Law Commons^™

An Empirical Study Of Copyright’S Substantial Similarity Test, Clark D. Asay

UC Irvine Law Review

The substantial similarity test is copyright law’s dominant means by which courts determine whether a party has infringed another party’s copyright rights. Despite this, we have very little empirical evidence about what the test is and how courts apply it. To date, only a few empirical studies exist, and these are limited in several important ways, including with regards to scope, time periods covered, and volume of opinions. Mostly, courts, commentators, and scholars rely on anecdotal accounts of the test in both their conceptualizations and critiques of it.

To help provide a clearer empirical assessment of the test, this study …

How Sample Clearance Has Affected Hip-Hop Music-Making, Bryan J. Brewster

Capstone Projects and Master's Theses

This paper will explain how sample clearance has impacted hip-hop music-making. It will explain what a sample is and show the historical significance of sampling in hip-hop. I will briefly discuss the basics of copyright and the process of clearing a sample. This paper will also look into legal cases of copyright infringement to show the impact of specific cases and analyze data to determine if the amount of sample clearance has changed because of the decisions of the courts. The main goal of this paper is to highlight the significance of sampling in hip-hop, the inherent challenges of legally …

Copyright And Federalism: Why State Waiver Of Sovereign Immunity Is The Best Remedy For State Copyright Infringement, Leroy J. Ellis V

Northwestern Journal of Technology and Intellectual Property

When a photographer intentionally takes a picture of a subject, or a writer puts a story to paper, the resulting works are protected by copyright. That protection is bolstered after the authors register their works with the Copyright Office. All private parties, from individuals to corporations, can be sued for infringing on the work should they use it without pay or permission.

However, what happens when the infringer is not a private party? What happens when the state or a state entity is the infringer? What happens when a public university decides to use a copyright owner’s work without pay …

Rethinking Equitable Estoppel In Patent Law, Joshua J. Lustig

Northwestern Journal of Technology and Intellectual Property

In almost every context, the Federal Circuit has used estoppel doctrines to provide protection to parties from some sort of injustice. Yet recently, with equitable estoppel, the Federal Circuit has decided to infuse concepts of Article III justiciability to justify limiting the doctrine as only applicable to issued patents. In doing so, the Federal Circuit has ignored the long history behind equitable estoppel in favor of a rule that is improperly rationalized by the Constitution. This note argues that Federal Circuit's recent equitable estoppel jurisprudence is inconsistent with equity's goal of fairness and presents a new theory of equitable estoppel …

Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet

BYU Law Review

Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation.

But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent …

The Impact Of Library Publishing Through The Lens Of The United Nations Sustainable Development Goals, Marie O'Neill

Copyright, Fair Use, Scholarly Communication, etc.

Abstract

As library publishing programmes expand around the world, reports and research pertaining to standards and workflows have proliferated. This paper calls for library publishing programmes to explore the impact of their pogrammes at local, national and international level in relation to their contribution to open access publishing, EDI agendas and the United Nations Sustainable Development Goals. The presentation highlights the UN's SDG Publishers Compact and argues that the SDGs are an ideal lens through which library publishers could examine their impact as library publishers have a strong publishing record in areas such as gender, education and climate as examples.

Intellectual Property & Information Law Fall 2022 Speaker Series, Benjamin N. Cardozo School Of Law

Flyers 2022-2023

Join us for a conversation with Jonathan Herstoff, Partner at the law firm of Haug Partners LLP (formerly Frommer Lawrence & Haug LLP).

The Intersection Of Data Science, Tech And Law, Cardozo Law And Data Science Society, Cardozo Business Law Society, Cardozo Antitrust Society, Cardozo Intellectual Property Law Society (Ipls)

Flyers 2022-2023

No abstract provided.

Centering Black Women In Patent History, Jessica Silbey

Faculty Scholarship

Professor Kara Swanson’s latest article is a remarkable example of legal historical scholarship that excavates stories from the past to illuminate the present. It is chock full of archival evidence and historical analysis that explains gaps and silences in the United States patent registry as evidence of marginalized inventors–particularly Black women–who should be named inventors but are not.

