property standards that the WTO had imposed upon them. By contrast, when the TRIPS Agreement was about to celebrate its twenty-fifth anniversary in April 2019, the developing countries' trenchant critiques of the Agreement were mostly gone. Also disappearing were their usual accusations of neoimperialism.

What has happened? Have developing countries successfully adjusted, or become sensitized, to the high intellectual property standards in the …

Reconsidering The Rationale For The Duration Of Data Exclusivity, Jonathan Kimball, Srividhya Ragavan, Sophia Vegas

Faculty Scholarship

The paper’s focus is the singular one question of whether the 12-years of exclusivity that was needed in 2008 remains justified in 2019 given that technological advancement reduces the cost and the time for drug discovery? Basically, new and emerging technologies are deployed every day to enhance efficiencies and reduce the time it takes to bring a drug to the market. The paper asserts that as new technologies are adopted and advances in scientific understanding are leveraged, it results in shorter drug development timelines. This factum, the paper asserts should have a bearing to reduce the period of exclusivity granted …

China's Innovative Turn And The Changing Pharmaceutical Landscape, Peter K. Yu

Faculty Scholarship

For more than a decade, China has been the world's leading supplier of active pharmaceutical ingredients. Today, it is not only the world's second largest pharmaceutical market, behind only the United States, but it also produces about four percent of the world's new pharmaceutical products. Despite these impressive accomplishments, China does not have internationally recognized pharmaceutical brands that are comparable to those found in Europe or the United States, such as Johnson & Johnson, Merck, Novartis, Pfizer, Roche and Sanofi. Nor does China rival India in its status as the "pharmacy of the world," providing generic drugs to needy countries …

The Normative Molecule: Patent Rights And Dna, Saurabh Vishnubhakat

Faculty Scholarship

Throughout the biotechnology age, fears about the distortionary effects of property and other legal institutions upon the health and self-determination of individuals and societies have accompanied more popularly sensational fears about unscrupulous choices within the scientific community itself. Still, for most of that time the prevailing legal regime both in the United States and in Europe remained generally permissive of ownership of, and exclusionary power over, the fruits of much biomedical research, though this leniency took different forms and came about in different ways. In particular, the policy of the United States Patent and Trademark Office to grant patents on …

Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide, Wendy J. Gordon

Faculty Scholarship

In Oracle America, Inc. v. Google LLC, the Federal Circuit undermined copyright law’s deference to patent law and, in doing so, delivered a blow to both regimes. Copyright’s deference— including a historic refusal to enforce rights that might undermine the public’s liberty to copy unpatented inventions-- is a necessary part of preserving inventors’ willingness to accept the short duration, mandatory disclosure, and other stringent bargains demanded by patent law. Deference to patent law is also integral to copyright law’s interior architecture; copyright’s refusal to monopolize functional applications of creative work lowers the social costs that would otherwise be imposed by …

Automation In Moderation, Hannah Bloch-Wehba

Faculty Scholarship

This Article assesses recent efforts to encourage online platforms to use automated means to prevent the dissemination of unlawful online content before it is ever seen or distributed. As lawmakers in Europe and around the world closely scrutinize platforms’ “content moderation” practices, automation and artificial intelligence appear increasingly attractive options for ridding the Internet of many kinds of harmful online content, including defamation, copyright infringement, and terrorist speech. Proponents of these initiatives suggest that requiring platforms to screen user content using automation will promote healthier online discourse and will aid efforts to limit Big Tech’s power.

In fact, however, the …

Can Algorithms Promote Fair Use?, Peter K. Yu

Faculty Scholarship

In the past few years, advances in big data, machine learning and artificial intelligence have generated many questions in the intellectual property field. One question that has attracted growing attention concerns whether algorithms can be better deployed to promote fair use in copyright law. The debate on the feasibility of developing automated fair use systems is not new; it can be traced back to more than a decade ago. Nevertheless, recent technological advances have invited policymakers and commentators to revisit this earlier debate.

