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Full-Text Articles in Law
International Copyright Law And Litigation: A Mechanism For Improvement, Roberto Garza Barbosa
International Copyright Law And Litigation: A Mechanism For Improvement, Roberto Garza Barbosa
Marquette Intellectual Property Law Review
This article outlines the challenges of international copyright litigation and considers rights and remedies available under TRIPs and the laws of various national copyright statutes. To keep pace with new technology, the author proposes a mechanism for the enforcement of existing rights around the world, while counter the prevailing problems of the ease of infringement and expense of enforcement.
Reverse Engineering Of Computer Programs Under The Dmca: Recognizing A "Fair Access" Defense, Donna L. Lee
Reverse Engineering Of Computer Programs Under The Dmca: Recognizing A "Fair Access" Defense, Donna L. Lee
Marquette Intellectual Property Law Review
Courts have consistently held that reverse engineering constitutes fair use under the Copyright Act. When Congress enacted the DMCA, it intended to codify the settled law. Nonetheless, the exemption Congress carved out for reverse engineering in the DMCA is too narrowly crafted to accommodate the many different purposes of reverse engineering. This Comment suggests that courts should develop a fair access defense for reverse engineering undertaken for purposes that do not satisfy the requirements of the DMCA exemption but do enable other, fair use-defensible uses of computer programs. The Comment outlines three factors to consider in applying a fair access …
All Rights Reserved? Cultural Monopoly And The Troubles With Copyright , Michael Geist
All Rights Reserved? Cultural Monopoly And The Troubles With Copyright , Michael Geist
Marquette Intellectual Property Law Review
With an increasing ease for one to download, trade and share information, there is also an increasing desire by companies, corporations and private interests to protect their works. In a time where everything can be commoditized and ideas can be bought and sold at a price, a question we must answer is - Who owns our creativity? Must all rights be reserved? This lecture explores the growth of the citizen journalist and the blossoming of independent creativity online. He also examines the concerns with copyright: how lobby groups have consistently pushed for ever stronger rules. Finally, Dr. Geist presents the …
"Infringed" Versus "Infringing": Different Interpretations Of The Word "Work" And The Effect On The Deterrence Goal Of Copyright Law, Sarah A. Zawada
"Infringed" Versus "Infringing": Different Interpretations Of The Word "Work" And The Effect On The Deterrence Goal Of Copyright Law, Sarah A. Zawada
Marquette Intellectual Property Law Review
One of the key elements that courts use to determine an appropriate statutory damage award in a copyright infringement case is the number of infringements of a copyright. How does a court determine the number of infringements when one infringing article has been printed six times in over one hundred copies of a magazine? Before the Copyright Act of 1976 went into effect, many courts adhered to the "multiplicity doctrine" and would have awarded statutory damages in the above scenarios for each of the six times that the infringing article was printed or the infringing song was played. Post-1976, however, …
Do We Have Too Many Intellectual Property Rights?, Richard A. Posner
Do We Have Too Many Intellectual Property Rights?, Richard A. Posner
Marquette Intellectual Property Law Review
The Honorable Richard A. Posner discusses the dangers presented by the propertization of intellectual property rights, particularly in the areas of copyright and patent. Unlike physical property, intellectual property rights are limited by duration, scope, and allowance of faire use. These limitations underlie the existence of a rich public domain that encourages the most valuable uses of intellectual property by reducing transaction costs and encouraging the creation of additional creative works.
