Law Commons^™

Extending The Revisionist Project, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Disease Management And Liability In The Human Genome Era, Larry I. Palmer

Faculty Publications

No abstract provided.

Collective Management Of Copyright And Neighboring Rights In Canada: An International Perspective, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

It is a generally held view that copyright in civil law countries is a child of the French Revolution and should be considered an inalienable right of the author, a human right in other words. In fact, it is enshrined in the Universal Declaration of Human Rights of 1948. Granted, in several cases the economic component of the right is transferred to, e.g., a publisher or a producer, but it remains, at source, a right of the author, the creator of the protected work (or object of a related right). By contrast, one often hears that, in common law jurisdictions, …

Digital Tv, Copy Control, And Public Policy, Jonathan Weinberg

Cardozo Arts & Entertainment Law Journal

No abstract provided.

War Stories, Jessica Litman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Miss Scarlett's License Done Gone!: Parody, Satire, And Markets, Michael A. Einhorn

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Innovating Copyright, Lawrence Lessig

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The American Inventors Protection Act Of 1999: An Analysis Of The New Eighteen-Month Publication Provision, Reiko Watase

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Patent Signals, Clarisa Long

Faculty Scholarship

Courts and commentators often treat intellectual property as if the private value of the rights stemmed entirely from the control legal rules conferred over the protected subject matter. While the literature has devoted an enormous amount of time, paper, and ink to the discussion of whether legal rules grant the optimal amount of exclusivity, it has not considered whether it has been examining all the functions of patents This Article provides a new general framework for analyzing the function and effect of intellectual property rules. Rather than focusing on patents as a mechanism for privatizing information, this Article instead frames …

Thoughts On Dastar From A Copyright Perspective: A Welcome Step Toward Respite For The Public Domain, Lynn Mclain

All Faculty Scholarship

Though other questions remain unresolved and other leaks unstemmed, Dastar is a welcome step towards regaining the public domain, and towards establishing that the confines of the public domain, with regard to nondeceptive reproduction of public domain works, and preparation of derivative works based upon them, must be delimited by only the copyright and patent laws.

This article will provide a background discussion of the copyright and patent schemes and their delineation of the public domain. It then will discuss the role of trademark law in that balance, and some of the case law regarding both § 43 of the …

Sovereign Domains: A Declaration Of Independence Of Cctlds From Foreign Control, Kim G. Von Arx, Gregory R. Hagan

Richmond Journal of Law & Technology

In the year 2000, the Government Advisory Committee (“GAC”) of the Internet Corporation for Assigned Names and Numbers (“ICANN”) passed a set of principles that essentially claimed national sovereignty over country code top-level domains (“ccTLD”s) such as .us, .ca, .uk and .au. Shortly thereafter, ICANN redelegated several ccTLDs in accordance with new GAC principles. Despite the outcry accompanying the passage of these principles and ICANN’s self-professed adherence thereto, the entire exercise could easily be criticized as merely symbolic because of the overriding power of ICANN in the operation of the Domain Name System (“DNS”). Indeed, Stuart Lynn, ICANN’s current president, …

Law And Information Platforms, Philip J. Weiser

Publications

No abstract provided.

De-Bugging Open Source Software Licensing, Robert W. Gomulkiewicz

Articles

Home computer users and businesses often rely on software developed by unconventional programmers known as "hackers." Hackers claim that the code they develop is superior in quality to the code developed by commercial software firms because hackers freely share the code they develop. This code sharing enables a multitude of programmers from around the world to rapidly find and fix bugs. The legal mechanism that enables hackers to deploy this worldwide team of de-buggers is a license agreement or, to be more precise,an assortment of license agreements known as "open source" licenses.

Although open source software developers may regularly fix …

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 …

The Uniform Domain Name Dispute Resolution Policy: A Practical Guide, Bradley J. Freedman, Robert J.C. Deane

Canadian Journal of Law and Technology

Disputes involving alleged bad faith registration and use of certain Internet domain names may be arbitrated pursuant to the Uniform Domain Name Dispute Resolution Policy (the Policy) mandated by the Internet Corporation for Assigned Names and Numbers ("ICANN").

The Policy is the first attempt to establish a global set of substantive rules regarding certain kinds of Internet-related trademark disputes, and a single, international system for the arbitration of those disputes. In many respects, the Policy has fulfilled its objective of providing an efficient and cost effective means of resolving certain domain name disputes. In other respects, however, the experience with …

Employee Patents On Computer-Implemented Inventions: The Conundrum Of Separate Ownership Of Patent And Copyright, David Loretto

Cardozo Law Review

No abstract provided.