As part of the Symposium on "Intelligent Entertainment: Algorithmic Generation and Regulation of Creative Works," this Article …

Comments On Preliminary Draft 5 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

We appreciate the considerable work that has gone into PD5, and believe that several of its provisions and Comments accurately quote or state and explain the law. Nonetheless, PD5 manifests several of the earlier drafts’ shortcomings. We remain particularly concerned that the relationship of this draft to the statute remains highly inconsistent, not to say erratic. We are not sanguine that our oft-repeated calls that the Reporters and ALI devise a consistent and transparent methodology for restating a statute will finally be heeded. (To the extent there is a guiding principle behind this Restatement, and PD5, it often appears to …

Can International Patent Law Help Mitigate Cancer Inequity In Lmics?, Srividhya Ragavan, Amaka Vanni

Faculty Scholarship

Although low- and middle-income countries (LMICs) bear 75% of the cancer burden globally, their available resources to treat cancer constitute less than 5% of global health resources. This inequity makes it imperative to take appropriate measures to treat and prevent cancer in LMICs, which should include consideration of trade and patent policies. This article highlights some impediments to effective use of existing policies to promote access to treatment and prevention measures in LMICs and offers recommendations about next steps.

A Typology Of Disclosure, Sharon Sandeen

Faculty Scholarship

Information and data have always been valuable to businesses, but in the Information Age, as businesses have figured out more ways to commoditize the information and data they possess, there has been a corresponding increase in expressed concerns about the unauthorized “disclosure” of information. Often, these concerns are expressed in absolute terms, as if any unauthorized disclosure of information constitutes an act of unfair competition or theft. The problem is that the common understanding of disclosure, particularly among information owners that seek to restrict access to the information they possess, belies the legal meaning of the term as used in …

How Conceptual Art Challenges Copyright's Notions Of Authorial Control And Creativity, Christopher Buccafusco

Faculty Scholarship

No abstract provided.

The Trump Administration’S Social Security Rules Will Harm Innovation In The Assistive Technology Industry And People With Disabilities, Christopher Buccafusco, Mariel Talmage

Faculty Scholarship

No abstract provided.

Copyright Exceptions Across Borders: Implementing The Marrakesh Treaty, Laurence R. Helfer, Molly K. Land, Ruth L. Okediji

Faculty Scholarship

This article reviews state ratification and implementation of the Marrakesh Treaty since its conclusion in 2013. We find that most states have adhered closely to the Treaty’s text, thus creating a de facto global template of exceptions and limitations that has increasingly enabled individuals with print disabilities, libraries and schools to create accessible format copies and share them across borders. The article argues that the Marrakesh Treaty’s core innovation—mandatory exceptions to copyright to promote public welfare—together with consultations with a diverse range of stakeholders, may offer a model for harmonising human rights and IP in other contexts.

Against Progress: Interventions About Equality In Supreme Court Cases About Copyright Law, Jessica Silbey

Faculty Scholarship

This symposium essay is adapted from my forthcoming book Against Progress: Intellectual Property and Fundamental Values in the Internet Age (Stanford University Press 2021 forthcoming). The book’s primary argument is that, with the rise of digital technology and the ubiquity of the internet, intellectual property law is becoming a mainstream part of law and culture. This mainstreaming of IP has particular effects, one of which is the surfacing of on-going debates about “progress of science and the useful arts,” which is the constitutional purpose of intellectual property rights.

In brief, Against Progress describes how in the 20th century intellectual property …

Disability And Design, Christopher Buccafusco

Faculty Scholarship

When scholars contemplate the legal tools available to policymakers for encouraging innovation, they primarily think about patents. If they are keeping up with the most recent literature, they may also consider grants, prizes, and taxes as means to increase the supply of innovation. But the innovation policy toolkit is substantially deeper than that. To demonstrate its depth, this Article explores the evolution of designs that help people with disabilities access the world around them. From artificial limbs to the modern wheelchair and the reshaping of the built environment, a variety of legal doctrines have influenced, for better and for worse, …

Do We Need A New Conception Of Authorship?, Shyamkrishna Balganesh

Faculty Scholarship

Thank you to the organizers for having me. I’m delighted to be here. I’m going to take a step away from conceptual art, and go a little bit into history and a little bit into doctrine – and do the usual law professor thing. We law professors like to say that one of the great things about the job is that we get to overrule the Supreme Court ten thousand times a day, but the bad thing about the job is no one cares. And so, I’m going to try and make this such that you care.