Divergent Evolution Of The Patent Power And The Copyright Power, Edward C. Walterscheid
Divergent Evolution Of The Patent Power And The Copyright Power, Edward C. Walterscheid
Marquette Intellectual Property Law Review
Patent and copyright law in the United States derives from a constitutional grant of power to Congress, which drafted the Patent and Copyright Acts. The U.S. Supreme Court has addressed the meaning of various terms in the Patent and Copyright Clause, but only addressed the constitutionality of a copyright statute in 2003. The Court has never considered the constitutionality of a patent statute. The purpose of this article is to explore Congress' and the courts' diverging interpretations of the patent and copyright powers. It explores the reasons for this divergence, tracing the historic kinship between the two powers from the …
A Technical Critique Of Fifty Software Patents, Martin Campbell-Kelly, Patrick Valduriez
A Technical Critique Of Fifty Software Patents, Martin Campbell-Kelly, Patrick Valduriez
Marquette Intellectual Property Law Review
There has been a great deal of discussion on the desirability of software patents in the legal, economic, and technical academic literature. Case law is the basis of most of the legal literature on the topic. Typically, the basis of the economic literature on patents is the statistical analysis of large numbers of patents. The technical literature frequently hostile to patents often is based on an examination of a small number of pathologically bad patents The authors seek to overcome the inherent limitations of each category of article. The approach taken was to conduct a detailed, technical examination of the …
Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais
Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais
Marquette Intellectual Property Law Review
This paper argues that it is time to replace the existing set of copyright rights by focusing on its true policy objectives. The paper identifies what is wrong with extant norms and spotlights the apparent chasm between the policy objectives and the norms. The paper proposes a new international copyright norm based on the Berne Convention's three-step test, in harmony with the U.S. fair use doctrine. The author suggests that fair use reflects an appropriate set of criteria to balance the rights of copyright holders and the needs and interests of users, which could serve as a basis to build …
The Spawn Of Learned Hand-A Reexamination Of Copyright Protection And Fictional Characters: How Distinctly Delineated Must The Story Be Told?, Gregory S. Schienke
The Spawn Of Learned Hand-A Reexamination Of Copyright Protection And Fictional Characters: How Distinctly Delineated Must The Story Be Told?, Gregory S. Schienke
Marquette Intellectual Property Law Review
Fictional characters are the backbone of the multi-billion dollar entertainment industry. Since the early twentieth century, the owners of fictional characters have recognized that there is money to be made in derivative products featuring those characters and move swiftly to stop infringing use of those characters. Learned Hand, in passing, allowed that fictional characters could be protected through copyright law if the characters were distinctly delineated. Since then, the courts have created a piecemeal protective-strategy involving trademark and copyright law to protect fictional characters. The Seventh Circuit in Gaiman v. McFarlane, continued using the traditional analysis, that copyrightability for a …
An Umbrella Or A Canopy?: Why The 17 U.S.C. Section 512(A) Safe Harbor Should Be Read Broadly, Sven Skillrud
An Umbrella Or A Canopy?: Why The 17 U.S.C. Section 512(A) Safe Harbor Should Be Read Broadly, Sven Skillrud
Marquette Intellectual Property Law Review
With technology constantly changing, the interaction between copyright law and technology is always at odds, especially since the evolution of the Internet. To keep up with the ever-changing Internet, Congress enacted the Digital Millennium Copyright Act; specifically, it created four safe harbors that are intended to protect entities from copyright infringement that qualify as online service providers. However, it seems that the courts have had trouble interpreting who is covered under these safe harbors, namely, as to what entities qualify under the first safe harbor "Transitory Digital Network Communications." There are only a few cases where entities have qualified under …
The Architectural Works Copyright Protection Act: Much Ado About Something?, Antoinette Vacca
The Architectural Works Copyright Protection Act: Much Ado About Something?, Antoinette Vacca
Marquette Intellectual Property Law Review
The AWCPA has been in effect for thirteen years, enough time for an evaluation of its effect on those who have been working within its framework. Has the Architectural Works Copyright Protection Act of 1990 (AWCPA) met the public's interests by encouraging original and innovative design? U.S. intellectual property laws are founded on balancing benefit to the public with reward and incentive to the author, while the standards of protection under the Berne Convention are grounded in the principle that copyright is a natural right of the author. The AWCPA of 1990 adopted the Berne Standard of according protection to …
Peer-To-Peer File Sharing And Technological Sabotage Tactics: No Legislation Required, Hillary M. Kowalski
Peer-To-Peer File Sharing And Technological Sabotage Tactics: No Legislation Required, Hillary M. Kowalski
Marquette Intellectual Property Law Review
This comment examines the current state of downloading of copyrighted material using peer-to-peer (P2P) technology. The author overviews the P2P technology and details tactics being used by copyright holders to protect their works on the P2P networks. The author next analyzes various legal issues surrounding the copyright-protection tactics. The author concludes by examining proposed legislation designed to benefit copyright holders and asserts that Congressional intervention enabling sabotage tactics will not solve the P2P problem because such retaliatory measures will only worsen the situation by aggravating music lovers.
