Law Commons^™

Intellectual Property Liability For Businesses In The Age Of Ai: What New Liabilities Businesses Using Ai Could Face And The Possible Methods Of Self-Protection, Elizabeth Anne Henderson

Michigan Business & Entrepreneurial Law Review

The invention of Artificial Intelligence (“AI”) has triggered a wave of copyright and trademark litigation that will likely shape the intellectual property laws governing AI for the foreseeable future. Lawsuits against AI giants like Meta and OpenAI stand to declare popular uses of AI as actionable infringement as well as possibly reshape how copyright and trademark law view concepts, such as fair use and derivative works in the age of technology. Meanwhile, businesses are pushing forward rapidly with adopting AI and implementing its use in everyday functions. For many of these businesses, AI is a highly desirable but poorly understood …

Time For A Copyright Remix: Learning From Djs’ Problematic Pandemic Livestreams & Reimagining A More Productive Framework For Music On Social Media, Aaron Thompson

Chicago-Kent Law Review

No abstract provided.

Pack Your Bags…We’Re Moving To The Public Domain: The Expiration Of Copyright Terms And Its Implications On Future Protection, Sophie Ganion

UC Law SF Communications and Entertainment Journal

The following Note addresses the expiration of copyright terms for a multitude of creative works and the various implications of that expiration for their future IP protection. It explores the conflicting perspectives of stakeholders, from the excitement of artists and everyday creatives versus the concerns of industry leaders about the potential erosion of their copyright monopolies. Drawing from landmark cases like Baker v. Selden and Dastar Corporation v. Twentieth Century Fox Film Corp., this Note highlights the complex questions surrounding copyright expiration and the strategic use of trademark protection. The Note emphasizes the necessity for coherent legal frameworks to ensure …

Reshaping Intellectual Property Scholarship From Within, Peter K. Yu

Faculty Scholarship

Written for the Symposium collecting papers from the Race + IP 23 Conference, this article explores intellectual property scholarship that has been either overlooked or marginalized. Because scholars of color are often outsiders looking in, the article identifies opportunities to reshape intellectual property scholarship from within. Even though the focus of this article was chosen with readers of this Symposium in mind, its insights will be relevant to all scholars.

This article begins by calling on scholars to develop a deeper appreciation of the intrinsic motivations of authors and inventors. It then discusses the oft-overlooked inequalities of creativity and innovation …

Make America Healthy: Reducing High Pharmaceutical Prices Without Reducing Innovation, Srividhya Ragavan

Faculty Scholarship

Cost of medication in the United States has historically remained one of the highest in the world. The conundrum that the United States has faced in balancing innovation with affordability of life-saving medications is palpable, especially when faced with the reality of patent monopolies conflicting with healthcare obligations. The result is an overflow of issues, which emphasize the need to delineate limits on innovation to balance pharmaceutical novelty with robust public health within the United States. This has increasingly shifted the focus of patent law into the realm of healthcare issues. Naturally, it leads to an inquiry about how best …

Intellectual Property, Global Inequality, And Subnational Policy Variations, Peter K. Yu

Faculty Scholarship

This chapter criticizes the oversimplification of the binary North–South debate on intellectual property, innovation, and global inequality and highlights the wide geographic, sectoral, and income inequalities within middle-income countries. It begins by explaining why the arrival of these countries has called into question the North–South debate. The chapter then moves from the widely studied subject of global inequality to the underexplored topic of national inequality. Focusing on the intellectual property context, the discussion highlights the considerable subnational variations in the economic and technological conditions of middle-income countries. To combat national inequality, this chapter concludes by recommending interventions in three areas: …

Introduction To Intellectual Property, Innovation And Economic Inequality, Daniel Benoliel, Peter K. Yu

Faculty Scholarship

This chapter provides an introduction to Intellectual Property, Innovation and Economic Inequality. It begins by discussing the problem of economic inequality, including the scale of that problem, types of economic inequality, and extant research on such inequality. The chapter then outlines the structure of this volume, which is divided into three parts: (1) theoretical, empirical, and policy issues; (2) intellectual property and national inequality; and (3) intellectual property and global inequality.

