Law Commons^™

Opening Up To Open Source, Shawn W. Parker

Richmond Journal of Law & Technology

The latest "revolution" in the software industry has nothing to do with breakthrough technology; the revolution is a rethinking of how software technology is held, developed, and distributed. The revolution is called "open source," although it has also been called "freeware," and "copyleft." Each term generically describes the movement, yet implies wildly different ideas to the developers, distributors, and users inside the open source community. Open source is not a company, but rather, a community; projects are established and programmers communicate and contribute software building blocks to each other via the Internet. When a software program is completed by this …

Update: Riaa V. Diamond Multimedia Systems - Napster And Mp3.Com, Jayne A. Pemberton A. Pemberton

Richmond Journal of Law & Technology

After the Recording Industry Association of America's ("RIAA") attack on the Diamond Rio proved unsuccessful, the music industry turned its attention to the companies enabling reproduction of copyrighted music. Two important cases appeared after the United States Court of Appeals for the Ninth Circuit held that Diamond Rio was not infringing on copyrights. These cases, A&M Records, Inc. et al. v. Napster, Inc. and UMG, Inc., et. al. v. MP3.com, Inc., will shape computer technology's effect on American copyright law. This update will discuss these two cases and give brief overviews of the courts' findings and conclusions. These findings will …

Ucita: The Uniform Computer Information Transactions Act, Michael J. Lockerby

Richmond Journal of Law & Technology

From the heated rhetoric of both proponents and opponents of UCITA, one would think that UCITA represented a radical change from current law. From the standpoint of this practitioner, however, UCITA represents more of an evolutionary than a revolutionary change in the law. In at least three critical areas, the enforceability of "paperless contracts," dispute resolution, and "self-help" remedies, UCITA is arguably consistent with current law or at least the trend of current law. Indeed, the main inconsistency between UCITA and current law is that current law is at times inconsistent. From the standpoint of most businesses, certainty is preferable …

A Circus Among The Circuits: Would The Truly Famous And Diluted Performer Please Stand Up? The Federal Trademark Dilution Act And Its Challenges, Xuan-Thao Nguyen

Articles

Sometimes, nothing is more painful than the truth. Congress passed the celebrated Federal Trademark Dilution Act of 1995 (“the Act” or the “Dilution Act”) with great hope that it would create a uniform anti-dilution law, end forum shopping, and encourage trademark owners to build brand equity with more ease. Congress was overwhelmingly in favor the Act, and thus passed it with little debate, leaving behind a sparse congressional record. In its haste to pass the Act, Congress failed to address whether the Act extends to product design marks; whether the Act requires proof of actual economic harm, or if likelihood …

The Desirability Of Agreeing To Disagree: The Wto, Trips, International Ipr Exhaustion And A Few Other Things, Vincent Chiappetta

Michigan Journal of International Law

This Article proposes a procedural and substantive approach specifically designed to achieve this result. Concerning process, interim national and regional decisionmaking and the multilateral debate must expressly broaden and clarify the values and interests at stake. Three basic operational principles advance this objective. First, comparisons based on IPR labels (patent, copyright, and the like) confuse rather than illuminate. Instead, focus must be on the actual underlying policy justifications and objectives. Second, the full range of implicated justifications (economic and otherwise), including those outside the decision-makers' own norms, must be expressly identified and considered. Finally, any position taken or decision reached …

Enforcement Against Counterfeiting In The People's Republic Of China, Daniel C.K. Chow

Northwestern Journal of International Law & Business

Although the discussion in this Article is limited to counterfeiting in China, many of the issues discussed are endemic to the Chinese legal system as a whole, and apply also to other intellectual property rights, such as copyright piracy and patent infringements. Moreover, many of the themes raised in this Article also illuminate the current state of the nascent Chinese legal system as a whole and how its capacity is tested as it continues the struggle to keep pace with China's many economic reforms and accompanying social changes. Part I of this Article begins with a review of the enforcement …

Cultivating The Genetic Commons: Imperfect Patent Protection And The Network Model Of Innovation, Jonathan M. Barnett

