Law Commons^™

When All Else Fails: The Doctrine Of Foreign Equivalents As A Bar To Cultural Misappropriation, Stephanie H. Soh

William & Mary Law Review

This Note argues that under trademark law, the doctrine of foreign equivalents can be utilized to prevent some aspects of legally enforced cultural misappropriation. While it would be impossible to solve cultural misappropriation in one written piece, this Note proposes that the doctrine can serve to prevent applicants from obtaining trademark protections for certain foreign words.

Part I of this Note provides background on cultural misappropriation and the doctrine of foreign equivalents. Part II argues why the doctrine of foreign equivalents is poised to solve some of the harms of cultural misappropriation both in its structure and purpose. Part III …

Press Play To Presume: The Policy Benefits Behind The Trademark Modernization Act's Resurrection Of The Irreparable Harm Presumption In False Advertising Cases, Daniel Stephen

William & Mary Law Review

Part I of this Note provides background information on the history and principles surrounding injunctions generally, the Supreme Court’s rulings in eBay and Winter, federal courts’ rulings after these decisions, and the Trademark Modernization Act of 2020. Part II presents anti-presumption advocates’ arguments against the presumption due to longstanding equitable concerns and because, in their view, requiring a showing of irreparable harm is not too difficult. Lastly, Part III discusses why the irreparable harm presumption in the TMA serves as beneficial policy by presenting counterarguments to anti-presumption reasoning and additional benefits of the presumption.

This abstract has been taken …

There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco

William & Mary Law Review

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …

Discovering Ebay's Impact On Copyright Injunctions Through Empirical Evidence, Matthew Sag, Pamela Samuelson

William & Mary Law Review

This Article reports on new empirical evidence discrediting the widely held view that judges have resisted applying the Supreme Court’s teachings in eBay Inc. v. MercExchange, L.L.C. about injunctive relief in copyright cases. That 2006 patent law decision ruled that courts should not automatically issue injunctions upon a finding of infringement; instead, plaintiffs must prove their entitlement to injunctive relief. eBay had a seismic impact on patent litigation and greatly reduced the threat that small infringements could be leveraged into billion-dollar settlements. Yet prior empirical work, at least one major copyright law treatise, and many articles assert that eBay had …

Proving Copying, Shyamkrishna Balganesh, Peter S. Menell

William & Mary Law Review

Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …

Patent Prophylaxis: Expanding Access To Prep Through 28 U.S.C. § 1498, Jonathan A. Bell

William & Mary Law Review

Part I of this Note details the discovery of Truvada for PrEP [pre-exposure prophylaxis] and the ongoing patent infringement litigation brought by HHS [United States Department of Health and Human Services], discusses the patents currently held by CDC and Gilead, and examines the shortcomings of infringement litigation as a means to expand access to the drug. Part II analyzes the mechanism of march-in rights under the Bayh-Dole Act and discusses two previously attempted applications for the HIV-management drug ritonavir to demonstrate why march-in rights will always fail to expand access to life-saving medications or reduce costs to consumers. Part III …

Cannabis, Consumers, And The Trademark Laundering Trap, Viva R. Moffat, Sam Kamin, Tim Maffett

William & Mary Law Review

At the moment, cannabis companies cannot acquire federal trademark protection for their marijuana products because the ''lawful use" doctrine limits trademark registration to goods lawfully sold in commerce. Given that marijuana remains illegal under federal law, this may not sound like much of a problem, but it has serious consequences for consumers. Without trademark rights, one cannabis company can simply use the brand name of another, more prominent, company on its marijuana products, and consumers will assume that they are getting the products they have come to rely on, with potentially dangerous results. The current approach of the United States …

Endorsing After Death, Andrew Gilden

William & Mary Law Review

An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and have been increasingly embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Monroe’s name, have successfully brought false endorsement claims under section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a …

Withholding Injunctions In Copyright Cases: Impacts Of Ebay, Pamela Samuelson

William & Mary Law Review

Before the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C., which ruled that courts should exercise equitable discretion when considering whether to issue permanent injunctions in patent infringement cases, courts routinely granted injunctions in copyright cases when plaintiffs proved that defendants had infringed or had likely infringed copyrights. Such findings triggered presumptions of irreparable harm, which were almost never rebutted. Only rarely would courts consider a balancing of hardships or effects of injunctions on public interests.

