Law Commons^™

Keynote Lecture For Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - 2008, Wendy J. Gordon

Scholarship Chronologically

One of the things that unifies many of the scholars in IP generally, and in this room in particular, is an interest in what you might call noncommercial models cooperative sharing, peer-to-peer creativity-a yearning for a different kind of life, perhaps, one that's less commercial, more focused on dialogues, both democratic and personal, and a mode of life that emphasizes the process and product of work rather than its monetary payoff. We all know from the work of Teresa Amabile and Alfie Cohen and our own experience that if you are keeping your eye on a monetary goal or getting …

Bits, Ippas, Trips And Icsid: Justice For Some, Alphabet Soup For All, Christopher Wadlow

Christopher Wadlow

Examines the possibility that ICSID (the International Centre for Settlement of Investment Disputes) might be a more favourable forum than the WTO for private party complaints of violations of the TRIPs Agreement, if the state conduct alleged to violate TRIPs amounted to expropriation or breach of the principle of fair and equitable treatment.

The Harry Potter Lexicon And The World Of Fandom: Fan Fiction, Outsider Works, And Copyright, Aaron Schwabach

Aaron Schwabach

Fan fiction, long a nearly invisible form of outsider art, has grown exponentially in volume and legal importance in the past decade. Because of its nature, authorship, and underground status, fan fiction stands at an intersection of issues of property, sexuality, and gender. This article examines three disputes over fan writings, concluding with the recent dispute between J.K. Rowling and Steven Vander Ark over the Harry Potter Lexicon, which Rowling once praised and more recently succeeded in suppressing. The article builds on and adds to the emerging body of scholarship on fan fiction, concluding that much fan fiction is fair …

Patents As Property: Conceptualizing The Exclusive Right(S) In Patent Law, Adam Mossoff

Adam Mossoff

The conventional wisdom is that the definition of patents as property has been long settled: unlike land and chattels, which secure the traditional "bundle" of rights, patents secure only a negative right to exclude. In exploring the history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, a patent was defined by Congress and courts in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding legal doctrines, …

Copyright Infringement In The Internet Age - Primetime For Harmonized Conflict-Of-Laws Rules?, Anita B. Frohlich

Anita B Frohlich

The traditionally national nature of law endangers its very raison d’être in today’s interconnected and borderless world. Conflict-of-laws methodology may prove to represent an adequate means to maintain relevance of national legal tradition in presence of the increasingly international nature of legal disputes. Here, I propose that only a harmonized conflict-of-laws framework can achieve this goal. Specifically, I focus on international copyright law since (1) the current national jurisprudence in this field is unsatisfactory and disparate, (2) international intellectual property law has so far mostly failed to cross-fertilize with the field of conflict of laws, and (3) there have been …

Kentucky Fried Blog: How The Recent Ejection Of A Blogger From The College World Series Raises Novel Questions About The First Amendment, Intellectual Property, And The Intersection Of Law And Technology In The 21st Century, Christian Keeney

Christian Keeney

The attached comment discusses potential conflicts between law and technology using a recent controversy as an example. Additionally, the author proposes a solution to avoid such conflicts in the future.

Copycats, Relax - The Federal Circuit Lightens Up On Willful Patent Infringement, Sarah J. Garber

Missouri Law Review

"Willful" infringement is alleged in over 90% of patent cases. This is primarily because, under the Patent Act and Federal Circuit case law, a finding of willful infringement gives trial judges the discretion to award treble damages and attorney's fees to the patentee. Given that patent infringement actions can carry litigation fees of two million dollars or more, an award of punitive damages is a serious threat to accused infringers. A common and powerful defense to a willful infringement allegation is reasonable reliance on an opinion of counsel. Using this defense, the accused infringer can prove he acted in good …

Influenza Genetic Sequence Patents: Where Intellectual Property Clashes With Public Health Needs, Lori B. Andrews, Laura A. Shackelton

Lori B. Andrews

Intellectual Property Piracy: Perception And Reality In China, The United States, And Elsewhere, Aaron Schwabach

Faculty Scholarship

No abstract provided.

Open Source, Open Access, Open Transfer: Market Approaches To Research Bottlenecks, Robin C. Feldman

Robin C Feldman

One of the most hotly contested issues in the field of intellectual property law concerns the existence, or non-existence, of patent thickets and the extent to which any such bottlenecks may be interfering with research. For decades, scholars warned that problems related to the over proliferation of patent rights would interfere with innovation. In contrast, a growing body of commentary argues that patent thickets are not a problem in modern industries. Either patent thickets do not exist, or if they do, patent thickets do not interfere with the progress of research.