San Diego Law Review

This Article enters this debate and argues the following position. Assuming that antitrust authorities persist in certain strategies to impede patent consolidation, the recent introduction of patent rights for certain biotechnological innovations is likely to encourage private investment in the genetic commons and reduce (or, at least, not enhance) the accessibility costs that could stunt technological advance. To reach this conclusion, this Article shows that the two leading theories of patent protection, the "incentive" theory7 and the "prospect" theory,8 do not explain private industry's willingness to sink significant investment capital into highly uncertain biopharmaceutical projects. These theories offer insufficient explanations …

Combating Copyright Infringement In Russia: A Comprehensive Approach For Western Plaintiffs, David E. Miller

Vanderbilt Journal of Transnational Law

This Article addresses several measures that U.S. and European firms can undertake to combat copyright infringing activities in Russia. First, the Article attempts to dispel the notion that Russian law and the Russian government are inadequate to deal with copyright and piracy problems. In fact, recent surveys suggest that foreign plaintffs have achieved some success in arbitrazh courts. Furthermore, Russian authorities have begun to take steps to ensure that these decisions will be enforced.

Second, the Author suggests that the United States and European nations can apply pressure on the Russian Federation to ensure compliance with copyright laws in the …

Conflicts Between U.S. Law And International Treaties Concerning Geographical Indications, Christine Farley

Scholarly Articles in Law Reviews & Journals

It should not be surprising that the United States is not a major proponent of the protection of geographical indications. Countries that stand to benefit the most from this protection are those that have a long history of traditional industries, such as many European countries. These historical differences may help explain the stance that the United States has taken with regard to the protection of geographical indications, as compared to its stance towards other intellectual property rights negotiated in TRIPs Agreement. But the inability of the U.S. to benefit to the same extent as European countries, because of its apparent …

The Digital Millennium Copyright Act And Library Liability, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

On Courts Herding Cats: Contending With The "Written Description" Requirement (And Other Unruly Patent Disclosure Doctrines), Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

Copyright And The Perfect Curve, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

This essay argues that the assumption that “progress” is qualitatively independent of the underlying entitlement structure is wrong. In particular, I shall argue that a shift to a copyright rule structure based on highly granular, contractually enforced “price discrimination” would work a fundamental shift, as well, in the nature of the progress produced. The critique of the contractual price discrimination model, moreover, exposes deep defects in the use of neoclassical “law and economics” methodology to solve problems relating to the incentive structure of copyright law. What is needed, instead, is an economic model of copyright that acknowledges the central role …

Examined Lives: Informational Privacy And The Subject As Object, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In the United States, proposals for informational privacy have proved enormously controversial. On a political level, such proposals threaten powerful data processing interests. On a theoretical level, data processors and other data privacy opponents argue that imposing restrictions on the collection, use, and exchange of personal data would ignore established understandings of property, limit individual freedom of choice, violate principles of rational information use, and infringe data processors' freedom of speech. In this article, Professor Julie Cohen explores these theoretical challenges to informational privacy protection. She concludes that categorical arguments from property, choice, truth, and speech lack weight, and mask …

Copyright As A Model For Free Speech Law: What Copyright Has In Common With Anti-Pornography Laws, Campaign Finance Reform, And Telecommunications Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright raises real and troubling free speech issues, and standard responses to those concerns are inadequate. This Article aims to put copyright in the context of other free speech doctrine. Acknowledging the link between copyright and free speech can help determine the proper contours of a copyright regime that both allows and limits property rights in expression, skewing the content of speech toward change.

Tomorrow Never Dies: The Protection Of Fictional Characters Under The Federal Trademark Dilution Act, Kristen Knudsen

Vanderbilt Journal of Entertainment & Technology Law

A number of different protections are available for fictional characters under intellectual property law. These have traditionally included copyright, trademark, and unfair competition, or some combination thereof. Another avenue of protection can be found in state dilution statutes, which prohibit unauthorized uses of characters that could harm their reputations, such as by "blurring" their ability to indicate one source, or by "tarnishing" their commercial value. This harm may occur even where there is no likelihood of public confusion, and even where the use is on a noncompeting good. Many commentators have criticized state dilution theories, however, as contravening the purposes …

Online Service Provider Copyright Liability: Is The Digital Millennium Copyright Act The Answer?, Justin Williamson

Kentucky Law Journal

No abstract provided.