Dna Patenting And Access To Healthcare: Achieving The Balance Among Competing Interests, Melissa E. Horn

Cleveland State Law Review

Increasing evidence suggests that the biotechnology industry's interest in generating revenue and the public's desire to obtain the best healthcare may be at odds. The patenting of genetic information is at the core of this debate. Most, if not all, of the products of the biotech industry's research are patentable. Historically, patents have been justified on the grounds that they are needed to create an incentive for researchers and companies to invest time and money in projects that have uncertain outcomes. In the biotechnology arena, patents do not simply encourage innovation and allow innovators to recoup their costs. Patents can …

Symposium Introduction: Napster: Innocent Innovation Or Egregious Infringement, Gregory P. Magarian

Scholarship@WashULaw

Napster is gone for now, but the fissures it opened in our understanding of intellectual property will challenge lawyers for a long time. The basic idea behind Napster was a simple outgrowth of the Internet's premise of linking computers to facilitate the wide-spread exchange of information. The Napster Web site, with its peer-to-peer file sharing technology, created a sort of "clearing house" for information, specifically the sound files known as MP3s. Thousands upon thousands of users could sign on to the Napster site at any given time, offer MP3 files for downloading, and in turn download any files that any …

Incomplete Compensation For Takings, Thomas W. Merrill

Faculty Scholarship

If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is "tantamount to" an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is …

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 …

Vangrack's Explanations: Treating The Truth As A Mere Matter Of "Form", Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

We welcome criticism by responsible scholars and readers, and the chance to address it in journals that enforce appropriate standards of accuracy and integrity. We have done just that in exchanges in Judicature and the Indiana Law Journal.

But the inaccuracies in Adam VanGrack's Note, and new problems with his present explanation, lead us to conclude that it is not useful to exchange views with him in the Washington University Law Quarterly. Beyond all is Mr. VanGrack's dismissal of matters serious enough to trigger an extraordinary instruction to explain himself in print, and to prompt him to rescind …

"The Exclusive Right To Their Writings": Copyright And Control In The Digital Age, Jane C. Ginsburg

Faculty Scholarship

In this article, I will explore the concept of control and the meaning of exclusive rights in the constitutional text, the pre-1976 Copyright Act regime, and the 1976 Act. I then consider the new technology cases from piano rolls through videotaperecorders, as well as Congress' responses to new technological means of exploitation. I make two submissions. First, I conclude that when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement, even though the legal and economic analysis that support those determinations often …

Toward A Nonzero-Sum Approach To Resolving Global Intellectual Property Disputes: What Can We Learn From Mediators, Business Strategists, And International Relations Theorists, Peter K. Yu

Articles

All societies, communities, organizations, and interpersonal relationships experience conflict at one time or another in the process of dayto-day interaction. Conflict is not necessarily bad, abnormal, or dysfunctional; it is a fact of life. Conflict and disputes exist when people are engaged in competition to meet goals that are perceived to be, or actually are, incompatible. However, conflict may go beyond competitive behavior and acquire the additional purpose of inflicting physical or psychological damage on an opponent, even to the point of destruction. It is then that the negative and harmful dynamics of conflict exact their full costs.

Who Was That Masked Man? Online Defamation, Freedom Of Expression, And The Right To Speak Anonymously, Jonathon T. Feasby

Canadian Journal of Law and Technology

As the internet continues to reach into the lives of people around the world, it facilitates interaction and the exchange of ideas between far-flung individuals and groups to an extent unprecedented in communications history. However, with this positive effect, the potential of the internet as a forum for defamation and other malfeasance has increased as well. Words online can be heard or read in places conventional forms of speech might never reach. As the United States Supreme Court put it, with the aid of the internet ". . . any person with a phone line can become a town crier …

Book Review: A Guide To Electronic Legal Research By A. Zivanovic (Markham Ont.: Butterworths Canada, 2001), David H. Michels

Canadian Journal of Law and Technology

No abstract provided.

Book Review: The Personal Information Protection And Electronic Documents Act: An Annotated Guide By Stephanie Perrin, Heather H. Black, David H. Flaherty And T. Murray Rankin, Q.C. (Concord, Ont.: Irwin Law, 2001), Teresa Scassa

Canadian Journal of Law and Technology

In April 2000, the Personal Information Protection and Electronic Documents Act was passed by the House of Commons. The legislation dealt with both personal information privacy and the use and validity of electronic documents in areas governed by federal law. On January 1, 2001, the portion of the Act dealing with electronic documents took effect, as did the privacy provisions, to the extent that they related to the collection use or disclosure of personal information inter-provincially, or in connection with a federal work, undertaking or business. The Act applied to personal health information as of January 1, 2002, and will …

Is Internet Gaming Legal In Canada: A Look At Starnet, C. Ian Kyer, Danielle Hough

Canadian Journal of Law and Technology

The development of the Internet has kindled many new business opportunities in the online environment. Despite the recent slump in online business growth and popularity, one line of online business is generating profit and growing at a rapid rate: the business of online gaming.

The legality of such businesses is questionable in Canada and there are few gaming cases to assist Canadian lawyers. The following analysis must be considered in light of the dearth of jurisprudence in this area and should not be considered legal advice. This area of the law is in flux and developments may be unpredictable.

When …

Transitions In Ip And Antitrust, Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

Inventions, Industry Standards, And Intellectual Property, Mark R. Patterson

Faculty Scholarship

When an industry standard incorporates a patented invention, the demand for products that comply with the standard has two components. Some of the demand may be for the inherent technical advantages of the invention; the patentee is generally entitled to revenues attributable to this demand. But some of the demand is for the benefits of standardization, such as interoperability, and the patentee is not entitled to revenues attributable to this demand. From this point, the article draws two conclusions. First, the amounts to which a patentee is entitled, either in litigation or in licensing negotiations, should be calculated by determining …

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 …