Law Commons^™

Trademarking Recreational Marijuana And Potential Threats To The United States' Treaty Obligations, Charles Wells

Journal of Intellectual Property Law

The conflict between state and federal laws regarding the cultivation and sale of recreational marijuana results in inconsistent application of trademark protections between state and federal governments that could cause conflict with the United States’ treaty obligations under the TRIPS agreement. Whereas the federal government categorically denies trademark protections for marijuana-based products state governments protect trademarks belonging to recreational marijuana businesses through state and common law trademark protections. The United States is also obligated to ensure that foreign nationals and United States receive the same treatment regarding trademark protections under The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). …

From Blurred Lines To Blurred Law: An Assessment Of The Possible Implications Of "Williams V. Gaye" In Copyright Law, Hannah Patton

Journal of Intellectual Property Law

In December 2018, panic spread throughout the music industry in light of headlines reporting that the Ninth Circuit Court of Appeals upheld the lower court’s verdict that the 2013 hit song “Blurred Lines” by Robin Thicke and Pharrell Williams infringed Marvin Gaye’s “Got to Give it Up,” released in 1977. In addition to the tremendous $5.3 million award ordered for the Gaye estate, the Blurred Lines Case resulted in fear that the holding could create precedent for allowing the “style” or “groove” of a song to be considered subject to copyright. Since then, industry insiders, lawyers, and commentators have feared …

Repeal The Defend Trade Secret Act: Why Congress Can't Rely On Trade Secret Law To Protect America's Trade Secrets, Steven Miller

Journal of Intellectual Property Law

Trade secret theft from foreign and domestic competitors continue to siphon technological advances from United States businesses. This siphoning erodes America's competitive advantage in the global marketplace; however, this note argues that recent Congressional legislation that attempts to strengthen trade secret protection actually harms America's competitive advantage. This note argues for Congress to repeal its trade secret protection, because trade secret law,a s currently applied, fails to deter trade secret theft and fails to protect American business interests domestically or abroad, and yet actually harms domestic innovation.

Statutory And Constitutional Problems With Judicially-Imposed Patent-Claim Limitations, Sloane Kyrazis

Journal of Intellectual Property Law

The safety valve standard articulated in In re Katz Interactive Call Processing Litigation is at odds with the provisions of the U.S. Patent Act and violates constitutional due process. Without requisite constitutional protections and those protections guaranteed by the U.S. Patent Act, patentees in complex modern patent litigation are at risk of having their patent rights deprived from contrary to the congressional intent articulated in the statute and without requisite process. The courts must balance their need for efficient administration of the law in patent cases by implementing equitable measures to ensure that patentees’ rights are not trampled on. Additionally, …

John Hemings' Monticello And Poplar Forest, J. Wesley Giglio

Journal of Intellectual Property Law

A discussion of John Hemings' creative architectural contributions to Monticello and Poplar Forest, Thomas Jefferson's Virginia Estates. Author argues that Hemings, an enslaved person and a master carpenter, made vital and creative contributions to the building of the two estates which merit legal recognition. Author discusses how legal ideas about moral rights and statutory protections in the Architectural Works Copyright Protection Act could be adapted to cure a historica and representative injustice.

The Best Laid Plans: How Dmca Sec. 1201 Went Awry, Smothering Competition And Creating Giants,And Where We Go Now, Tyler Fabbri

Journal of Intellectual Property Law

In 1998, Congress passed the Digital Millennium Copyright Act with the express intention of protecting the intellectual property of copyright holders from the growing threats of digital piracy and information sharing brought about by an increasingly digital society.

Among the law’s many provisions is §1201, which works to prohibit circumnavigation of digital protections copyright holders may put on protected works—in essence, innovators or competitors would be unable to develop technology or programs to bypass security measures put into place by primary creators. While this provision seems facially reasonable, it has effectively served as a means to quash adversarial interoperability.

