Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
Articles 1 - 30 of 48
Full-Text Articles in Law
Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder
Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder
Duke Law & Technology Review
No abstract provided.
Imaginary Bottles, Jessica Litman
Selling Wine Without Bottles: The Economy Of Mind On The Global Net, John Perry Barlow
Selling Wine Without Bottles: The Economy Of Mind On The Global Net, John Perry Barlow
Duke Law & Technology Review
No abstract provided.
The Enigma Of Digitized Property A Tribute To John Perry Barlow, Pamela Samuelson, Kathryn Hashimoto
The Enigma Of Digitized Property A Tribute To John Perry Barlow, Pamela Samuelson, Kathryn Hashimoto
Duke Law & Technology Review
No abstract provided.
The Past And Future Of The Internet: A Symposium For John Perry Barlow
The Past And Future Of The Internet: A Symposium For John Perry Barlow
Duke Law & Technology Review
No abstract provided.
Sensible Agnosticism: An Updated Approach To Domain-Name Trademark Infringement, Shiveh Roxana Reed
Sensible Agnosticism: An Updated Approach To Domain-Name Trademark Infringement, Shiveh Roxana Reed
Duke Law Journal
The Internet era has brought a new battlefield to U.S.-trademark-law disputes: domain names. Trademark owners have vigorously challenged the registration of domain names that consist of-or merely include-their trademarked terms, suing these domain-name registrants in U.S. courts for trademark infringement. During the early years of the Internet, courts often found consumer confusion-and thus trademark infringement-in these cases. As Internet use has developed, however, many courts have not recognized the growing sophistication of online consumers. This Note proposes that U.S. courts adapt their analyses to recognize evolving consumer behavior and expectations. This updated analysis, based on a 2010 Ninth Circuit opinion, …
Rethinking Novelty In Patent Law, Sean B. Seymore
Rethinking Novelty In Patent Law, Sean B. Seymore
Duke Law Journal
The novelty requirement seeks to ensure that a patent will not issue if the public already possesses the invention. Although gauging possession is usually straightforward for simple inventions, it can be difficult for those in complex fields like biotechnology, chemistry, and pharmaceuticals. For example, if a drug company seeks to patent a promising molecule that was disclosed but never physically made in the prior art, the key possession question is whether a person having ordinary skill in the art (PHOSITA) could have made it at the time of the prior disclosure. Put differently, could the PHOSITA rely on then-existing knowledge …
Economic Foundations Of Intellectual Property Rights, Joseph E. Stiglitz
Economic Foundations Of Intellectual Property Rights, Joseph E. Stiglitz
Duke Law Journal
No abstract provided.
Cell Phone Ringtones: A Case Study Exemplifying The Complexities Of The Section 115 Mechanical License Of The Copyright Act Of 1976, Daniel M. Simon
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 …
Two Thoughts About Traditional Knowledge, William Fisher
Two Thoughts About Traditional Knowledge, William Fisher
Law and Contemporary Problems
Fisher argues the traditional knowledge of environmentalism and the public domain ideas by presenting two combined related themes involving the British colonist of Native Americans. The idea of devaluing the Indian's nonacquisitive, natural, respectful way of living lightly upon the land while conserving it, and fostering imperialism and unjust conquest. Among other things, he formulates three parallel provisions to the TRIPS Agreement to increase the leverage of the countries in determining the terms on which flora, fauna, medicinal knowledge, folklore, and traditional art forms are exploited by others.
The Ends Of Intellectual Property: Health As A Case Study, Arti K. Rai
The Ends Of Intellectual Property: Health As A Case Study, Arti K. Rai
Law and Contemporary Problems
Rai points out the great limitations of some conventional measures of efficiency and cites quality-adjusted life years (QALY), an alternative measure that is actually used in making health-care decisions, as an example. the ability to pay. Quantifying benefits in terms of QALY does not give us a neutral measure of worth, of course but it does expose the value judgments being made and give us a yardstick other than intuition or anecdote for measuring effects. Thus, she argues that rather than giving up on economic analysis, other ways to broaden its scope should be sought.
