Law Commons^™

The Second Coming Of Intellectual Property Rights In China, Peter K. Yu

Faculty Scholarship

This Article traces the development of intellectual property rights in China since the country’s reopening in the late 1970s. Part I provides a brief history of the Chinese intellectual property system and examines the various intellectual property disputes between China and the United States in the late 1980s and the early 1990s. This Part argues that the contemporary Chinese intellectual property system was not developed until intellectual property rights reemerged in China in the late 1970s. Part II discusses the causes of the piracy and counterfeiting problem in China. By focusing on the significant political, social, economic, cultural, and ideological …

Misstatements Of Fact In Adam Vangrack's Student Note: A Letter To The Editors Of The Washington University Law Quarterly, Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

The Quarterly's Fall 2001 issue published a Note reviewing our report, A Broken System: Error Rates in Capital Cases, 1973-1995. That Note has three inaccuracies that are so clear and frequently repeated, and are the result of such clear cite-checking lapses, that remedial steps are required. These matters do not involve differences of opinion, judgment, or interpretation between us and the Note's author. Matters of that sort are appropriately addressed in a response. All instead are misstatements of fact that result from the Quarterly's failure to fulfill its basic obligation to check the accuracy of verifiable factual statements it …

Extending The Revisionist Project, Lewis Grossman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Toward A Trademark-Based Liability System, Lynn M. Lopucki

UF Law Faculty Publications

No general rule of law renders trademark owners liable for products sold or business conducted under the trademark. This essay proposes the adoption of such a rule. The rationale for the change is that businesses are known by their trademarks, not their entity names, in the marketplace. The vast majority of customers - both businesses and consumers - select the persons with whom they will deal, and contract with those persons, on the basis of trademarks. The entity structures of businesses (corporate groups, franchises, joint ventures, etc.) are generally invisible to customers. Yet under current law the businesses' liabilities to …

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

Articles

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.

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

Articles

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 …

Patent Abolitionism, Mark D. Janis

Articles by Maurer Faculty

In this Article, Professor Janis argues that modem enthusiasm for large-scale legislative reforms in patent law should be received with caution in view of the history of patent law reform. That history suggests that patent law is more resilient--or perhaps more impervious to change-than modem reformers recognize. To explore these propositions, Professor Janis analyzes the history of the mid-Victorian era British patent abolitionism movement. He demonstrates that much of the reform dialogue of that era, from the elucidation of major problems in the patent system, to the formulation of legislative solutions, mirrors quite closely the modem U.S. patent reform debate. …

The Festo Decision And The Return Of The Supreme Court To The Bar Of Patents, John F. Duffy

Faculty Publications

No abstract provided.

Disruptive Technology And Common Law Lawmaking: A Brief Analysis Of A&M Records, Inc. V. Napster, Inc., Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

This symposium Article analyzes the Ninth Circuit's decision in A&M Records, Inc. v. Napster, Inc. After setting the stage with a comparison to the rise of cable television, and a description of the technologies underpinning Napster's service, the Article analyzes the doctrinal developments in the Ninth Circuit's opinion. The principal analytical points are that: (1) the court's definitions of "sampling" and "space-shifting" were overbroad, leading to oversimple fair use analysis; (2) the court's treatment of vicarious liablility for copyright infringement is doctrinally incoherent because it suggests that liability depends on whether a third party has "turn[ed] a blind eye" toward …

Comment On Data Protection Statutes And Bioinformatic Databases, Wendy J. Gordon

Faculty Scholarship

We have heard from the lawyer, the advocate's perspective of some of the legal issues involved in database protection and bioinformatics, and now we are going to hear an academic perspective on these issues. Professor Dennis Karjala is a professor at the Arizona State University College of Law with an interesting background. He has a Ph.D. in electrical engineering and taught in that field before going to law school at Boalt, and he is an internationally renowned expert on copyright law and computer law issues. Professor Karjala is going to talk to us about database protection issues. His presentation will …

Excuse And Justification In The Law Of Fair Use: Commodification And Market Perspectives, Wendy J. Gordon

Faculty Scholarship

Over twenty years ago, the Journal of the Copyright Society of the U.S.A. reprinted my article, "Fair Use as Market Failure" (82 Columbia Law Review 1600 (1982), available at: https://ssrn.com/abstract=3577724. That 1982 piece suggested that an underlying pattern governs the protean forms of "fair use", and I employed the notion of market failure to reveal and explain how the pattern functioned. Since then, some misunderstandings of my argument have arisen.

I am pleased to publish in this, the Fiftieth Anniversary issue of the Journal of the Copyright Society, a clarification – and partial amendment – of my position. As …

Trademark Exhaustion In The European Union: Community-Wide Or International?The Saga Continues, Irene Calboli

Research Collection Yong Pung How School Of Law

This Article analyzes the principle of "trademark exhaustion" or "first-sale rule" in the European Union (EU), with particular attention to the language and different interpretations of Article 7(1) of the First Council Directive 89 104 EEC of December 21, 1988. Traditionally, most jurisdictions define the extent of trademark exhaustion as either "national" or "international" exhaustion, depending on whether the rights granted by a mark are considered exhausted only in the domestic territory or also in foreign jurisdictions. Because of its nature as a regional integration of sovereign countries, the EU has historically favored a compromising approach toward the issue, and …

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

Faculty Articles

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 …

Subjecting Rembrandt To The Rule Of Law: Rule-Based Solutions For Determining The Patentability Of Business Methods, R. Carl Moy

Faculty Scholarship

This article is an attempt to refine the substantive law of patents as to reestablish the patent system's control over the determination of whether business methods are patentable. It offers a framework for addressing business methods that allows the system to stay focused on the traditional goals of the statutory subject-matter requirement. It solves some of the problems that modern business methods present. The problems that it does not solve, it at least explains in a manner that sheds some light on the nature of the tasks that remain. This article takes considerable notice of how the relevant legal rules …

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

Articles

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 …

Balancing Copyright Protections And Freedom Of Speech: Why The Copyright Extension Act Is Unconstitutional, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Fencing Off Ideas: Enclosure & The Disappearance Of The Public Domain, James Boyle

Faculty Scholarship

No abstract provided.

Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai

Faculty Scholarship

In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court …

Database Protection In A Global Economy, Jerome H. Reichman

Faculty Scholarship

In 1996, a database treaty that the European Commission had put forward, in connection with the WIPO negotiations on transmissions in cyberspace, ultimately failed to win the support of other regional groups. Since then, the inability of the United States Congress to enact any form of database legislation has stymied further multilateral undertakings on this topic. This impasse may soon be broken, however, owing to the change of Administrations and to the appointment of new committee chairmen in the United States House of Representatives.

This article will discuss the prospects for an international regulatory framework for non copyrightable databases in …

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

Articles

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 …

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

Articles

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 …