Law Commons^™

If Per Se Is Dying, Why Not In Tv Tying? A Case For Adopting The Rule Of Reason Standard In Television Block- Booking Arrangements, Nicole Labletta

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Battle Of The Music Industry: The Distribution Of Audio And Video Works Via The Internet, Music And More, David Balaban

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Copyright Preemption And The Right Of Publicity, Jennifer E. Rothman

All Faculty Scholarship

This article addresses the conflict between an ever-expanding right of publicity and the federally guaranteed rights provided by copyright law. This conflict is highlighted in the Wendt v. Host International case in which the actors George Wendt and John Ratzenberger from Cheers used the right of publicity to prevent the show's creators from licensing the use of the Norm and Cliff characters in the decor of a chain of airport bars. Even though the licensing of the characters was explicitly allowed under copyright law, the Ninth Circuit held that the right of publicity prevented the creators from doing so. Similarly, …

4th Annual Computer & Technology Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 4th Annual Computer & Technology Law Institute held by UK/CLE in November 2002.

Testing The Admissibility Of Trademark Surveys After Daubert, Artemio Rivera

Artemio Rivera

To be admissible, a survey must apply the principles of survey research to the target population in a reliable manner, and base its results upon sufficient interviews and responses. These requirements make clear that the existence of flaws in a survey is not simply a matter of weight to be resolved by the fact finder, but an issue of admissibility that must be determined by the courts as part of their gate keeping duties.

Open Source, Open Arms: An Open-Ended Question, Alana Maurushat

Canadian Journal of Law and Technology

This paper is structured to address several aspects and challenges to the open source movement. Beginning with an outline of the historical and cultural components of the open source movement, the paper will move on to explore the economic and philosophical underpinnings of intellectual property. It will be demonstrated that open source finds itself uniquely situated within these theories and doctrines. The questions that open source poses for intellectual property will then be examined. My arguments will stem from the general premise that open source is threatened by three mechanisms: the uncertainty of the validity of open source licenses, potentially …

Notes On Dissemination: The Prop/Tort Distinction - 2002, Wendy J. Gordon

Scholarship Chronologically

Most of the proviso-based reasons for restricting property rights come into play after dissemination.[1] Is there any other way in which dissemination matters? Yes; the point of dissemination demarks a crucial shift in the Kind of legal protection that must be given- and thus the Kind of institutional decisions that must be made- if the creator is to be protected.

Need Intellectual Property Be Everywhere? Against Ubiquity And Uniformity, David Vaver

Dalhousie Law Journal

Intellectual property is more prevalent in every corner of our working and leisure lives. International pressure, through both bilateral treaties and multilateral treaties is causing intellectual property law to standardize at high levels throughout the world. Legal standardization may be beneficial in general but is not so for intellectual property in either the developed or the developing world. The law in developed countries is currently incoherent and itself requires major reconsideration. The imposition of such a defective law on the developing world is helpful to neither side. The paper argues that current intensification and harmonization trends are therefore undesirable, and …

Hold-Up And Patent Licensing Of Cumulative Innovations With Private Information, James Bessen

Faculty Scholarship

When innovation is cumulative, early patentees hold claims against later innovators. Then potential hold-up may cause prospective second stage innovators to forego investing in R&D. It is sometimes argued that ex ante licensing (before R&D) avoids hold-up. This paper explores ex ante licensing when information about development cost is private. In this case, contracts may not be written ex ante. Moreover, the socially optimal division of profit occurs with weak patents and ex post licensing. Empirical evidence on licensing conforms to a model with private information. In some innovative industries, little ex ante licensing occurs, suggesting hold-up remains a problem.

Adequacy Of The 1995 Antitrust Guidelines For The Licensing Of Intellectual Property In Complex High Tech Markets, Clovia Hamilton

Winthrop Faculty and Staff Publications

In 1995, the Department of Justice and the Federal Trade Commission adopted new guidelines for those wishing to license intellectual property rights without violating antitrust laws. Designed to provide clarity, these guidelines instead breed confusion because they misunderstand the nature of intellectual property markets and provide insufficient guidance in the most difficult areas. Section I of this article will discuss the basic provisions of the guidelines, especially their treatment of "innovation markets." It argues that government enforcers should focus primarily on activity that creates entry barriers. Understanding the use and misuse of licensing is the key to analyzing barriers in …

Beyond Napster: Using Antitrust Law To Advance And Enhance Online Music Distribution, Matthew Fagin, Frank Pasquale, Kim Weatherall

Faculty Scholarship

What should be the broad principles guiding the copyright and competition policy governing online music? In short, what are the key concerns or values that we want preserved in relation to the distribution of music online? We will outline the background to the present investigations and existing law in Part I and argue in Part II that these concerns can be encapsulated in two broad areas: (1) the preservation of some scope for private and personal use and (2) the encouragement and growth of a diverse sector for the distribution of copyrighted works online. We also argue that, at least …