The Anarchist In The Coffee House: A Brief Consideration Of Local Culture, The Free Culture Movement, And Prospects For A Global Public Sphere, Siva Vaidhyanathan
The Anarchist In The Coffee House: A Brief Consideration Of Local Culture, The Free Culture Movement, And Prospects For A Global Public Sphere, Siva Vaidhyanathan
Law and Contemporary Problems
Jürgen Habermas' influential historical work, The Structural Transformation of the Public Sphere, describes a moment in the social and political history of Europe in which a rising bourgeoisie was able to gather in salons and cafes to discuss matters of public concern. The public sphere represented a set of sites and conventions in the eighteenth century in which (almost exclusively male) members of the bourgeoisie could forge a third space to mediate between domestic concerns and matters of state. Here, Vaidhyanathan examines one particular Public Sphere experiment--the rise of a global Free Culture Movement that aims to limit the spread …
Network Rules, Susan P. Crawford
Network Rules, Susan P. Crawford
Law and Contemporary Problems
Crawford compares the debate between the telcos and the online companies over broadband access regimes often called the "network neutrality" debate to the ongoing tussle between intellectual property maximalists and "free culture" advocates which are strikingly parallel sets of arguments. The maximalists claim that creativity comes from lone genuises (the romantic author) who must be given legal incentives to works but intellectual property scholars have carefully examined the incentives of their arguments and have pointed out that granting overly strong property rights to copyright holders might not be socially appropriate. Moreover, the network providers claim that they (the romantic builders) …
The Invention Of Traditional Knowledge, Madhavi Sunder
The Invention Of Traditional Knowledge, Madhavi Sunder
Law and Contemporary Problems
Sunder argues that the failure of intellectual property to recognize the contributions of traditional and natural sources cannot be rectified by mere payment and she posits a non-monetizable, non-utilitarian benefit in terms of worth or dignity in having one's contribution as the subject labelled of an intellectual property right. Foregrounding the important role of "raw materials" in the process of innovation, cultural environmentalism helped provide a theoretical and political basis for recognition and recompense for the purveyors of those raw materials-often indigenous peoples who have cultivated the earth's biodiversity and who hold "traditional knowledge" about that biodiversity. Moreover, focus on …
Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet
Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet
Law and Contemporary Problems
Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but know less about the choices people make about copyright on a daily basis, especially when they are not working. Here, Tushnet examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Among other things, she discusses some differences between fair use and fan practices, focused around attribution as an alternative …
Cultural Environmentalism And The Constructed Commons, Molly Shaffer Van Houweling
Cultural Environmentalism And The Constructed Commons, Molly Shaffer Van Houweling
Law and Contemporary Problems
Van Houweling explores both the benefits and failings of conservation easements on land on the one hand and the licensing commons on the other. Conservation easement The tools of cultural environmentalism in the lights of objections to conservation easements and more general concerns with complicated and fragmented property rights are also considered. Among other things, she provides clear theoretical differences between the public domain, where freedom is based on the absence of property rights, and the licensing commons, where freedom is based on the absence on the preemptive exercise of the property rights by the rights holder in order to …
On The Need To Expand Article 23 Of The Trips Agreement, Aaron C. Lang
On The Need To Expand Article 23 Of The Trips Agreement, Aaron C. Lang
Duke Journal of Comparative & International Law
No abstract provided.
Assessing The Barriers To Universal Antiretroviral Treatment Access For Hiv/Aids In South Africa, Mary Beth Walker
Assessing The Barriers To Universal Antiretroviral Treatment Access For Hiv/Aids In South Africa, Mary Beth Walker
Duke Journal of Comparative & International Law
No abstract provided.
Cabining Intellectual Property Through A Property Paradigm, Michael A. Carrier
Cabining Intellectual Property Through A Property Paradigm, Michael A. Carrier
Duke Law Journal
One of the most revolutionary legal changes in the past generation has been the “propertization” of intellectual property (IP). The duration and scope of rights expand without limit, and courts and companies treat IP as absolute property, bereft of any restraints. But astonishingly, scholars have not yet recognized that propertization also can lead to the narrowing of IP. In contrast to much of the literature, which criticizes the propertization of IP, this Article takes it as a given. For the transformation is irreversible, sinking its tentacles further into public and corporate consciousness (as well as the IP laws) with each …
Indigenous Rights And Intellectual Property Law: A Comparison Of The United States And Australia, Rachael Grad
Indigenous Rights And Intellectual Property Law: A Comparison Of The United States And Australia, Rachael Grad
Duke Journal of Comparative & International Law
No abstract provided.
The Architecture Of Innovation, Lawrence Lessig
The Architecture Of Innovation, Lawrence Lessig
Duke Law Journal
No abstract provided.
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
Duke Law Journal
No abstract provided.
Quieting The Virtual Prison Riot: Why The Internet’S Spirit Of “Sharing” Must Be Broken, Albert Z. Kovacs
Quieting The Virtual Prison Riot: Why The Internet’S Spirit Of “Sharing” Must Be Broken, Albert Z. Kovacs
Duke Law Journal
No abstract provided.
Piracy In Russia And China: A Different U.S. Reaction, Connie Neigel
Piracy In Russia And China: A Different U.S. Reaction, Connie Neigel
Law and Contemporary Problems
Both Russia and China refused to adopt international copyright agreements until pressured by other countries, particularly the US. The US has pursued China's copyright abuses more aggressively than it has pursued similar abuses by Russia. Neigel attempts to explain the reasons for this disparate treatment.
The First Amendment And Cyberspace: The Clinton Years, James Boyle
The First Amendment And Cyberspace: The Clinton Years, James Boyle
Law and Contemporary Problems
Both in terms of speech regulation and in terms of providing raw material for the legal controversies that shape the law of the First Amendment, the legacy of Pres Clinton's Administration is considerable, and nowhere more than in cyberspace. The most visible example of the Clinton Administration's role in cyberspeech regulation are the Communications Decency Act, which was struck down by unanimous vote of the Supreme Court in 1997, and the Child Online Protection Act, which is now before the courts.
Freedom Of Speech And Injunctions In Intellectual Property Cases, Mark A. Lemley, Eugene Volokh
Freedom Of Speech And Injunctions In Intellectual Property Cases, Mark A. Lemley, Eugene Volokh
Duke Law Journal
Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Even though libel may inflict truly irreparable harm on its victim, the most a libel plaintiff can hope for is damages, or perhaps a permanent injunction after final adjudication, not preliminary relief. Professors Lemley and Volokh argue the same rule should apply to preliminary injunctions in many copyright, trademark, right of publicity, and trade secret cases. They note that intellectual property rights, unlike other property rights, are a form of content-based, government-imposed speech restriction. The mere fact that the restriction is denominated a "property …
From Patchwork To Network: Strategies For International Intellectual Property In Flux, Paul Edward Geller
From Patchwork To Network: Strategies For International Intellectual Property In Flux, Paul Edward Geller
Duke Journal of Comparative & International Law
No abstract provided.
The Relationship Between Intellectual Property Rights And Foreign Direct Investment, Carlos A. Primo Braga, Carsten Fink
The Relationship Between Intellectual Property Rights And Foreign Direct Investment, Carlos A. Primo Braga, Carsten Fink
Duke Journal of Comparative & International Law
No abstract provided.
The Conditions Of The Judicial And Administrative Protection Of Copyright In China, Wu Shulin
The Conditions Of The Judicial And Administrative Protection Of Copyright In China, Wu Shulin
Duke Journal of Comparative & International Law
No abstract provided.
Administrative Management And Enforcement Of Copyright In China, Chen Zhaokuan
Administrative Management And Enforcement Of Copyright In China, Chen Zhaokuan
Duke Journal of Comparative & International Law
No abstract provided.