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Full-Text Articles in Law

Imaginary Bottles, Jessica Litman Aug 2019

Imaginary Bottles, Jessica Litman

Articles

This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade ...


What We Don't See When We See Copyright As Property, Jessica Litman Nov 2018

What We Don't See When We See Copyright As Property, Jessica Litman

Articles

For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which created statutory ...


Intellectual Property In Experience, Madhavi Sunder Nov 2018

Intellectual Property In Experience, Madhavi Sunder

Georgetown Law Faculty Publications and Other Works

In today’s economy, consumers demand experiences. From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters— they want to be them. They don the robes of Gryffindor, flick their wands, and drink the butterbeer. The owners of fantasy properties understand this, expanding their offerings from light sabers to the Galaxy’s Edge®, the new Disney Star Wars immersive theme park opening in 2019.

Since Star Wars, Congress and the courts have abetted what is now a $262 billion-a-year industry in merchandising, fashioning “merchandising rights” appurtenant to copyrights and trademarks that ...


Intellectual Property In Experience, Madhavi Sunder Jan 2018

Intellectual Property In Experience, Madhavi Sunder

Michigan Law Review

In today’s economy, consumers demand experiences. From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters— they want to be them. They don the robes of Gryffindor, flick their wands, and drink the butterbeer. The owners of fantasy properties understand this, expanding their offerings from light sabers to the Galaxy’s Edge®, the new Disney Star Wars immersive theme park opening in 2019.Since Star Wars, Congress and the courts have abetted what is now a $262 billion-a-year industry in merchandising, fashioning “merchandising rights” appurtenant to copyrights and trademarks that ...


The Market For Software Innovation Through The Lens Of Patent Licenses And Sales, Colleen V. Chien Jan 2017

The Market For Software Innovation Through The Lens Of Patent Licenses And Sales, Colleen V. Chien

Faculty Publications

Software innovation is transforming the US economy. Yet our understanding of how patents and patent transactions support this innovation is limited, in part because of a lack of public information about patent licenses and sales. Claims about the patent marketplace, for example, extolling the virtues of intermediaries like non-practicing entities, or questioning the social utility of ex post patent licenses, tend not to be grounded in empirical evidence. This article brings much-needed data to the policy debate by analyzing transactional data from several proprietary databases of patent licenses and transfers, and reporting several novel findings. First I find that, despite ...


A Cure For Twitch: Compulsory License Promoting Video Game Live-Streaming, Yang Qiu Jan 2017

A Cure For Twitch: Compulsory License Promoting Video Game Live-Streaming, Yang Qiu

Marquette Intellectual Property Law Review

New technology always bring challenges to Chinese legislation. In recent years, based on technological development of network transmission, video game streaming platforms like “Twitch.tv” have made “big” money. The problem, however, is that the streaming content on those platforms involve copyrightable video games, which infringe game publishers’ copyright, if the streaming platform lacks authorization. And only a few of the streaming platforms and streamers have licenses from game publishers. Nowadays, most game publishers allow streaming to exist because they view the streaming as free advertisement for their games. By making these allowances, the game publishers stay in their fans ...


Fetishizing Copies, Jessica Litman Jan 2017

Fetishizing Copies, Jessica Litman

Book Chapters

Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the ...


A Jukebox For Patents: Can Patent Licensing Of Incremental Inventions Be Controlled By Compulsory Licensing?, Ralph D. Clifford Jan 2016

A Jukebox For Patents: Can Patent Licensing Of Incremental Inventions Be Controlled By Compulsory Licensing?, Ralph D. Clifford

Faculty Publications

The patent system today no longer follows the classic understanding of how it is designed to work. In theory, to avoid infringement, a product developer searches the database of issued patents looking for those that might read onto the product being developed. If such patents are found, the developer can approach the patent holder for a license, can attempt to design around the claims, or can abandon the project. With many hundreds of thousands of patents being issued annually—a rate of issuance almost an order of magnitude larger than a hundred years ago—it is now a practical impossibility ...


Open Source Business Models And Synthetic Biology, Tej Singh May 2015

Open Source Business Models And Synthetic Biology, Tej Singh

Chicago-Kent Journal of Intellectual Property

The software industry has successfully utilized open source business models namely with software such as Android and Linux. Open source business models allow individuals to collaborate and share information without fear that the shared information will be commercially misused. Given the similarities between software source code and genetic sequences, innovators in the field of synthetic biology feel that open source business models can help further innovation for synthetic biology in a similar manner. However, when determining whether to join an open source project, practitioners must first identify if such a project will be beneficial to their goals. This Comment discuss ...