The article is arresting reading for anyone interested in antebellum history, intellectual property, and the intersection of racism and sexism in law. Mostly, I am grateful to Professor Swanson for doing the obviously very hard work of digging through archives, reading microfiche, …

Marshalling Copyright Knowledge To Understand Four Decades Of Berne, Peter K. Yu

IP Theory

In the year 1978, the 1976 Copyright Act had just entered into effect. Marshall Leaffer, whom this article will affectionately refer to by his first name, had just completed his duties as an attorney advisor at the U.S. Copyright Office. On his way to academia, he, like the fictional character Captain William “Buck” Rogers, was to experience cosmic forces beyond all comprehension. In a freak mishap, his car veered off a rarely used mountain road and was frozen by temperatures beyond imagination. He did not return to academia until more than forty years later. What will he discover upon his …

Automatic Takedowns: How Contentid Has Changed Copyright Enforcement, Cardozo Fame Center, Cardozo Entertainment Law Society, Cardozo Intellectual Property Law Society

Flyers 2022-2023

No abstract provided.

Community Forum On The 2022 Ostp Public Access Policy Guidance [Presentation Slides], White House Office Of Science And Technology Policy

Copyright, Fair Use, Scholarly Communication, etc.

Included:

● Public access background and context

● Summary of the 2022 OSTP Memorandum

● Clarification about the scope of the 2022 OSTP Memorandum

● Timeline for agency adoption of the 2022 OSTP Memorandum

● Agency perspectives: National Aeronautics and Space Administration (NASA), National Institutes of Health (NIH), and Institute of Museum and Library Services (IMLS)

● Questions and answers

Against Secondary Meaning, Jeanne C. Fromer

Notre Dame Law Review

Trademark law premises protection and scope of marks on secondary meaning, which is established when a mark develops sufficient association to consumers with a business as a source of goods or services in addition to the mark’s linguistic primary meaning. In recent years, scholars have proposed that secondary meaning plays an even more central role in trademark law than it already does. Yet enshrining secondary meaning in the law undermines the ultimate goals of trademark law: promoting fair competition and protecting consumers. The dangers of enshrining secondary meaning include the problematic doctrine that has built up to assess it or …

Proving Copying, Shyamkrishna Balganesh, Peter S. Menell

William & Mary Law Review

Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …

The Value In Secrecy, Camilla A. Hrdy

Fordham Law Review

Trade secret law is seen as the most inclusive of intellectual property regimes. So long as information can be kept secret, the wisdom goes, it can be protected under trade secret law, even if patent and copyright protections are unavailable. But keeping it a secret does not magically transform information into a trade secret. The information must also derive economic value from being kept secret from others. This elusive statutory requirement—called “independent economic value”—might at first glance seem redundant, especially in the context of litigation. After all, if information had no value, why would the plaintiff have bothered to keep …

Discretionary Denial Of Inter Partes Review And The Patent Trial And Appeal Board, Xinni Cai

Fordham Law Review

The inter partes review (IPR) is an administrative procedure conducted by the Patent Trial and Appeal Board (PTAB), an adjudicative body within the U.S. Patent and Trademark Office (USPTO). IPR provides an opportunity for third parties to challenge a patent’s validity after it has already been granted. A petitioner can file a petition with the PTAB to “institute” IPR. If the review is instituted, the PTAB considers the evidence presented and issues a final written decision, either holding the patent valid or striking it down as invalid. Although IPR was introduced as an alternative to litigation, it is often used …

Infringement Or Identification?: Nominative Fair Use And The Resale Of Luxury Goods, Jordan Phelan