The rhetoric is particularly heated these days because of …

Trademark Litigation As Consumer Conflict, Michael Grynberg

College of Law Faculty

Trademark litigation typically unfolds as a battle between competing sellers who argue over whether the defendant's conduct is likely to confuse consumers. This is an unfair fight. In the traditional narrative, the plaintiff defends her trademark while simultaneously protecting consumers at risk for confusion. The defendant, relatively speaking, stands alone. The resulting "two-against-one" storyline gives short shrift to the interests of nonconfused consumers who may have a stake in the defendant's conduct. As a result, courts are too receptive to nontraditional trademark claims where the case for consumer harm is questionable. Better outcomes are available by appreciating trademark litigation's parallel …

Level Of Skill And Long-Felt Need: Notes On A Forgotten Future, Joe Miller

Scholarly Works

The Supreme Court's KSR decision transforms the way we think about patent law's ordinary artisan. The ordinary artisan, the Supreme Court states, is also a person of ordinary creativity, not an automaton. This transformation, which sweeps aside a contrary precept that had informed the Federal Circuit's nonobviousness jurisprudence for a generation, raises a key question: How do we fill out the rest of our conception, in a given case, of the ordinary artisan's level of skill at the time the invention was made? Reaching back to a large vein of case law typified by Judge Learned Hand's decisions about nonobviousness, …

Cell Phone Ringtones: A Case Study Exemplifying The Complexities Of The Section 115 Mechanical License Of The Copyright Act Of 1976, Daniel M. Simon

Duke Law Journal

Most Americans carry their cell phones everywhere. Cell phone users can purchase ringtones to replace the traditional telephone ring. But often the ringtones are excerpts from copyrighted works, including popular music. This technology has grown enormously in a short time span, forcing lawmakers to consider its applicability to copyright laws that predate ringtones' existence by nearly fifty years. This Note examines the mechanical license provision of the Copyright Act of 1976, including its overlooked legislative history, to determine whether the mechanical license applies to ringtones. It concludes that the statute's requirements exclude most types of ringtones from the scope of …

Economic Foundations Of Intellectual Property Rights, Joseph E. Stiglitz

Duke Law Journal

No abstract provided.

The Pope's Copyright? Aligning Incentives With Reality By Using Creative Motivation To Shape Copyright Protection, Lydia P. Loren

Lydia P Loren

In the United States utilitarian theory posits that granting an exclusive right in creative expression will provide a necessary incentive to invest in the creation and distribution of expressive works. It is feared that without this incentive there would be insufficient motivation for creation. Indeed, it appears that the U.S. adheres completely to the notion that “no man but a blockhead ever wrote, except for money.” Yet the creation of many works, such as email and papel decrees, ordinarily are not motivated by monetary incentives. Nevertheless, current copyright protection fails to account for the creator’s motivation in determining the level …

Internet Packet Sniffing And Its Impact On The Network Neutrality Debate And The Balance Of Power Between Intellectual Property Creators And Consumers, Rob Frieden

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Intellectual Property And Americana, Or Why Ip Gets The Blues, Michael J. Madison

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Valuable Asset Or Vibrant Force? Intellectual Property And Conceptions Of Culture, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Discussions of intellectual property as property often implicitly rely upon conceptions of value that give primacy to economic and business value while dismissing or even ignoring questions of cultural value. Questions of cultural value are, however, fundamental to discussions of intellectual property today. Discussions of intellectual property often emphasize treating cultural material as valuable assets and highlight the role of intellectual property in protecting such assets. Valuable asset models of culture accentuate the business and economic utility of intellectual property assets. Valuable asset approaches, however, typically reflect an incomplete understanding of the roles of culture and the intersection of culture …

Law's Misguided Love Affair With Science, Robin Feldman

Robin C Feldman

The allure of science has always captivated members of the legal profession. Its siren’s song has followed us throughout much of American legal history. We look to science to rescue us from the experience of uncertainty and the discomfort of difficult legal decisions, and we are constantly disappointed.

The notion of what constitutes science and what it would take to make law more scientific varies across time. What does not vary is our constant return to the well. We are constantly seduced into believing that some new science will provide answers to law’s dilemmas, and we are constantly disappointed.