What Does Pruneyard Have To Do With California Internet Trade Secret Law?, Adam J. Sheridan
What Does Pruneyard Have To Do With California Internet Trade Secret Law?, Adam J. Sheridan
Marquette Intellectual Property Law Review
This comment discusses the facts of the Bunner case and the decisions of the Sixth District and the Supreme Court. The Bunner case involves Andrew Bunner and his act of putting a link on his Web page allowing visitors to access a Digitial Video Disc (DVD) descrambler program, which allowed a computer user to decrypt DVDs. The DVD Copy Control Association sought an injunction against Bunner under the California Uniform Trade Secrets Act (UTSA). The author analyzes the historical protection given free speech and trade secrets under California law. Looking at the Bunner case in light of Pruneyard, the author …
Protection For Indigenous Peoples And Their Traditional Knowledge: Would A Registry System Reduce The Misappropriation Of Traditional Knowledge?, Thomas J, Krumenacher
Protection For Indigenous Peoples And Their Traditional Knowledge: Would A Registry System Reduce The Misappropriation Of Traditional Knowledge?, Thomas J, Krumenacher
Marquette Intellectual Property Law Review
This Comment examines the controversy over whether a registry system is the best way to prevent Western inventors from obtaining intellectual property protection for traditional knowledge that has been misappropriated from underdeveloped parts of the world. This dilemma exists because traditional knowledge often constitutes patentable subject matter, most indigenous peoples do not subscribe to a Western "property rights" view of the world, and exploitation of traditional knowledge has become easier through improved communication capabilities. This Comment argues in favor of a registry system to catalog traditional knowledge; patent examiners would deny patent protection to any invention that replicates traditional knowledge. …
Market Definition In Intellectual Property Law: Should Intellectual Property Courts Use An Antitrust Approach To Market Definition?, Anna F. Kingsbury
Market Definition In Intellectual Property Law: Should Intellectual Property Courts Use An Antitrust Approach To Market Definition?, Anna F. Kingsbury
Marquette Intellectual Property Law Review
In her Article, Ms. Kingsbury notes that American courts do not use antitrust law's market definition approach in intellectual property cases. She discusses five potential rationales for this dichotomy: (1) intellectual property cases involve new products without defined markets; (2) market definition limits judicial flexibility; (3) courts do not want to burden intellectual property litigants with the time and expense of economic evidence; (4) judges reason from precedent, and that precedent did not consider market definition; and (5) "market" conveys a different meaning in intellectual property law than it does in antitrust law. Kingsbury presents counterarguments to these rationales and …
Counting Down Another Music Marathon: Copyright Arbitration Royalty Panels And The Case Of Internet Radio, Sara J. O'Connell
Counting Down Another Music Marathon: Copyright Arbitration Royalty Panels And The Case Of Internet Radio, Sara J. O'Connell
Marquette Intellectual Property Law Review
Ms. O'Connell won the Computer Law Association's 2003 Information Technology Law Writing Competition for this article discussing the controversy over Copyright Arbitration Royalty Panels ("CARPs"). A CARP sets royalty rates for the performance of copyrighted works when the copyright owner and the broadcaster have not agreed on those rates. Congress created CARPs as a way to encourage the creation of creative works and to promote public access to these creative works. Recently, a CARP recommended royalty rates for webcasting; the broadcasting of copyrighted works over the Internet. The CARP's recommendation was rejected by the Librarian of Congress, criticized by both …
The Copyrightability Of Sports Celebration Moves: Dance Fever Or Just Plain Sick? , Hennry M. Abromson
The Copyrightability Of Sports Celebration Moves: Dance Fever Or Just Plain Sick? , Hennry M. Abromson
Marquette Sports Law Review
No abstract provided.
Football Play Scripts: A Potential Pitfall For Federal Copyright Law? , Brent C. Moberg
Football Play Scripts: A Potential Pitfall For Federal Copyright Law? , Brent C. Moberg
Marquette Sports Law Review
No abstract provided.
The Role Of Intellectual Property Rights In Negotiating And Planning A Research Joint Venture, Kurt M. Saunders
The Role Of Intellectual Property Rights In Negotiating And Planning A Research Joint Venture, Kurt M. Saunders
Marquette Intellectual Property Law Review
This Article considers the role of intellectual property rights in research joint ventures. Professor Saunders begins by outlining the various advantages of pursuing research in a joint venture business form, including the sharing of expertise and investment costs. The author identifies and elucidates the intellectual property issues, as well as related licensing and antitrust implications, that arise in the joint venture context. Most notably, Saunders articulates the different intellectual property concerns that surface at each separate stage-from negotiation and planning, to termination of the collaboration.