China, The Trips Waiver, And The Global Pandemic Response, Peter K. Yu

Faculty Scholarship

This chapter identifies three distinct reasons why China took a middle-of-the-road position in the debate on the COVID-19 TRIPS waiver at the WTO. It also recounts the country’s more assertive position in the run-up to the adoption of the Ministerial Decision on the waiver. Drawing eight lessons from the international debate on the waiver and the subsequent Ministerial Decision, the chapter offers insights into the future role China can or will play in future international policy debates at the intersection of intellectual property and public health, including during the next pandemic.

The Grapes Of Roth, Bruce E. Boyden

Washington Law Review

Shortly after Roth Greeting Cards was decided in 1970, its offhand reference to the “total concept and feel” of the cards at issue became the dominant standard in copyright law for determining whether two works were substantially similar. That is a remarkable achievement for a phrase that, in the words of the influential Nimmer treatise, “threatens to subvert the very essence of copyright.” It nevertheless had enormous appeal for federal judges, and the reason extends well beyond copyright law. “Total concept and feel” appeared at a critical juncture for the federal judiciary, as an older model of decision-making, based on …

Legal Chefs’ Appetizing Taglines To Engage Consumers In The Age Of Social Media: The Struggle Against Trademark Genericide, Emily Mcdonald

Journal of Food Law & Policy

Many have heard the phrases “raisin bran,” “escalator,” “nylon,” and “aspirin,” all of which are “old” trademarks that have undergone genericide. Genericide occurs when a trademark has become common from the customer’s perspective concerning specific goods or services rather than associated with the source, which is usually the company that registered the trademark. In short, businesses are no longer able to use the trademark exclusively. Another common trademark phrase that became generic was “Taco Tuesday.” In light of the prolific use of social media today, recent data and statistics show that “food” has become a predominant category and trend on …

Data Scraping For Generative Ai—To What Extent?, Jae Yeon Cecilia Kim

Brooklyn Journal of Corporate, Financial & Commercial Law

Generative AI platforms are developed by scraping data from other platforms. This raises complex copyright infringement issues that are yet to be resolved. Courts have attempted to address these problems using the fair use doctrine, which evaluates four factors to determine whether a use infringes on copyright: (1) the purpose and character of the use, (2) the nature of the use, (3) the amount and substantiality of the copyrighted work’s use, and (4) the impact of the use on the market for the original work. Despite efforts to apply this long-established doctrine, challenges persist, including difficulties in identifying the copyright …

Emerging Compliance In The Generative Decentralized Era, Nizan Geslevich Packin

Brooklyn Journal of Corporate, Financial & Commercial Law

Is it the end of compliance as we know it? Emerging technologies such as Artificial Intelligence (“AI”), including Generative AI (“GenAI”), and blockchain are reshaping regulatory compliance in the Web 3.0 era. As machine-generated data becomes the norm, traditional models reliant on human oversight are becoming obsolete, necessitating swift adaptation from regulators and industry stakeholders. Historically, compliance was designed to be managed by humans due to the need for critical thinking, ethical considerations, and nuanced decision-making. Yet, in today’s era, this approach is no longer viable. Addressing this need, Regulatory Technology (“RegTech”) has played a key role in modernizing compliance …

Time To Stop Trip-Ing: The World Needs A New Geographical Indications Agreement, Evan Glatt

Brooklyn Journal of International Law

When it comes to purchasing food and alcohol, a product’s name carries weight and helps consumers make decisions. When the product’s name includes a place and establishes a certain level of quality and expectation, consumers trust that the product is what it purports to be. This concept, the reputation of a particular food product by name, is known as a geographical indication (GI). GIs cover a wide range of products, from the well-known champagne to lesser known products such as Roquefort cheese. GIs create financial value for local producers, contribute to sustainability initiatives, and raise the quality of goods for …

Transforming Fair Use, Glynn Lunney

Faculty Scholarship

In the United States, the fate of fair use, and by extension, copyright itself, hang in the balance. In recent years, courts have disagreed over fair use’s proper scope. On the one side are appellate decisions that interpret fair use broadly. While these decisions do not go so far as to suggest that every reuse is fair, they typically use the talismanic phrase “transformative use” and give it a generous and flexible interpretation. On the other side are appellate decisions that interpret fair use restrictively. While again they do not go so far as to suggest no reuse is fair, …