In the first several years after eBay, commentators reported that eBay had had little impact on the availability of injunctive …

Reforming The Visual Artists Rights Act To Protect #Streetart In The Digital Age, Ellen Matthews

William & Mary Law Review

Consider the following: Building Owner commissions Artist to paint a mural on the wall of his building. A decade later, Business buys that building from Building Owner and, unaware of details relative to Artist’s wall mural, develops plans to renovate the building for a new use. Upon hearing of Business’s attempt to alter its newly acquired property, Artist seeks an injunction to prevent Business from restoring its building in a way that would change or destroy her mural. Would a court prevent Business from altering its building due to Artist’s moral rights to her work? If the court follows the …

Monopolizing Sports Data, Marc Edelman, John T. Holden

William & Mary Law Review

With legal sports betting viewed as a panacea for state budget woes across the United States, the underlying data that fuels the sports betting industry has emerged as an especially valuable asset. In the hopes of capitalizing on state laws that have now legalized sports betting, United States professional sports leagues have attempted to gain exclusive ownership rights over valuable sports betting data by asking legislators to mandate that bookmakers exclusively use data sold through the league. In addition, some sports leagues have imposed policies mandating that teams bundle together their collected data for purposes of selling it exclusively through …

Political Fair Use, Cathay Y. N. Smith

William & Mary Law Review

No abstract provided.

Judging Patents, Sapna Kumar

William & Mary Law Review

Patent litigation is regarded as the “neurosurgery of litigation.” To adjudicate these cases, judges must grasp complex technology underlying the claims at issue, notwithstanding the fact that many judges lack relevant science or technology backgrounds. This problem is compounded by the fact that judges generally lack access to neutral expertise, forcing them to rely upon party-hired experts for tutorials. By contrast, several European patent courts utilize technically qualified judges who work side by side with their legally trained counterparts to decide patent cases. The integration of technical expertise into the judiciary improves the speed of litigation, provides the court with …

Abandoning Copyright, Dave Fagundes, Aaron Perzanowski

William & Mary Law Review

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and case law on the subject is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for …

Artificial Stupidity, Clark D. Asay

William & Mary Law Review

Artificial intelligence is everywhere. And yet, the experts tell us, it is not yet actually anywhere. This is because we are yet to achieve artificial general intelligence, or artificially intelligent systems that are capable of thinking for themselves and adapting to their circumstances. Instead, all the AI hype—and it is constant—concerns narrower, weaker forms of artificial intelligence, which are confined to performing specific, narrow tasks. The promise of true artificial general intelligence thus remains elusive. Artificial stupidity reigns supreme.

What is the best set of policies to achieve more general, stronger forms of artificial intelligence? Surprisingly, scholars have paid little …

Nonexcludable Surgical Method Patents, Jonas Anderson

William & Mary Law Review

A patent consists of only one right: the right to exclude others from practicing the patented invention. However, one class of patents statutorily lacks the right to exclude direct infringers: surgical method patents are not enforceable against medical practitioners or health care facilities, which are the only realistic potential direct infringers of such patents. Despite this, inventors regularly file for (and receive) surgical method patents. Why would anyone incur the expense (more than $20,000 on average) of acquiring a patent on a surgical method if that patent cannot be used to keep people from using the patent?

The traditional answer …

Nerf This: Copyright Highly Creative Video Game Streams As Sports Broadcasts, Madeleine A. Ball

William & Mary Law Review

Since the 1980s, video games have grown exponentially as an entertainment medium. Once relegated to the niche subcultures of nerds, video games are now decidedly mainstream, drawing over 200 million American consumers yearly. As a result, the industry has stepped up its game. No longer simply a diversion to be enjoyed individually, Americans are increasingly watching others play video games like they might watch television. This practice, where enthusiastic gamers broadcast their video game session online to crowds of viewers, is called “live streaming.”

While streaming has become lucrative and popular, American copyright law currently nerfs this nascent industry. Streams …

The Internet Of Bodies, Andrea M. Matwyshyn

William & Mary Law Review

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal …

Patent Prior Art And Possession, Timothy R. Holbrook

William & Mary Law Review

Prior art in patent law defines the set of materials that the United States Patent and Trademark Office (USPTO) and courts use to determine whether the invention claimed in a patent is new and nonobvious. One would think that, as a central, crucial component of patent law, prior art would be thoroughly theorized and doctrinally coherent. Nothing could be further from the truth. The prior art provisions represent an ad hoc codification of various policies and doctrines that arose in the courts.