Comments On Cyber Copyright Disputes In The People's Republic Of China: Maintaining The Status Quo While Expanding The Doctrine Of Profit-Making Purposes, Wei Yanliang, Feng Xiaoqing
Comments On Cyber Copyright Disputes In The People's Republic Of China: Maintaining The Status Quo While Expanding The Doctrine Of Profit-Making Purposes, Wei Yanliang, Feng Xiaoqing
Marquette Intellectual Property Law Review
This Article addresses the status of cyber copyright disputes in the People's Republic of China with an inside view of the government's influence and control over copyrighted works. Examining cyber copyright case law, the authors seek to answer the question of whether China's 2001 Copyright Law will lead to an increase in royalty payments under a fair distribution system. The need for equitable, consistent enforcement is pressing, as the proliferation of copyrighted material through mobile phone and Internet use is rapidly increasing. In China, all current-affairs news first flows through state-run news organizations. Thus, in order to post the news, …
Understanding The Impact Of The Digital Millennium Copyright Act On The Open Source Model Of Software Development, Theodore C. Mccullough
Understanding The Impact Of The Digital Millennium Copyright Act On The Open Source Model Of Software Development, Theodore C. Mccullough
Marquette Intellectual Property Law Review
Mr. McCullough discusses the Digital Millennium Copyright Act (DMCA), and the traditional and open source models of software development. He argues that the "DMCA supports the 'Traditional Model' of software development, at the expense of the 'Open Source Model,' by limiting the ability of open source developers to write programs that increase interoperability and by limiting their ability to engage in peer review for such programs." He also discusses the competing interpretations of the Reverse Engineering Safe Harbor and proposes statutory solutions to the overall lack of protection afforded to software developers using copyrightable materials to promote interoperability.
"Originality" After The Dead Sea Scrolls Decision: Implications For The American Law Of Copyright, Urzula Tempska
"Originality" After The Dead Sea Scrolls Decision: Implications For The American Law Of Copyright, Urzula Tempska
Marquette Intellectual Property Law Review
Ms. Tempska examines the Israel Supreme Court's ruling on August 31, 2002 regarding reconstruction and copyright infringement of the Dead Sea Scrolls. She reviews the copyrightability doctrine and its possible misapplications, illustrates the reconstruction process of the text involving the Dead Sea Scrolls, and describes the legal arguments and procedure of the Dead Sea Scrolls case. Tempska concludes that: 1) the arguments opposing copyright protection fail because they gloss over the facts of the reconstruction process and disregard the originality requirement for copyrightability under United States law; 2) the Israeli court's copyrightability analyses adequately accounted for the creative process, the …
The United States Court Of Appeals For The Federal Circuit: The Promise And Perils Of A Court Of Limited Jurisdiction , Randall R. Rader
The United States Court Of Appeals For The Federal Circuit: The Promise And Perils Of A Court Of Limited Jurisdiction , Randall R. Rader
Marquette Intellectual Property Law Review
Honorable Randall Rader, of the United States Court of Appeals for the Federal Circuit discusses current criticisms of the Federal Circuit and the speed of which the Circuit sets precedent. Before addressing these issues, Judge Rader posits a belief that the standard by which the Circuit is being judged is incorrect. Judge Rader's speech gives a foundation by which a correct standard should be exacted, examples of the current atmosphere leading to the precedents being set, and generally addresses why the Federal Circuit is fundamentally unique from other jurisdictions.