This …

Addressing Default Trends In Patent-Based Section 337 Proceedings In The United States International Trade Commission, John C. Evans

Michigan Law Review

Section 337 of the Tarif Act of 1930 empowers the United States International Trade Commission to investigate imports to ensure imports do not infringe on U.S. trademarks. The Commission permits patent, copyright, and trademark owners to notify the Commission of possibly infringing imports and to obtain exclusion orders that prevent importation of products that infringe their intellectual property. The total number of investigations increased from 1996 to 2005, yet the proportion of respondent defaults rose as well. The increase in defaults suggests there is some systemic difficulty in ensuring full participation. This Note argues that the res judicata effects of …

Mythical Beginnings Of Intellectual Property, Jessica M. Silbey

Jessica Silbey

It has become commonplace to justify intellectual property protection with homage to utilitarianism (maximizing the incentive to create, invent or produce quality goods) or natural rights (people should own the product of their creative, inventive or commercial labor). Despite the on-going dominance of these theories, there remains a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection. This is in part because the economic analysis of law tends to undervalue the humanistic element of intellectual property. This Article aims to fill that void. It offers a new explanation for intellectual property rooted in narrative theory. Whereas …

Embryonic Stem Cells, Intellectual Property, And Patents: Ethical Concerns, Samuel Packer

Hofstra Law Review

No abstract provided.

Law's Complexity: A Primer, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The legal system. It rolls easily off the tongues of lawyers like a single word - the legal system - as if we all know what it means. But what is the legal system? How does it behave? What are its boundaries? What is its input and output? How will it look in one year? In ten years? How should we use it to make change in some other aspect of social life? Why do answers to these questions make the legal system seem so complex? Would assembling a cogent, descriptively accurate theory of what makes the legal system complex …

Google And Fair Use, Jonathan Band

Journal of Business & Technology Law

No abstract provided.

User-Generated Content And The Future Of Copyright: Part One--Investiture Of Ownership, Steven Hetcher

Vanderbilt Journal of Entertainment & Technology Law

While user-generated content (UGC) has been around for quite some time, the digital age has led to an explosion of new forms of UGC. Current UGC mega-sites, such as YouTube, Facebook, and MySpace, have given UGC a new level of significance, due to their ability to bring together large numbers of users to interact in new ways. The "user" in UGC generally refers to amateurs, but also includes professionals and amateurs aspiring to become professionals. "Generated" is synonymous with created, reflecting the inclusion of some minimal amount of creativity in the user's work. Finally, "content" refers to digital content, or …

Viewing Virtual Property Ownership Through The Lens Of Innovation, Ryan G. Vacca

Law Faculty Scholarship

Over the past several years scholars have wrestled with how property rights in items created in virtual worlds should be conceptualized. Regardless of how the property is conceptualized and what property theory best fits, most agree the law ought to recognize virtual property as property and vest someone with those rights.

Indirect Infringement From A Tort Law Perspective, Charles W. Adams

University of Richmond Law Review

No abstract provided.

The Mythical Beginnings Of Intellectual Property, Jessica Silbey

Faculty Scholarship

People commonly justify intellectual property protection with homage to utilitarianism (protecting the incentive to create, invent, or produce quality goods to maximize net social welfare) or natural rights (people should own the product of their creative, inventive, or commercial labor). Despite the ongoing dominance of these theories, a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection remains. One reason for this failure is that economic analysis of intellectual property law tends to undervalue its humanistic element. Whereas utilitarianism and natural rights theories are familiar, at least one other basis for intellectual property protection exists. This …

Common Ground: The Case For Collaboration Between Anti-Poverty Advocates And Public Interest Intellectual Property Advocates, Deborah J. Cantrell

Publications

This article examines the previously unappreciated common ground between scholars and advocates who work to eliminate poverty, and scholars and advocates who work on intellectual property issues in the public interest. The article first illustrates how scholars and advocates working on poverty and on public interest intellectual property have relied on rights talk to frame their social movements. Under the conventional narrative, the framing has accentuated differences between the movements. As the Article explains, the two movements share core principles and should recognize shared interests and goals. By developing a new model of how to view public interest movements, the …

Questioning The Justifiability Of Innovation Protection In Antimicrobial Drugs: A Law And Economics Perspective, Ankur Sood, Vardaan Ahluwalia

Northwestern Journal of Technology and Intellectual Property

No abstract provided.