Here’s the core …

Copyright Protection For Applied Art And Works Of Artistic Craftsmanship After Star Athletica, Jane C. Ginsburg

Faculty Scholarship

As the very first session proclaimed, the Star Athletica case has not been a model of total clarity on the Supreme Court’s part. I’m going to explore that proposition. I will go through some basic elements of the copyright statute, and will then apply those rules to several examples. The Copyright Act sets out the category of pictorial, graphic, and sculptural (“PGS”) works, whose statutory definition includes applied art. That was the subject matter at issue in Star Athletica. The statute also provides that PGS works “shall include works of artistic craftsmanship insofar as their form but not their mechanical …

Letter To Council Members Regarding Council Draft 4, Jane C. Ginsburg

Faculty Scholarship

We understand that the ALI Council will consider Council Draft 4 (CD4) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on January 16-17, 2020. We appreciate the opportunity to provide comments on CD4. We hope that you will give careful consideration to these comments and send CD4 back to the Reporters to address the problems we describe below.

Response To Oliar And Stern: On Duration, The Idea/Expression Dichotomy, And Time, Wendy J. Gordon

Faculty Scholarship

Courts often use possession to determine who should own unclaimed resources. Yet, as Oliar and Stern demonstrate, the concept of possession is little more than a metaphor, capable of being applied to a broad range of phenomena. The authors helpfully deploy “time” as a metric to sort through the rules determining what should count as possession, and they survey the likely costs and benefits attached to choosing earlier versus later events as triggers for acquiring title.

With those tools in hand, Oliar and Stern employ “time” and the analogy of physical possession to address problems in copyright, patent, and trademark …

Traditional Knowledge In Taiwan: A Call For Greater Participation Of Indigenous Peoples In The Global Intellectual Property Marketplace, James M. Cooper

Faculty Scholarship

This Article explores the plight of the Aborigines of Taiwan and the legal protections that exist for their Traditional Knowledge. While Taiwan continues to face international isolation with a diminished number of states recognizing the Republic of China as the seat of China, the island's government has taken limited steps to recognize language, cultural, and economic rights of its Indigenous peoples. International law has not been helpful in protecting Traditional Knowledge, but Taiwan could use its vast economic resources and positive track record in protecting some of these rights to further its goals of international recognition. This Article details the …

Artificial Intelligence Inventions & Patent Disclosure, Tabrez Y. Ebrahim

Faculty Scholarship

Artificial intelligence (“AI”) has attracted significant attention and has imposed challenges for society. Yet surprisingly, scholars have paid little attention to the impediments AI imposes on patent law’s disclosure function from the lenses of theory and policy. Patents are conditioned on inventors describing their inventions, but the inner workings and the use of AI in the inventive process are not properly understood or are largely unknown. The lack of transparency of the parameters of the AI inventive process or the use of AI makes it difficult to enable a future use of AI to achieve the same end state. While …

Patents, Information, And Innovation, Brenda M. Simon

Faculty Scholarship

Inventors and commercialization partners often rely on patents to facilitate the exchange of sensitive information. Most scholarship in this area has focused on the areas of software and biotechnology. To provide a richer description of the role of patents in the innovative process, this project evaluates the existing literature and sets forth examples drawn from a series of interviews with professionals from the largely-overlooked medical device industry. The limited analysis of the medical device industry has focused on the largest few dozen firms—as publicly-traded entities, a great deal of data about them is readily available. Small medical device companies are …

National Cybersecurity Innovation, Tabrez Y. Ebrahim

Faculty Scholarship

National cybersecurity plays a crucial role in protecting our critical infrastructure, such as telecommunication networks, the electricity grid, and even financial transactions. Most discussions about promoting national cybersecurity focus on governance structures, international relations, and political science. In contrast, this Article proposes a different agenda and one that promotes the use of innovation mechanisms for technological advancement. By promoting inducements for technological developments, such innovation mechanisms encourage the advancement of national cybersecurity solutions. In exploring possible solutions, this Article asks whether the government or markets can provide national cybersecurity innovation. This inquiry is a fragment of a much larger literature …

Trade Secrets And The Right To Information: A Comparative Analysis Of E.U. And U.S. Approaches To Freedom Of Expression And Whistleblowing, Sharon Sandeen, Ulla-Maija Mylly

Faculty Scholarship

Both the EU Trade Secrets Directive and US trade secret law seek to balance the protection of trade secrets against other values, including freedom of expression, but the EU Trade Secret Directive is more explicit about the need to do so. This article examines EU and US trade secret law through the right to information, a recognized human right under the Universal Declaration of Human Rights and implementing laws and conventions. In particular, it discusses how principles of freedom of expression and whistleblowing should apply in the trade secret context in the EU and U.S.

Intellectual Property Law And Redressive Autonomy, Shyamkrishna Balganesh

Faculty Scholarship

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes — known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning.