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Articles 61 - 71 of 71
Full-Text Articles in Law
Patents On Legal Methods? No Way!, Andrew A. Schwartz
Patents On Legal Methods? No Way!, Andrew A. Schwartz
Publications
An “invention,” as used in the United States patent laws, refers to anything made by man that employs or harnesses a law of nature or a naturally occurring substance for human benefit. A watermill, for instance, harnesses the power of gravity to run machinery. But legal methods, such as tax strategies, are not inventions in this sense, because they employ “laws of man” — not laws of nature to produce a useful result.
The (Boundedly) Rational Basis Of Trademark Liability, Jeremy N. Sheff
The (Boundedly) Rational Basis Of Trademark Liability, Jeremy N. Sheff
Faculty Publications
This article argues that trademark infringement and dilution are best understood as commercial behavior that manipulates the cognitive biases of consumers, and as such threatens to render their heuristic judgments persistently inaccurate. In this view, trademark liability—whether imposed under the label of infringement or dilution—serves neither to protect property rights of trademark owners, nor to protect them against the unfair trade practices of competitors, but to shape consumer markets in such a way as to conform to the innate cognitive processes of boundedly rational consumers. The trademark regime can thus be understood as a legal apparatus designed (albeit perhaps unconsciously) …
Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh
Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh
All Faculty Scholarship
The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …
Judging Art, Christine Farley
Judging Art, Christine Farley
Articles in Law Reviews & Other Academic Journals
What is art? Surprisingly, this question is addressed in various places in the law. At these junctures, courts typically attempt to avoid making a judgment. Indeed, the law generally resists any definition of art. The reasons given for this are that these determinations are too subjective for the courts and that judges lack proper training and expertise. Thus, the doctrine of avoidance is the most stable and explicitly stated proposition to be found in these encounters. However, the question of whether an object is a work of art for treatment under the law is often unavoidable. This question gets resolved …
Copyright And Free Expression: The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh
Copyright And Free Expression: The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh
All Faculty Scholarship
Recent attempts to expand the domain of copyright law in different parts of the world have necessitated renewed efforts to evaluate the philosophical justifications that are advocated for its existence as an independent institution. Copyright, conceived of as a proprietary institution, reveals an interesting philosophical interaction with other libertarian interests, most notably the right to free expression. This paper seeks to understand the nature of this interaction and the resulting normative decisions. The paper seeks to analyze copyright law and its recent expansions, specifically from the perspective of the human rights discourse. It looks at the historical origins of modern …
Recent Developments In Copyright Law: Technology And International Trade Play Starring Roles, Mary Lafrance
Recent Developments In Copyright Law: Technology And International Trade Play Starring Roles, Mary Lafrance
Scholarly Works
The once staid field of copyright law has undergone a dramatic revolution in recent years, as new technologies and international trade pressures have spurred legislative change, while challenging the federal courts to find answers to those questions that Congress has not resolved or, in some cases, to questions that recent acts of Congress have created. This article explores recent developments in copyright law in 2002.
Simultaneous Copyright And Trade Secret Claims: Can The Copyright Misuse Defense Prevent Constitutional Doublethink?, Ralph D. Clifford
Simultaneous Copyright And Trade Secret Claims: Can The Copyright Misuse Defense Prevent Constitutional Doublethink?, Ralph D. Clifford
Faculty Publications
As the Constitution authorizes Congress to grant copyrights, it subjects the power to a public purpose requirement. Any monopoly Congress grants must be for the purpose of “promot[ing] the progress of science and useful arts.” But one result of Congress enacting the 1976 Act is a potential conflict between the Act and this public purpose requirement. An owner of intellectual property may believe that both copyright law – which mandates disclosure – and trade secret law – which mandates secrecy – can be used simultaneously. To believe that disclosure and secrecy can coexist is doublethink as both cannot be true. …
The Federal Circuit’S Cruise To Uncharted Waters: How Patent Protection For Algorithms And Business Methods May Sink The Ucita And State Intellectual Property Protection, Ralph D. Clifford
The Federal Circuit’S Cruise To Uncharted Waters: How Patent Protection For Algorithms And Business Methods May Sink The Ucita And State Intellectual Property Protection, Ralph D. Clifford
Faculty Publications
The realm of intellectual property law now changes at an incredible pace, with the courts discarding venerable concepts rapidly. This is not surprising as the transition from a goods-based society to one based on information increases the importance of intellectual property law. Nowhere has this been more apparent than the Federal Circuit’s recent reworking of the scope of federal patent law. Today, it is difficult to imagine anything for which a patent cannot be sought and received. Furthermore, the expansion of the patent law’s scope has a corresponding impact on state powers. Because the patent law serves to implicitly preempt …
Still Adjusting To Markman: A Prescription For The Timing Of Claim Construction Hearings, William Lee, Anita Krug
Still Adjusting To Markman: A Prescription For The Timing Of Claim Construction Hearings, William Lee, Anita Krug
All Faculty Scholarship
In Markman v. Westview Instruments, Inc., the Supreme Court held that the interpretation of patent claims is a question of law to be determined by the court rather than a question of fact to be decided by the jury. The Court based its holding on the belief that judges are better suited than juries to address claim interpretation issues and that claim interpretation by the court would result in greater uniformity in the treatment of patents. The Markman decision, however, has confronted the district courts with a host of thorny questions, such as what evidence they may consider in their …
Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke
Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke
Faculty Scholarship
In the last few years, the Internet has increasingly become a source of information even for the historically computer illiterate. The growing popularity of the Internet has been driven in large part by the World Wide Web (web). The web is a system that facilitates use of the Internet by helping users sort through the great mass of information available on it. The web uses software that allows one document to link to and access another, and so on, despite the fact that the documents may reside on different machines in physically remote locations. The dispersion of data that is …
What's Art Got To Do With It?, Wendy J. Gordon
What's Art Got To Do With It?, Wendy J. Gordon
Scholarship Chronologically
I would like to thank the Cardozo LR for their invitation to speak, and all those who have taken the time to discuss this issue w[ith] me in the recent past, including my commentator Marci Hamilton. I also thank the audience for its attendance and attention, and I look forward to the criticisms/reactions from all of you and from Prof Hamilton.