Give The Smaller Players A Chance: Shaping The Digital Economy Through Antitrust And Copyright Law, Douglas L. Rogers
Give The Smaller Players A Chance: Shaping The Digital Economy Through Antitrust And Copyright Law, Douglas L. Rogers
Marquette Intellectual Property Law Review
In this article, Mr. Rogers examines the tension in the digital world between the application of (a) antitrust law, which promotes competition and (b) copyright law, which limits competition in order to promote progress in science and art. He reviews the prohibitions against the exercise of monopoly power in section 2 of the Sherman Act (15 U.S.C.) and proposes a test for anti-competitive conduct that includes close scrutiny of the contract restrictions and marketing practices of those that have significant market power. Arguing that product design decisions are not immune from antitrust review, he proposes examining alleged efficiency justifications for …
Source Code Escrow: An Exercise In Futility?, Jonathan L. Mezrich
Source Code Escrow: An Exercise In Futility?, Jonathan L. Mezrich
Marquette Intellectual Property Law Review
Jonathan Mezrich argues that as businesses become more dependent upon computer software, they will also seek a means of protection for their investment in the software they purchase. Currently, a popular means of protection is through source code escrow. However, despite the current popularity of escrow accounts, Mr. Mezrich writes that these mechanisms may in fact not actually be necessary. He focuses on several key points that demonstrate this point including the life of the protected software, infrequency of escrow releases, and the move to open source applications. He also examines deficiencies of confidentiality, limited liability and indemnity as they …
"The Rich Man's Eight Track": Mp3 Files, Copyright Infringement, And Fair Use , Kathryn I. Mullen
"The Rich Man's Eight Track": Mp3 Files, Copyright Infringement, And Fair Use , Kathryn I. Mullen
Marquette Intellectual Property Law Review
An objective of copyright law is to promote creativity and the dissemination of ideas by granting artists, writers, and other creators of artistic works a limited monopoly in their works. MP3 files consist of a digital audio compression algorithm that makes an audio file smaller without reducing sound quality. One problem created by this technology is that when combined with the Internet, millions of people can simultaneously access, reproduce and distribute copyrighted works in digitized form without authorization. Under this premise, Ms. Mullen presents two case studies concerning MP3.com and Napster, in which she relates their various characteristics to copyright …
Digital Copyright, By Jessica Litman , J. Ryan Miller
Digital Copyright, By Jessica Litman , J. Ryan Miller
Marquette Intellectual Property Law Review
Jessica Litman's book focuses on the Copyright Act, in relation to modern entertainment technology. For example, each time an image from the Internet is viewed through a personal computer, the viewer has reproduced the original image, because a computer's RAM makes a temporary copy in order to allow the image to be viewed. The entertainment industry's concern about potential copyright infringement resulted in the enactment of the Digital Millennium Copyright Act. Professor Litman provides a history of the negotiation and lobbying that created the Copyright Act of 1976, and then provides a commentary regarding Napster and the expanding amount of …
Global Technology Protection: Moving Past The Treaty, Todd M. Rowe
Global Technology Protection: Moving Past The Treaty, Todd M. Rowe
Marquette Intellectual Property Law Review
This Comment examines whether the conformity achieved by international technology treaties is at the expense of utility. Specifically, the author posits that international agreements do not serve the needs of rich and poor nations alike. Instead, the author advocates for increased autonomy by claiming better solutions will be produced when nations enter bi-lateral agreements. In reaching this conclusion, the Comment analyzes the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the problems created for developing nations through global technology protections. The author uses the United States' patent, copyright, and trademark protections as an illustrative example of how successful …
Copyright Law In The Digital Age: Malum In Se And Malum Prohibitum, Sheldon W. Halpern
Copyright Law In The Digital Age: Malum In Se And Malum Prohibitum, Sheldon W. Halpern
Marquette Intellectual Property Law Review
The scale of copyright piracy has changed, allowing creative works to be distributed globally with a click of a mouse. People's attitudes towards infringing on someone else's protected work have changed as well due to the simplicity and speed of the digital infringing process. This lecture discusses how one can tailor copyright law to accommodate technological changes. First, the lecturer discusses how an act of infringement needs to be defined as malum in se rather than malum prohibitum in order for infringement to be taken seriously. The lecturer suggests that a radically different approach to some of the fundamental principles …
"Gathering His Beames With A Christall Glass": The Intellectual Property Jurisprudence Of Stephen G. Breyer, Gordon R. Shea
"Gathering His Beames With A Christall Glass": The Intellectual Property Jurisprudence Of Stephen G. Breyer, Gordon R. Shea
Marquette Intellectual Property Law Review
Focusing on Qualitex v. Jacobs Products, an opinion authored by Supreme Court Justice Breyer that extends trademark protection to colors, the Author examines Justice Breyer's attitude toward intellectual property law, how Justice Breyer's views were extended in Qualitex, and how Justice Breyer's views may affect intellectual property law in the future.