Constructive Ambiguity: Ip Licenses As A Case Study, Michal Shur-Ofry, Ofer Tur-Sinai Feb 2015

Constructive Ambiguity: Ip Licenses As A Case Study, Michal Shur-Ofry, Ofer Tur-Sinai

University of Michigan Journal of Law Reform

Ambiguity in contracts is often perceived as undesirable. A certain level of ambiguity, however, can have significant virtues: reducing transaction costs associated with foreseeing and negotiating remote contingencies; facilitating the closing of efficient transactions that would not otherwise close; increasing the adaptability and “anti-fragility” of contracts in the face of unforeseen developments; and preserving trust between the parties. Some contracts are more likely to benefit from a certain degree of ambiguity. Relying on multi-disciplinary literature, this Article systematically analyzes ambiguity’s merits and identifies three principal features of transactions that are positively correlated to the virtues of ambiguity: (1) long ...


Creative Copyright: Tailoring Intellectual Property Policies And Business Strategies For Creative Content Industries In The Digital Age, Bhamati Viswanathan Jan 2015

Creative Copyright: Tailoring Intellectual Property Policies And Business Strategies For Creative Content Industries In The Digital Age, Bhamati Viswanathan

SJD Dissertations

My dissertation explores intellectual property rights in three fields: fashion, music and education. I examine the varying degrees of IP rights in those fields, and ask whether the differing levels of rights are appropriate to keep these industries creative, innovative and robust. I further examine the salient characteristics of those rights and ask whether such an understanding might help to determine optimal levels of IP protection in other creative industries.


The Rule Of Reason And The Scope Of The Patent, Herbert J. Hovenkamp Jan 2015

The Rule Of Reason And The Scope Of The Patent, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

For a century and a half the Supreme Court has described perceived patent abuses as conduct that reaches "beyond the scope of the patent." That phrase, which evokes an image of boundary lines in real property, has been applied to both government and private activity and has many different meanings. It has been used offensively to conclude that certain patent uses are unlawful because they extend beyond the scope of the patent. It is also used defensively to characterize activities as lawful if they do not extend beyond the patent's scope. In the first half of the twentieth century ...


Frand V. Compulsory Licensing: The Lesser Of The Two Evils, Srividhya Ragavan Dec 2014

Frand V. Compulsory Licensing: The Lesser Of The Two Evils, Srividhya Ragavan

Srividhya Ragavan

No abstract provided.


Modifying Rand Commitments To Better Price Patents In The Standards Setting Context, Kyle Rozema Jan 2014

Modifying Rand Commitments To Better Price Patents In The Standards Setting Context, Kyle Rozema

The Journal of Business, Entrepreneurship & the Law

This Article addresses a single problem: how can we allow engineers and scientists from different institutions to collaborate to set the best technical standards possible, not considering intellectual property (“IP”) rights, and then establish the royalty rates for each patent owner after the standard is set? The current system attempting to solve this problem requires patent owner participants to sign a Reasonable and Non-Discriminatory (“RAND”) commitment. These RAND commitments require the participants to agree an ante, i.e., before the standard is actually set, to license whatever patent rights they may ultimately have in the standard on terms that are ...


District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji Jan 2014

District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji

Michigan Telecommunications & Technology Law Review

Technological standards allow manufacturers and consumers to rely upon these agreed-upon basic systems to facilitate sales and further invention. However, where these standards involved patented technology, the process of standard-setting raises many concerns at the intersection of antitrust and patent law. As patent holders advocate for their patents to become part of technological standards, how should courts police this activity to prevent patent holdup and other anti-competitive practices? This Note explores the differing approaches to remedies employed by the United States International Trade Commission and the United States District Courts where standard-essential patents are infringed. This Note further proposes that ...


Frand's Forever: Standards, Patent Transfers, And Licensing Commitments, Jay P. Kesan, Carol M. Hayes Jan 2014

Frand's Forever: Standards, Patent Transfers, And Licensing Commitments, Jay P. Kesan, Carol M. Hayes

Indiana Law Journal

No abstract provided.


Last Sale? Libraries’ Rights In The Digital Age, Jennifer Jenkins Jan 2014

Last Sale? Libraries’ Rights In The Digital Age, Jennifer Jenkins

Faculty Scholarship

No abstract provided.