Intellectual Property, Innovation And Economic Inequality, Daniel Benoliel, Peter K. Yu, Francis Gurry, Keun Lee

Faculty Scholarship

While growing disparities in wealth and income are well-documented across the globe, the role of intellectual property rights is often overlooked. This volume brings together leading commentators from around the world to interrogate the interrelationship between intellectual property and economic inequality. Interdisciplinary and globally oriented by design, the book features economists, legal scholars, policy analysts, and other experts. Chapters address the impact of intellectual property rights on economic inequality, the effect of economic inequality on the protection and enforcement of these rights, and the potential use of innovation law and policy to help reduce economic inequality. The volume also tackles …

United States Fish And Wildlife Service Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

FWS response to OSTP memo, 2022: Public Access Plan (December 2024)

United States Environmental Protection Agency Response To The Ofiice Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

EPA response to OSTP memo, 2022: Public Access Plan (December 2024)

United States Department Of Defense Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

DOD response to OSTP memo, 2022: Public Access Plan (December 2024)

Acf Response To Ostp Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

ACF response to OSTP memo, 2022: Public Access Plan (December 2024)

A Patent And A Prize, Keith N. Hylton

Faculty Scholarship

This paper examines a simple and old question: should innovators receive a patent or a prize? The answer I provide is equally simple: they should receive both. The literature on patents versus prizes has proceeded mostly under the assumption that there should be a choice between a regime of patents and a regime of prizes in which patents fall into the public domain upon award of the prize. There are significant “public choice costs” under the prize plans. By this I mean there are risks of inappropriate transfers to patentees – that is, looting – and of confiscation of patentees, …

Construction Of Data Factor Circulation Law System In The United States And Its Reflection For China, Zihan Lin, Youmei Ma, Feng Guo

Bulletin of Chinese Academy of Sciences (Chinese Version)

As a pioneer country in the global digital economy, the United States has established a relatively complete system for the circulation of data elements. The focus is on government data openness, with the United States forming a legislative system for data openness at both federal and state levels to ensure data freedom and openness. In the field of personal data trading, the United States has established a relatively relaxed legal environment and data brokers to promote data circulation and trading. At present, China is actively promoting the market-oriented allocation reform of data elements, building a multi-level data element market, and …

Understanding Music Copyright Through Legal Analysis And Music Theory, Gillian Radcliffe

Master of Studies in Law Research Papers Repository

This paper focuses on the intersection of law and music. Specifically, the intersection between music copyright law and music theory, and the role of musicologists and music theorists in copyright infringement cases. In particular, the influence they have on court decisions when acting as expert witnesses, or forensic musicologists. Recent decisions regarding copyright infringement in popular music have been strongly influenced by testimony from these forensic musicologists due to the imbalance of musical understanding between the expert and the court.

Forensic musicology is a form of “public music theory,” an approach used by academics in the music theory field when …

Ai Fanfare & Fanfiction: Do Fanfiction Writers Have Protections Against Artificial Intelligence?, Sinbay Tan

Brooklyn Law Review

As artificial intelligence (AI) becomes a familiar topic in everyday conversation and now increasingly in courts, there is a conflict between its use in creative and artistic spaces. While authors and artists enjoy copyright protections that might shield their works from being misused, there are millions of fanfiction writers who have no such protections. After all, the essence of fanfiction is rooted in writing about the characters, settings, and stories made by someone else. After decades of writing online, these fanfiction authors face the threat of having their works scraped up and fed into AI algorithms to be used in …

How Eastern Europe Can Protect Their Cultural Heritage Via Copyright Protection Of Folk Music And How This Compares To Copyright Protection Of Music In The United States, Kostika Kosova

University of Miami International and Comparative Law Review

This note explores the intricate interplay between cultural heritage preservation and copyright protection, focusing on the distinctive case of Eastern European folk music. It delves into the historical and cultural significance of Eastern European folk music traditions, the challenges posed to their preservation, and the copyright protection mechanisms in place across the region. In parallel, the paper provides an in-depth analysis of copyright protection in the United States, highlighting its implications for folk music.