Cruel, Mean, Or Lavish? Economic Analysis, Price Discrimination And Digital Intellectual Property, James Boyle

Faculty Scholarship

No abstract provided.

The Development Of Arbitration In The Resolution Of Internet Domain Name Disputes, Christopher S. Lee

Richmond Journal of Law & Technology

Web surfers who use the AltaVista Internet search engine may not realize that in 1998, Compaq Computer Corporation paid $3.3 million for the rights to the domain name AltaVista.com. A year later, eCompanies paid $7.5 million for the domain name business.com. And in February of 2000, Bank of America paid $3 million for the domain name loans.com. These transactions demonstrate that the ownership, transfer, and control of Internet domain names is a multi-million dollar industry.

The Uniform Computer Information Transactions Act (Ucita): Still Not Ready For Prime Time, James S. Heller

Richmond Journal of Law & Technology

In July, 1999, the General Counsels, Vice Presidents, and other senior officers of major information industry technology companies (including Adobe Systems, Intuit, Silver Platter, Lotus, and Microsoft) wrote to the National Conference of Commissioners on Uniform State Laws (NCCUSL) urging adoption of the Uniform Computer Information Transactions Act (UCITA) at the then imminent NCCUSL meeting in Denver. The executives supported the adoption of UCITA because it is true to three commercial principles: commerce should be free to flourish in the electronic age, rules should support use of new (in this case electronic) technologies, and marketplace forces should determine the form …

State Street: Leading The Way To Consistency For Patentability Of Computer Software, Christopher S. Cantzler

University of Colorado Law Review

No abstract provided.

Resolving Tensions Between Copyright And The Internet, Walter Effross

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Landscape Of Constitutional Property, Thomas W. Merrill

Faculty Scholarship

The Constitution contains two clauses that protect persons against governmental interference with their property. The Due Process Clause provides that "No person shall ... be deprived of life, liberty, or property, without due process of law." The Takings Clause adds, "nor shall private property be taken for public use, without just compensation." Both provisions appear to impose a threshold condition that a claimant have some "property" at stake before the protections associated with the Clause apply. Thus, under the Due Process Clause, it would seem that a claimant must have an interest in "property" (or in "life" or "liberty") before …

International Copyright: From A "Bundle" Of National Copyright Laws To A Supranational Code?, Jane C. Ginsburg

Faculty Scholarship

In recent years, the number and content of substantive norms that international copyright treaties impose on member states have increased considerably. It is therefore appropriate to consider the extent to which those instruments have in effect created an international (or at least multinational) copyright code, as well as to inquire what role national copyright laws do and should have in an era not only of international copyright norms, but of international dissemination of copyrighted works. This Article first considers the displacement of national norms through the evolution of a de facto international copyright code, elaborated in multilateral instruments such as …

Copyright Use And Excuse On The Internet, Jane C. Ginsburg

Faculty Scholarship

1998 ended with voluminous copyright legislation, pompously titled the "Digital Millennium Copyright Act" [hereafter "DMCA"], and intended to equip the copyright law to meet the challenges of online digital exploitation of works of authorship. 1999 and 2000 have brought some of the ensuing confrontations between copyright owners and Internet entrepreneurs to the courts. The evolving caselaw affords an initial opportunity to assess whether the copyright law as abundantly amended can indeed respond to digital networks, or whether the rapid development of the Internet inevitably outstrips Congress' and the courts' attempts to keep pace.

In titling this Article "Copyright Use and …

Panel Ii: The Economic And Regulatory Issues Of Convergence, William Baer, Lawrence Grossman, Jeffrey Lanning, Robert Joffe

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Introduction To Keynote Address, Joel R. Reidenberg

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Panel I: The First Amendment Implications Of Convergence, Andrew Jay Schwartzman, Nicholas Jollymore, Janine Jaquet, Jonathan Zittrain

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Laudatory Terms In Trademark Law: Square Pegs In Round Holes, Gary J. Sosinsky

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Keynote Address: Commons And Code, Lawrence Lessig

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Jurisdiction, Choice Of Law, Copyright, And The Internet: Protection Against Framing In An International Setting, Kai Burmeister

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.