Actavis, The Reverse Payment Fallacy, And The Continuing Need For Regulatory Solutions, Daniel A. Crane Jan 2014

Actavis, The Reverse Payment Fallacy, And The Continuing Need For Regulatory Solutions, Daniel A. Crane

Articles

The Actavis decision punted more than it decided. Although narrowing the range of possible outcomes by rejecting the legal rules at the extremes and opting for a rule of reason middle ground, the opinion failed to grapple with the most challenging issues of regulatory policy raised by pharmaceutical patent settlements. In particular, it failed to clearly delineate the social costs of permitting and disallowing patent settlements, avoided grappling with the crucial issues of patent validity and infringement, and erroneously focused on “reverse payments” as a distinctive antitrust problem when equally or more anticompetitive settlements can be crafted without reverse payments ...


Private Copyright Reform, Kristelia A. García Dec 2013

Private Copyright Reform, Kristelia A. García

Michigan Telecommunications & Technology Law Review

The government is not the only player in copyright reform, and perhaps not even the most important. Left to free market negotiation, risk averse licensors and licensees are contracting around the statutory license for certain types of copyright-protected content, and achieving greater efficiency via private ordering. This emerging phenomenon, herein termed “private copyright reform,” presents both adverse selection and distributive justice concerns: first, circumvention of the statutory license goes against legislative intent by allowing for the reduction, and even elimination, of statutorily mandated royalties owed to non-parties. In addition, when presented without full term disclosure, privately determined royalty rates can ...


Public Performance Rights In The Digital Age: Fixing The Licensing Problem, G. S. Hans Dec 2012

Public Performance Rights In The Digital Age: Fixing The Licensing Problem, G. S. Hans

Michigan Law Review First Impressions

Recent technological advances have allowed consumers to reinvent the mixtape. Instead of being confined to two sides of an audiocassette, people can now create playlists that stretch for hours and days on their computers, tablets, mobile devices, and MP3 players. This, in turn, has affected how people consume and listen to music, both in isolation and in groups. As individuals and business owners in the United States use devices to store, organize, and listen to music, they inevitably run up against the boundaries of U.S. copyright law. In general, these laws affect businesses more often than private individuals, who ...


Fighting The First Sale Doctrine: Strategies For A Struggling Film Industry, Sage Vanden Heuvel Jan 2012

Fighting The First Sale Doctrine: Strategies For A Struggling Film Industry, Sage Vanden Heuvel

Michigan Telecommunications & Technology Law Review

The first sale doctrine, codified at 17 U.S.C. § 109, grants the owners of a copy of a copyrighted work the right to sell, rent, or lease that copy without permission from the copyright owner. This doctrine, first endorsed by the Supreme Court in Bobbs-Merrill Co. v. Straus, was established at a time when the owner of a good necessarily had to forego possession in order to sell or lease the item to another.[...] The changes in technology and industry over the past two decades threaten to upend this balance. In today's digital world, an owner of a ...


Hatch-Waxmanizing Copyright, Michal Shur-Ofry Jan 2011

Hatch-Waxmanizing Copyright, Michal Shur-Ofry

Michigan Telecommunications & Technology Law Review

This Essay presents a novel proposal for counter balancing "copyright overspills." In the background of the discussion is the common reality of users succumbing to rights holders' attempts to license uses which are most likely fair uses or completely free of copyright protection. These practices have attracted considerable attention in recent literature. Most scholarly proposals in this context emphasize the need to clarify the contours of the fair use doctrine and to remove doctrinal ambiguities. Yet these initiatives are probably insufficient to overcome users' risk aversion in copyright markets due to an inherent structural imbalance within copyright law. While the ...


Pioneers Versus Improvers: Enabling Optimal Patent Claim Scope, Timothy Chen Saulsbury Jan 2010

Pioneers Versus Improvers: Enabling Optimal Patent Claim Scope, Timothy Chen Saulsbury

Michigan Telecommunications & Technology Law Review

Arising most commonly as a defense to an infringement claim, enablement requires a patent to describe the claimed invention in sufficient detail to permit a person having ordinary skill in the relevant field to replicate and use the invention without needing to engage in "undue experimentation." If a patent claim is not "enabled"--i.e., if a person having ordinary skill in the art (PHOSITA) who studied the patent cannot make or use the invention without undue experimentation--the claim is invalid and can no longer be asserted. This penalty deters patent applicants from claiming more than they invented and allows ...