The comparative analysis showcases the unique approaches of Eastern European nations and the United States in safeguarding their respective folk music heritages. By examining key case …

Regulating Chatbot Output Via Inter-Informational Competition, Jiawei Zhang

Northwestern Journal of Technology and Intellectual Property

The advent of ChatGPT has sparked over a year of regulatory frenzy. Policymakers across jurisdictions have embarked on an AI regulatory “arms race,” and worldwide researchers have begun devising a potpourri of regulatory schemes to handle the content risks posed by generative AI products as represented by ChatGPT. However, few existing studies have rigorously questioned the assumption that, if left unregulated, AI chatbot’s output would inflict tangible, severe real harm on human affairs. Most researchers have overlooked the critical possibility that the information market itself can effectively mitigate these risks and, as a result, they tend to use regulatory tools …

Between Copyright And Computer Science: The Law And Ethics Of Generative Ai, Devin R. Desai, Mark Riedl

Northwestern Journal of Technology and Intellectual Property

Copyright and computer science continue to intersect and clash, but they can coexist. The advent of new technologies such as digitization of visual and aural creations, sharing technologies, search engines, social media offerings, and more, challenge copyright-based industries and reopen questions about the reach of copyright law. Breakthroughs in artificial intelligence research, especially Large Language Models that leverage copyrighted material as part of training, are the latest examples of the ongoing tension between copyright and computer science. The exuberance, rush-to-market, and edge problem cases created by a few misguided companies now raises challenges to core legal doctrines and may shift …

Fair Use, Licensing, And Authors' Rights In The Age Of Generative Ai, Celeste Shen

Northwestern Journal of Technology and Intellectual Property

The rise of generative AI technologies has introduced unprecedented challenges to copyright law, particularly around the fair use of copyrighted works in AI training processes. Generative AI tools, such as ChatGPT, are trained on vast datasets that often include copyrighted material, typically without the consent of authors or compensation for use. This widespread, unauthorized use has led to legal disputes, with plaintiffs asserting that using protected texts in training AI models constitutes copyright infringement. This Note examines the application of the fair use doctrine to generative AI, analyzing each of the four statutory factors to demonstrate that generative AI’s commercial …

Attributing Ai Authorship: Towards A System Of Icons For Legal And Ethical Disclosure, Joseph J. Avery, Patricia Sánchez Abril, Alissa Del Riego

Northwestern Journal of Technology and Intellectual Property

Over the past year, the pervasive role of large language models (LLMs) and artificial intelligence (AI) in text generation has precipitated concerns about ethical usage, authorship, and transparent attribution. This has been true in legal practice, academia, and the corporate world, as well as in countless other arenas. In this Article, we identify the gap that has opened between those demanding proper disclosure (we should know when and to what extent AI is an author) and those struggling to respond to these demands. Part of the problem is that there is no system in place, no lingua franca, no set …

Kei Briefing Note 2024:8 The Basic Proposal For The Design Law Treaty (Dlt) And Its Inappropriate Restrictions On Transparency, James Love

Joint PIJIP/TLS Research Paper Series

The World Intellectual Property Organization (WIPO) is holding a diplomatic conference from November 11 to 22, 2024 in Riyadh, Saudi Arabia, to conclude and adopt a Design Law Treaty (DLT). The negotiators will be working from the documents dated May 10, 2024: a thirty-one page “Basic Proposal For The Design Law Treaty” (DLT/DC/3), and a sixteen page “Basic Proposal For The Regulations Under The Design Law Treaty” (DLT/DC/4), both documents submitted by the Director General of WIPO, as well as a nineteen page, “Notes On The Basic Proposal For The Design Law Treaty” (DTL/DC/5), prepared by the WIPO Secretariat.

While …

Feasibility Of Technical Solutions For The Detection Of Falsified Images In Research, Phill Jones, Hylke Koers

Copyright, Fair Use, Scholarly Communication, etc.

In this report, we discuss the findings of an investigation into the feasibility of developing a research image integrity system. The focus was primarily on immunohistochemistry blots and microscopy images, although the findings are relevant to other types of research images such as gel blots and spectroscopy, geophysical, or astronomical images, as well as to any digital data type. The investigation comprised a mix of desk research and semi-structured (anonymized) interviews with nine stakeholders representing publishers, researchers, technologists, and microscopy companies.

We found that it would be possible to implement a system to assert image integrity and that the technology …