Fordham Law Review

The market for luxury resale is booming and is predicted to continue its massive growth. Luxury resellers typically market and describe goods using the luxury brand’s trademarks, including the brand name and logos. Luxury brands utilize their market power to “bully” smaller resellers and often take issue with third parties using their trademarks in any context, even when the use of the mark does not encroach on the luxury brand’s share of the market. However, the doctrine of nominative fair use allows the use of a brand’s trademark when referring to that brand’s goods. An alleged infringer will be found …

Marshalling Copyright Knowledge To Understand Four Decades Of Berne, Peter K. Yu

Faculty Scholarship

In the year 1978, the 1976 Copyright Act had just entered into effect. Marshall Leaffer, whom this article will affectionately refer to by his first name, had just completed his duties as an attorney advisor at the U.S. Copyright Office. On his way to academia, he, like the fictional character Captain William “Buck” Rogers, was to experience cosmic forces beyond all comprehension. In a freak mishap, his car veered off a rarely used mountain road and was frozen by temperatures beyond imagination. He did not return to academia until more than forty years later. What will he discover upon his …

The 14th Annual Sir Hugh Laddie Lecture - Mr. Justice Laddie And His Intellectual Property Cases: Of Millefeuilles And A Fish Called Elvis, David Vaver

Articles & Book Chapters

For me, it was a trip through the judgments of a master craftsman who could succinctly summarize the dispute before him; weigh the conflicting evidence; say what rang true and what did not; state the applicable law, often from first principles set in their historical and policy context; and end by saying who won and lost and what to do. Copyright law might be "over-strong", as he suggested in a 1996 lecture;14 but when he had to decide whether a TV documentary critical of cheque-book journalism could freely use another channel's footage to make its point, Laddie J. said his …

The Status Of Reproduction Rights Organisations (Rros) In Africa, Desmond Oriakhogba, Dick Kawooya

Joint PIJIP/TLS Research Paper Series

This report is based on desk research conducted from June 2021 to May 2022 by way of a survey of publicly available information on Reproduction Rights Organisations (RROs) in all 55 African Union (AU) member states. It is the first of a two-part study. The second part of the study will be conducted as empirical research where data will be obtained from relevant stakeholders in the collective management systems of African countries to address key issues flagged in this report as requiring further evidence.

This report examines the current status of RROs in Africa to help inform policy and legislative …

Path Choice Of Algorithm Intellectual Property Protection, Yulu Jin, Youdan Xiao

Bulletin of Chinese Academy of Sciences (Chinese Version)

Protection of algorithm by intellectual property is a powerful way to stimulate innovation and regulate the risk of the algorithm. Algorithm that can be protected by intellectual property right is the program algorithm, which is compiled in computer language, in the form of coded instruction sequence, run by the computer and produce independent rational value results. The article is combed out that there are drawbacks to the traditional path of IP to protect program algorithms:it has conflict between program algorithm and copyright law system; the trade secret path is at odds with program algorithmic governance; and program algorithm can hardly …

Providing Farmers With The Legal Tools Needed To Keep The Equipment Running: An Update On The Agricultural Right To Repair Movement, Greg Nies, Bruce Elder

Mountain Plains Business Conference

This presentation examines and summarizes the right to repair movement from the perspective of its origins, development, legal basis and – most significantly – its unique manifestation within an agriculture perspective. The agricultural equipment sector is more concentrated and less competitive than many other industries, while the typical farmer remains fiercely independent and self-reliant. This unique situation has led to conflict, forming the basis of the current agricultural right to repair dispute. Accordingly, the current state of the agricultural right to repair movement is examined and explained based on the recent policy, legislation, and litigation efforts employed at federal and …

Life After Google V. Oracle: Three Reflections On A Theme, Daryl Lim

IP Theory

In 2004, Professor Leaffer published an article titled Life after Eldred: The Supreme Court and the Future of Copyright. He wrote about three cases decided in or after 2001 to provide a snapshot of the Supreme Court’s position on copyright issues. This Article discusses three reflections on this theme. The first reflection flows directly from Google. It discusses fair use in Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, as well as text and data mining for artificial intelligence uses. This Article then reflects on Arnstein v. Porter’s lessons for modern copyright infringement law. Finally, it reflects on the …