How Many Patents Does It Take To Make A Drug - Follow-On Pharmaceutical Patents And University Licensing, Lisa Larrimore Ouellette Jan 2010

How Many Patents Does It Take To Make A Drug - Follow-On Pharmaceutical Patents And University Licensing, Lisa Larrimore Ouellette

Michigan Telecommunications & Technology Law Review

As described by Professors Dan Burk and Mark Lemley, drugs are[...] special because of the low number of patents per product: "In some industries, such as chemistry and pharmaceuticals, a single patent normally covers a single product. Much conventional wisdom in the patent system is built on the unstated assumption of such a one-to-one correspondence." Although many have repeated this one-patent, one-drug assumption, there has been little empirical analysis of how many patents actually protect each drug. In fact, most small-molecule drugs are protected by multiple patents. The average was nearly 3.5 patents per drug in 2005, with over ...


The Invention Of Common Law Play Right, Jessica D. Litman Jan 2010

The Invention Of Common Law Play Right, Jessica D. Litman

Articles

This Article explores playwrights' common law "play right." Since this conference celebrates the 300th birthday of the Statute of Anne, I begin in England in the 17th Century. I find no trace of a common law playwright's performance right in either the law or the customary practices surrounding 17th and 18th century English theatre. I argue that the nature and degree of royal supervision of theatre companies and performance during the period presented no occasion (and, indeed, left no opportunity) for such a right to arise. I discuss the impetus for Parliament's enactment of a performance right statute ...


Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane Jan 2009

Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane

Articles

Judges will tell you that they are comparatively poor rate regulators. The specialized, technical competence and supervisory capacity that public utilities commissions enjoy are usually absent from judicial chambers. Nonetheless, when granting antitrust remedies-particularly remedies for monopolistic abuse of intellectual property-courts sometimes purport to act as rate regulators for the licensing or sale of the defendant's assets. At the outset, we should distinguish between two forms ofjudicial rate setting. In one form, a court (or the FTC in its adjudicative capacity) grants a compulsory license and sets a specific rate as part of a final judgment or an order ...


Intellectual Liability, Daniel A. Crane Jan 2009

Intellectual Liability, Daniel A. Crane

Articles

Intellectual property is increasingly a misnomer since the right to exclude is the defining characteristic of property and incentives to engage in inventive and creative activity are increasingly being granted in the form of liability rights (which allow the holder of the right to collect a royalty from users) rather than property rights (which allow the holder of the right to exclude others from using the invention or creation). Much of this recent reorientation in the direction of liability rules arises from a concern over holdout or monopoly power in intellectual property. The debate over whether liability rules or property ...


Royalty Rate-Setting For Webcasters: A Royal(Ty) Mess, Amy Duvall Jan 2008

Royalty Rate-Setting For Webcasters: A Royal(Ty) Mess, Amy Duvall

Michigan Telecommunications & Technology Law Review

The Internet is a haven for free expression. Not only are content-based restrictions disfavored, but "[the internet] provides relatively unlimited, low-cost capacity for communication of all kinds." Almost half of all Americans have listened to music online, whether rebroadcasts of terrestrial radio or to find niche music that terrestrial radio simply does not play, and 13 percent tune in regularly. Webcasters provide a unique outlet for new artists; however, if royalty rates are set too high for all but the largest webcasters to stay in business, the variety of music available will be severely restricted. Musical diversity stimulates the generation ...


Tactics And Terms In The Negotiation Of Electronic Resource Licenses, Kincaid C. Brown Jan 2008

Tactics And Terms In The Negotiation Of Electronic Resource Licenses, Kincaid C. Brown

Law Librarian Scholarship

This chapter introduces the reader to the realm of electronic resource license agreements. It provides the reader with an overview of basic contract law as it relates to electronic resource licensing. The chapter then discusses the electronic resource license negotiation process as well as license agreement term clauses. The aim of this chapter is to provide librarians with an understanding of basic licensing concepts and language in order to aid librarians in the review and negotiation of their own license agreements. The author hopes to impart lessons and tips he has learned in reviewing and negotiating license agreements with a ...


Accidental Rights, James Gibson Jan 2007

Accidental Rights, James Gibson

Law Faculty Publications

Written for the Yale Law Journal's online Pocket Part, this is a much shorter and (I hope) more accessible iteration of my earlier paper, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007). It summarizes that paper's central point - i.e., that intellectual property entitlements are growing not just because of expansive court decisions and legislative enactments, but also because of seemingly sensible, risk-averse licensing decisions that inadvertently feed back into legal doctrine - and then explores how this phenomenon might apply to (and be manipulated by) enterprises such as Google Book Search.