Adversarial …

Secrets, Sovereigns, And States: Analyzing State Government's Liability For Trade Secret Misappropriation, Grant Cole

Journal of Intellectual Property Law

Trade secrets are many business's most valuable assets. From Google’s algorithm to Coca-Cola’s secret recipe, trade secrets are becoming increasingly important to businesses and our economy. What if state governments could simply misappropriate these trade secrets without liability? Sadly, this situation is not uncommon. Many state governments have misappropriated trade secrets with virtual impunity. This is because the doctrine of sovereign immunity protects state governments from liability. This leaves businesses that deal with the government without a way to recover for the misappropriation of their trade secrets. This result is especially damaging because once a trade secret is no longer …

Cross-Jurisdictional Analysis Of Damage Awards In Copyright Infringement Cases, Ioana Vasiu, Lucian Vasiu

Journal of Intellectual Property Law

Copyright infringement is a widespread phenomenon that produces massive financial losses to stakeholders. Based on an extensive examination of damage awards in copyright infringement cases from the United States, Canada, Singapore, and Italy, this article proposes a comprehensive cross-jurisdictional analysis. The analysis regards types, factors, methodologies, and arguments. This article's findings can be used to adjust the provisions regarding damage awards, to improve the litigation of such cases, to elaborate educational materials, for professional programs or law school clinics, and to develop better prevention policies. The proposed improvements could lead to a more unified approach to damage awards, increase the …

The Impact Of Implementing A 25-Year Reversion/Termination Right In Canada, Paul J. Heald

Journal of Intellectual Property Law

No abstract provided.

Evidence-Based Patent Damages, Taorui Guan

Journal of Intellectual Property Law

No abstract provided.

Pgs, I Love You: Rebuilding Copyright For Architecturally-Situated Pictorial, Graphic, And Sculptural Works, Llewellyn Kittredge Shamamian

Washington and Lee Law Review Online

Over twenty years ago, in Leicester v. Warner Bros., the Ninth Circuit limited copyright protection for a certain sculptural complex located within a downtown Los Angeles high‑rise. The court determined that the sculpture, otherwise protected from pictorial reproduction, could be visually replicated without infringing on the artist’s copyright because it was part of its architectural context.

This Note explores two recent copyright cases where companies capitalized on painted street art, using the works as backdrops for social media advertising. The resulting litigation calls into question Leicester’s holding and the extent to which it may allow visual reproduction of …

Equalizing The Playing Field: The Time Has Come For Secondary Meaning In The Making In Small Restaurant Trade Dress Infringement Cases, John Pesek

Journal of Food Law & Policy

Imagine it is opening day for your first restaurant. It has taken months, if not years, to get to this point and you have spent a lot of money in developing the menu, artist style, and feel for the restaurant. A few months after the opening of your restaurant, a competing restaurant, right down the block from your restaurant, opens its doors; its menu and overall look are virtually indistinguishable from your restaurant. You are left wondering what remedies, if any, you have as a small restaurant owner. This was the case for Chef Rebecca Charles and her Pearl Oyster …

Making Mistakes With Machines, Dhanoa. Harsimar

Santa Clara High Technology Law Journal

MAKING MISTAKES WITH MACHINES

Is There A New Extraterritoriality In Intellectual Property?, Timothy R. Holbrook

Faculty Articles

This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been …

Conspiracy Speech: Reimagining The First Amendment In The Age Of Qanon, Justin Hyland

UC Law SF Communications and Entertainment Journal

No abstract provided.

Tobacco And The Small Screen: Why The Tvomb Should Restructure The Parental Guidelines, Courtney Leavitt

UC Law SF Communications and Entertainment Journal

This article summarizes the creation and workings of the TV Parental Guidelines and the Oversight Monitoring Board, potential First Amendment issues of a required rating system, and possible solutions to the problems of the current rating system. The TV Parental Guidelines and the Oversight Monitoring Board were created to fulfill requirements of the Telecommunications Act of 1996. The TV Parental Guidelines are meant to empower parents to control the content viewed by their children with useful ratings. However, the accuracy of ratings and understanding of the system are limited. Further, the complaint process is complex, with little authority to enforce …

For An Anti-Discrimination Act For Cyberspace: Two-Sided Pricing, Walled Gardens, And The Depletion Of The Marketplace Of Ideas, Julien Mailland

UC Law SF Communications and Entertainment Journal

In the wake of renewed policy interest for the regulation of Internet gatekeepers, I argue that the U.S. Congress should pass a sweeping net neutrality regulation, an Anti-Discrimination Act for Cyberspace. Breaking with the tradition of siloed research which has seen similar proposals grounded in economics, computer science, history, political philosophy, and administrative and constitutional law, as separate matters, I offer a multi-disciplinary approach which combines these fields to draw new insights for Internet law and policy. I argue, with reference to leading Supreme Court cases, including Pruneyard Shopping Center v. Robins, that such a law would most likely pass …

We Didn’T Stop The Fire: Media Ownership Policy After Fcc V. Prometheus Radio Project, Christopher Terry, Eliezer Joseph Silberberg, Stephen Schmitz

UC Law SF Communications and Entertainment Journal

No abstract provided.