Reconsidering Estoppel: Patent Administration And The Failure Of Festo, R. Polk Wagner

All Faculty Scholarship

Last Term, in Festo Corporation v. Shoketsu Kinzoku Kogyo Kabashuki Co., the United States Supreme Court missed perhaps the most important opportunity for patent law reform in two decades. At the core of the failure to grasp the implications of "prosecution history estoppel" - a judicially-crafted principle limiting the enforceable scope of patents based on acts occurring during their application process - is the heretofore universal (but ultimately unsupportable) view of the doctrine as an arbitrary ex post limitation on patent scope. This Article demonstrates the serious flaws in this traditionalist approach, and develops a new theory of prosecution history …

The Electronic Jungle: The Application Of Intellectual Property Law To Distance Education, Jon Garon

Vanderbilt Journal of Entertainment & Technology Law

The tension between academic institutions as creators and consumers of intellectual property seems to be most directly felt in the new areas of distance education. Despite the significant opportunities to use new media to expand the reach of the classroom to an ever-growing body of students, concerns regarding copyright, trademark and defamation law continue to limit and dictate what schools attempt to do. These limitations are more directly felt by individual instructors, who must enforce appropriate usage policies for their students, create copyrighted materials and negotiate with their schools over the ownership of the valuable content created.

This Article has …

Congress Trips Over International Law: Wto Finds Unfairness In Music Licensing Act, Mary Lafrance

Scholarly Works

Intellectual property law reform in the United States frequently involves balancing the interest rights of holders against the interests of users. As international agreements play an increasingly important role in the development of domestic intellectual property law, striking this balance has become a more complicated process.

Whereas, a few decades ago, resolving the competing needs of owners and users often could be accomplished purely as a matter of domestic policy – whether the outcome was based on high-minded principle, interest group politics, or simple pragmatism – today the proposed resolution to such a conflict more often than not must be …

The Internationalization Of Intellectual Property: New Challenges From The Very Old And The Very New, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Intellectual property concepts embodied in international treaties and national laws date back to the eighteenth century. Many fundamental concepts (originality in copyright law; confusion in trademark law; novelty or inventiveness in patent law) vary from one country's national legislation to another. Yet, many critics of the intellectual property system recognize that solutions to the problems, ranging from database protection to the Internet, should ideally be the same worldwide. In today's globalized economy, it makes sense to adopt rules to protect that take account of the laws and practices of other nations and of the work of international organizations. Protecting only …

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 …

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 …

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 …

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

Articles

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 …

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 …

Authors, Publishers And Public Goods: Trading Gold For Dross, Wendy J. Gordon

Faculty Scholarship

The article seeks to clarify what is at stake - and what is not - in the litigation challenging the constitutional validity of the Sonny Bono Copyright Term Extension Act (CTEA). First, the article distinguishes between the CTEA's retrospective term extension of copyright term and the retrospective extensions enacted by prior Congresses. The article suggests that the CTEA provisions are constitutionally questionable in ways that earlier retrospective extensions may not have been. To hold the CTEA unconstitutional would not make all other term extensions vulnerable.

Second, the article shows how non-creative physical activities such as digitization and film preservation have …

U.S. Plant Variety Protection: Sound And Fury...?, Mark D. Janis, Jay P. Kesan

Articles by Maurer Faculty

This Article offers a critical reassessment of U.S. approaches to intellectual property protection for plant innovation. Three developments make this reassessment timely. First, the Supreme Court has finally confirmed that utility patent claims to plants and seeds satisfy the 35 U.S.C. Section 101 subject matter eligibility requirement. Plant innovation in the United States is now subject to utility patent protection, as well as concurrent protection under the Plant Variety Protection Act (PVPA). However, little work has been done to explain the role of PVPA protection in a system of concurrent protection, or to develop a coherent policy vision within which …

The Responsibility Of The Rulemaker: Comparative Approaches To Patent Administration Reform, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Patent administrators across the globe currently face the most challenging operating environment they have ever known. Soaring application rates, lean fiscal policies and an increasingly ambitious range of patentable subject matter are among the difficulties faced by the world's leading patent offices. These trends have resulted in persistent concerns over the quality of issued patents. Responding to recent writings questioning the value of maintaining high levels of patent quality, Professor Jay Thomas asserts both that patent quality matters, and that increasing the responsibilities of patent applicants provides a fair and efficient mechanism for improving patent office work product. This Article …

Liberty And Property In The Patent Law, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Patents have seldom troubled civil libertarians. A specialized form of property, patents seemed pertinent to the technologies of traditional industry but little else. Patent instruments offered their readers mere technical documentation; patent cases presented no more than the mapping of a text onto an instantiated artifact; patent policy was principally oriented toward economic optimization of the length and scope of protection. Unbound from technology, contemporary patent law now seems a more robust discipline. Modern patent instruments appropriate a diverse array of techniques that span the entire range of human endeavor. Patent claims, cut loose from physical moorings, have grown more …