Brief Of Patent Law Professors As Amici Curiae In Support Of Petitioners, Christa J. Laser

Law Faculty Briefs and Court Documents

This Court should reverse the Federal Circuit and hold that IPR estoppel extends only to grounds that were raised or could have been raised during the IPR proceeding. Estoppel would therefore extend to instituted grounds, whether raised during the proceeding or not. Estoppel would not extend to uninstituted grounds, such as grounds which might have been challenged in the petition for review but were not.

Reconciling Copyright "Restoration" For Pre-1972 Foreign Sound Recordings With The Classics Protection And Access Act, Tyler T. Ochoa

IP Theory

When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: …

Nonpatentability Of Business Methods: Legal And Economic Analysis, Peter Menell, Michael J. Meurer

Faculty Scholarship

In this brief filed in Bilski vs. Kappos, pending before the U.S. Supreme Court, we argue that the "useful Arts" limitation of the the Intellectual Property Clause of the U.S.Constitution restricts the scope of Congress's patent power to technological advances. Beyond this constitutional limitation, Congress has not extended patent protection to business methods. The subject matter provision of the 1952 Patent Act merely codified existing subject matter categories and limitations, including the exclusion of business methods. The First Inventor Defense Act of 1999 did not alter this limitation on patentable subject matter. It did not amend the subject matter provision. …

Myles Away From Perfect: The Potential Impact On Nil Deals Following Lsu Quarterback’S Retirement, Brian Ahle

SLU Law Journal Online

Just prior to the 2022 College Football Season, Louisiana State University Quarterback Myles Brennan decided to abruptly retire from football. Despite the unexpected finish to his career, Brennan is still going to likely retain all of the money he received in endorsements that were paid through the newly approved “NIL” deals available to collegiate athletes, as a result of a stipulation that these deals cannot be “performance-based”. In this article, Brian Ahle evaluates the potential ways in which endorsers may be able to protect their investments, while still complying with the NIL Policies that provide protections towards the athletes.

Highly Automated Vehicles & Discrimination Against Low-Income Persons, William H. Widen

Articles

Law reform in the United States often reflects a structural bias that advances narrow business interests without addressing broader public interest concerns.' This bias may appear by omitting protective language in laws or regulations which address a subject matter area, such as permitting the testing of highly automated vehicles ("HA Vs") on public roads, while omitting a requirement for a reasonable level of insurance as a condition to obtain a testing permit.2 This Article explores certain social and economic justice implications of laws and regulations governing the design, testing, manufacture, and deployment of HA Vs which might advance a business …

The Emerging Digital Infrastructure For Research In The Humanities, Donald J. Waters

Copyright, Fair Use, Scholarly Communication, etc.

This article advances the thesis that three decades of investments by national and international funders, combined with those of scholars, technologists, librarians, archivists, and their institutions, have resulted in a digital infrastructure in the humanities that is now capable of supporting end-to-end research workflows. The article refers to key developments in the epigraphy and paleography of the premodern period. It draws primarily on work in classical studies but also highlights related work in the adjacent disciplines of Egyptology, ancient Near East studies, and medieval studies. The argument makes a case that much has been achieved but it does not declare …

Legal Perspectives On The Streaming Industry: The United States, Irene Calboli

Faculty Scholarship

In the past decade, streaming has become one of the most popular formats of “consuming” entertainment and other content—from music to videos, and concerts, sports, conferences, and other events. In the United States, the majority of consumers subscribe to one or more streaming services today. Popular streaming services include famous platforms such as Spotify, Netflix, Apple Music, or Apple TV, Pandora, YouTube, and more. Beside subscription-based services, several of these platforms offer “freemium,” or ad-paid version of their services, which allow users to access content with advertisements for free. As elaborated in several industry reports and other publications, the rise …