Trademarks In Conversation: Assessing Genericism After Booking.Com, Laura A. Heymann

Faculty Publications

It is a fundamental principle of U.S. trademark law that to serve as a trademark, a word or phrase must “indicate the source” of the goods or services with which it is associated and, conversely, that a term that is understood to be the common name of a good or service is “generic” and cannot be protected as a trademark. Yet it still seems difficult to determine exactly what each concept means, particularly when the actual “source” of any goods or services might be opaque to consumers.

In part, this difficulty comes from the fact that status as a trademark …

Association For Molecular Pathology V. Myriad Genetics: A Critical Reassessment, Jorge L. Contreras

Michigan Technology Law Review

The Supreme Court’s 2013 decision in Association for Molecular Pathology v. Myriad Genetics is an essential piece of the Court’s recent quartet of patent eligibility decisions, which also includes Bilski v. Kappos, Mayo v. Prometheus, and Alice v. CLS Bank. Each of these decisions has significantly shaped the contours of patent eligibility under Section 101 of the Patent Act in ways that have been both applauded and criticized. The Myriad case, however, was significant beyond its impact on Section 101 jurisprudence. It was seen, and litigated, as a case impacting patient rights, access to healthcare, scientific freedom, …

Information Age Technology, Industrial Age Laws, Elizabeth I. Winston

Scholarly Articles

The United States patent system was born during the Industrial Age — at a time where the focus was on promoting innovation in machines, and tangible means of changing the world. With the dawn of the Information Age, innovation is increasingly intangible. The industrial age laws, as currently interpreted, are not well-suited for the changing and evolving technological world. Information age innovators face challenges at the United States Patent and Trademark Office, through the judicial system and at the United States International Trade Commission. It is time for a change in the system to reflect the realities of modern technology. …

Unspoken Criticism: Audiovisual Forms Of Critique As Fair Use, Alec Fisher

Kernochan Center for Law, Media, and the Arts

This Note argues that the traditional legal framework for analyzing a work of alleged criticism as fair use is particularly constraining for YouTube reaction videos and other audiovisual forms of criticism that largely critique or comment on an original work in a non-spoken, visual manner. It discusses the emphasis that the current fair use jurisprudence places on spoken and written critical elements when undertaking a fair use analysis of a work of criticism, then advocates for a new conception of fair use criticism that incorporates film-specific analytical techniques and concepts when analyzing the critical elements of online audiovisual works. Part …

Copyright And The Creative Process, Mark Bartholomew

Journal Articles

Copyright is typically described as a mechanism for encouraging the production of creative works. On this view, copyright protection should be granted to genuinely creative works but denied to non-creative ones. Yet that is not how the law works. Instead, almost anything—from test answer sheets to instruction manuals to replicas of items in the public domain—is deemed creative and therefore eligible for copyright protection. This is the consequence of a century of copyright doctrine assuming that artistic creativity is incapable of measurement, unaffected by personal motivation, and incomprehensible to novices and experts alike. Recent neuroscientific research contradicts these assumptions. It …

Golan V Holder’S Impact On Orchestra Performance Programming: Annotated Bibliography, Craig M. Winston

Musicology and Ethnomusicology: Student Scholarship

This project will examine how changes in copyright law enacted with the Supreme Court’s 2012 decision on Golan v Holder affect the performance programming of American symphony orchestras. The court’s decision brought many previously public-domain, foreign works under copyright protections in accordance with the Uruguay Rounds Agreement Act; among the musical works were frequently performed pieces by composers such as Prokofiev, Rachmaninoff, and Stravinsky. The result is that previously free or low-cost works would now have to be licensed or rented for performance at great expense to the performing group. I will seek to test a hypothesis proposed by legal …