This Article provides coherency to this morass. It posits a prior art system that draws upon property law’s …

Custom-Edited Dna: Legal Limits On The Patentability Of Crispr-Cas9'S Therapeutic Applications, Noah C. Chauvin

William & Mary Law Review

No abstract provided.

Pleading Patent Infringement: Res Ipsa Loquitur As A Guide, Andrew L. Milam

William & Mary Law Review

No abstract provided.

The Nature Of Sequential Innovation, Christopher Buccafusco, Stefan Bechtold, Christopher Jon Sprigman

William & Mary Law Review

When creators and innovators take up a new task, they face a world of existing creative works, inventions, and ideas, some of which are governed by intellectual property (IP) rights. This presents a choice: Should the creator pay to license those rights? Or, alternatively, should the creator undertake to innovate around them? Our Article formulates this “build on/build around decision” as the fundamental feature of sequential creativity, and it maps a number of factors—some legal, some contextual—that affect how creators are likely to decide between building on existing IP or building around it. Importantly, creators are influenced by more than …

The Problem Of Creative Collaboration, Anthony J. Casey, Andres Sawicki

William & Mary Law Review

In this Article, we explore a central problem facing creative industries: how to organize collaborative creative production. We argue that informal rules are a significant and pervasive—but nonetheless underappreciated—tool for solving the problem. While existing literature has focused on how informal rules sustain incentives for producing creative work, we demonstrate how such rules can facilitate and organize collaboration in the creative space.

We also suggest that informal rules can be a better fit for creative organization than formal law. On the one side, unique features of creativity, especially high uncertainty and low verifiability, lead to organizational challenges that formal law …

Indefiniteness As An Invalidity Case, Janet M. Smith

William & Mary Law Review

No abstract provided.

Perverse Innovation, Dan L. Burk

William & Mary Law Review

An inescapable feature of regulation is the existence of loopholes: activities that formally comply with the text of regulation, but which in practice avoid the desired outcome of the regulation. Considerable ingenuity may be devoted to exploiting regulatory loopholes. Where technological regulation is at issue, such ingenuity may often be devoted to developing new technology that avoids the regulation; such innovation may be termed “perverse” because it is directed to avoiding the regulation that prompted it. Nonetheless, in this Article I argue that such regulatory circumvention may result in socially beneficial innovation. Drawing on insights from innovation policy in the …

Scope, Mark A. Lemley, Mark P. Mckenna

William & Mary Law Review

Virtually every significant legal doctrine in IP is either about whether the plaintiff has a valid IP right that the law will recognize (validity); whether the defendant’s conduct violates that right (infringement); or whether the defendant is somehow privileged to violate that right (defenses). IP regimes tend to separate doctrines in these three legal categories relatively strictly. They apply different burdens of proof and persuasion to infringement and validity. In many cases they ask different actors to decide one doctrine but not the other. And even where none of that is true, the nature of IP law is to categorize …

A Pasture Theory Of Creative Controls: A New Approach To Copyright And Patent Subject Matter Overgrowth, Maximilian Meese

William & Mary Law Review

No abstract provided.

Intellectual Property And The Presumption Of Innocence, Irina D. Manta

William & Mary Law Review

Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous works have argued that due process under the Sixth Amendment requires prosecutors to prove every element of a crime beyond a reasonable doubt, including the jurisdictional element. Applying this theory to criminal trademark counterfeiting results in the conclusion that prosecutors should have to demonstrate that an infringing mark needs to have traveled in or affected interstate commerce, which currently is not mandated. Parallel to this construction of the Commerce Clause, criminal prosecutors would also have to prove that Congress has the power …

Of Pornography Pirates And Privateers: Applying Fdcpa Principles To Copyright Trolling Litigation, Henry D. Alderfer

William & Mary Law Review

No abstract provided.

Why Manufacturing Matters: 3d Printing, Computer-Aided Designs, And The Rise Of End-User Patent Infringement, Sklyer R. Peacock

William & Mary Law Review

No abstract provided.