Appropriation Of Artisans' Intellectual Property In Fashion Design Accessories: Piracy Disguised As Giving Back?, Clovia Hamilton

Technology & Society Faculty Publications

Creative industries are industries focused on the creation and exploitation of intellectual propert, including art, fashion design, and related creative services, such as advertisement and sales. During a trip to Burkina Faso in \Nest Africa, Keri Fosse was taught by an African woman how to wrap newborns with fabric in a manner that creates a strong bond and frees the mother's hands for other tasks. Burkina Faso has a craft culture and is known for its woven cotton and the textile art of Bogolan. Bogolan is a technique original to Mali and involves the tradition of dyeing threads with bright …

“Sacrifice And Recoupment” In The Antitrust Analysis Of Patent Settlements: Actavis Through The Lens Of Brooke Group, Aspen Skiing, And Trinko, Bryan Gant

American University Business Law Review

Patent settlements are typically procompetitive, benefiting not only the settling parties but also the courts and the general public. But in rare cases patent settlements might instead harm competition, and thus raise antitrust concerns. How are courts to determine when antitrust scrutiny should — and, more importantly, should not — be applied to patent settlements? The answer ostensibly came in the Supreme Court’s 2013 decision in FTC v. Actavis, Inc. Under Actavis, antitrust scrutiny of patent settlements may “sometimes” be appropriate where there is a “large,” “unexplained” “reverse payment” from the patentee to the patent challenger. Unless, that is, the …

A Tale Of Two Interoperabilities; Or, How Google V. Oracle Could Become Social Media Legislation, Charles Duan

Articles in Law Reviews & Other Academic Journals

The Supreme Court'srecent decision in Google LLC v. Oracle America, Inc. has provided the latest word on an issue that many have described as "interoperability," and it comes at a time when lawmakers around the world are debating a policy called "interoperability" with respect to majorInternetplatforms. At first glance, these two similarly named policy conversations copyright protection of software interfaces and interconnection among competing Internet platforms, respectively have little to do with each other. Yet they are vitally intertwined: the activities and issues featured in Google are so closely linked to the questions of digital competition that interoperability reforms directed …

Hacking Antitrust: Competition Policy And The Computer Fraud And Abuse Act, Charles Duan

Articles in Law Reviews & Other Academic Journals

The Computer Fraud and Abuse Act, a federal computer trespass statute that prohibits accessing a computer "without authorization or exceeding authorized access," has often been criticized for clashing with online norms, over-criminalizing common behavior, and infringing freedom-of-expression interests. These controversies over the CFAA have raised difficult questions about how the statute is to be interpreted, with courts of appeals split on the proper construction and the Supreme Courtset to consider the law in its current October Term 2020.

This article considers the CFAA in a new light, namely its effects on competition. Rather than merely preventing injurious trespass upon computers, …

L’Europe Face Aux Défis De Pluralismes Inattendu, Vivian Grosswald Curran

Book Chapters

This contribution to a Festschrift in honor of Mireille Delmas-Marty explores the challenges for Delmas-Marty’s aim of “ordered pluralism” within the EU, given the departures from fundamental EU values by some of its Member States in recent years. It touches on the divided pasts of the Western and Eastern members of the EU, building on work of C. Joerges and T. Snyder in that area, addressing how the different historical narratives may be understood. It also suggests the utility of Article 17 of the European Convention, as was done by the partially concurring, partially dissenting judges in the Navalny v. …

Submission To Canadian Government Consultation On A Modern Copyright Framework For Ai And The Internet Of Things, Sean Flynn, Lucie Guibault, Christian Handke, Joan-Josep Vallbé, Michael Palmedo, Carys Craig, Michael Geist, Joao Pedro Quintais

Reports & Public Policy Documents

We are grateful for the opportunity to participate in the Canadian Government’s consultation on a modern copyright framework for AI and the Internet of Things. Below, we present some of our research findings relating to the importance of flexibility in copyright law to permit text and data mining (“TDM”). As the consultation paper recognizes, TDM is a critical element of artificial intelligence. Our research supports the adoption of a specific exception for uses of works in TDM to supplement Canada’s existing general fair dealing exception.

Empirical research shows that more publication of citable research takes place in countries with “open” …