Law Commons^™

The Uncertain State Of Employee Nonsolicitation Clauses In California, Elena K. Kouvabina

Elena K Kouvabina

Employee nonsolicitation clauses continue to be a common feature of employment agreements in California. While Section 16600 of the California Business and Professions Code prohibits contractual restraints on the practice of a lawful profession, trade or business, in 1985, the California Court of Appeal held that employee nonsolicitation clauses do not violate Section 16600 because they do not significantly affect employees’ ability to engage in a lawful profession, trade or business. In a recent decision, however, the California Supreme Court pronounced that Section 16600 is violated even if a covenant does not completely preclude one from engaging in a lawful …

Copyright And The First Amendment: Comrades, Combatants Or Uneasy Allies?, Joseph P. Bauer

Joseph P. Bauer

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform and perform that work for a extended period of time. The First Amendment, on the other hand, proclaims that Congress “shall make no law ... abridging the freedom of speech or of the press,” thus at least nominally indicating that limitations on …

Cybersquatting At The Intersection Of Internet Domain Names And Trademark Law, Steven Wright

Steven Wright

This is a tutorial about the basic elements of domain name system and trademark law focussing on the interactions between them and specifically on the concept of cybersquatting. The tutorial reviews the structure of the domain name space and it’s associated protocols as well as the legal context for trademarks and the recent advances for adjudication of disputes related to cybersquatting. Some potential impacts of recent extensions proposed for the gTLD domain name space are also considered.

Social Semiotics In The Fair Use Analysis, H Brian Holland

H Brian Holland

Social Semiotics in the Fair Use Analysis

34,314 words (including 380 footnotes)

This article presents an alternate theory of fair use, employing social semiotics as a process theory of meaning-making to frame the transformativeness inquiry. It is an argument for an expansion of fair use based not on theories of authorship or rights of autonomy, but rather a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does this …

Screen Credit And The Writers Guild Of America, 1938-2000: A Study In Labor Market And Idea Market Intermediation, Catherine L. Fisk

Catherine Fisk

This Article explores how the Writers Guild of America facilitates the labor market for writers and the market for ideas, scripts, and treatments for film and TV. The Article, which is based on research in the archives of the Writers Guild not available to the public, argues that the Guild has survived conditions that might lead to de-unionization because of the value it provides all types of writers and all types of employers in managing the labor and idea markets. In particular, the Guild administers two private intellectual property rights systems – the screen credit system and the script registry …

Orphan Business Models: Toward A New Form Of Intellectual Property, Michael Abramowicz

Michael Abramowicz

Drug companies will often have insufficient incentives to undertake clinical testing on drugs ineligible for patent protection. The Orphan Drug Act combats this by providing a limited term of exclusivity to companies willing to shepherd a drug through FDA approval. This is a form of intellectual property protection that might be applied in many contexts beyond drugs, but the literature has not previously addressed the design and potential scope of such protection. Sometimes, no company will pursue a risky business model even when experimentation with that business model would increase expected social welfare, because other companies would free-ride on information …

The Inducement Standard Of Patentability, Michael Abramowicz, John F. Duffy

Michael Abramowicz

In Graham v. John Deere, the Supreme Court explained that patent law’s nonobviousness doctrine is meant to restrict the award of patents only to “those inventions which would not be disclosed or devised but for the inducement of a patent.” This Article argues that this inducement standard, largely ignored in practice, should serve as the doctrinal lodestar. Such an approach would provide a solid economic foundation for the patentability standard and would align patent law with the many other fields of regulatory law that currently apply economic analysis in determining the scope and content of regulation. The Article also offers …

Avatar Experimentation: Human Subjects Research In Virtual Worlds, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within such worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world, because the experience of the virtual world is "real" to them. The …

"Censorship In The Video Game Industry: Government Intervention Or Parental Controls?", Richard J. Hunter Jr., Hector R. Lozada, Ann Mayo

Richard J Hunter Jr.

The article is a comprehensive review of the constitutional issues surrounding legislation which regulates the video game industry in the context of the Illinois Sexually Explicit Video Game Law (SEVGL). The article reviews the process of the Entertainment Software Rating Board (ESRB), the application of strict scrutiny analysis by the Court of Appeals, the discussion relating to the constitutionality of the SEVGL, and revisits the important precedents found in Ginsberg and Miller. The article offers a suggestion for future legislative efforts in the area of regulation of this important industry.

Technology & Copyright Law-The Nfl’S Ability To Protect Its Copyrights In Game Broadcasts, Sonali P. Chitre

Sonali P Chitre

Copyright is critical to protecting sports broadcasts and new technology has evolved to disseminate these broadcasts to the many people that enjoy professional sports. Because of new digital rights in the copyright statute, the NFL has very strong copyright protections that cover Internet, satellite, television, and radio licensing of its broadcasts. This article analyzes the NFL’s “blackout” rule in the context of growing technology and increased copyright protection.

In NFL v. McBee & Bruno’s, Inc., the Eighth Circuit held that defendant sports bar’s display of “blacked-out” games did not fall under an exemption regarding common use since satellite dishes were …

From Open Source Software To Open Patenting: What’S New In The Realm Of Openness?, Mariateresa Maggiolino, Maria Lillà Montagnani

mariateresa maggiolino

This paper analyses the emerging Open Patenting (OP) phenomenon within the boundaries of the Open Source (OS), and against the backdrop of the Open Source Software (OSS). We argues that OP like OSS can be a flexible legal tool capable of shaping the existing IP rules thereby facing some of the limits that the traditional paradigms used for explaining innovation and managing IPRs bear. Further, we maintain that IP differently from OSS is still a kaleidoscopic phenomenon whose boundaries are unsettled and very much affected by the industry to which the subject matter (or innovation) belongs. Part I discusses the …

You Infringed My Patent, Now Wait Until I Sue You: The Federal Circuit’S Decision In Avocent Huntsville Corp. V. Aten International Co., Marta Vanegas

Marta R. Vanegas LL.M.

The Federal Circuit recently held that it lacked personal jurisdiction over a foreign defendant, because neither the patentee’s sales within the forum state, nor their patent enforcement letters constituted sufficient contacts for personal jurisdiction. This Note argues that the Federal Circuit erroneously held that a patentee’s sales in the forum state are irrelevant to specific personal jurisdiction. The Note surveys the legal background of personal jurisdiction in declaratory judgment actions, particularly in the patent context. The Note then argues that the Federal Circuit's recent line of cases incorrectly held that a patentee’s sales of the patented product within the forum …

Rights, Privileges And Access To Information, Alina Ng

Alina Ng

Protecting property rights in creative works represent a classic institutional approach to a specific economic problem of non-rivalness and non-excludability of information. By providing the copyright owner with an enforceable right against non-paying members of society, copyright laws encourage the production and dissemination of literary and artistic works to society for the purposes of learning. Implicit in the grant of property rights is the assumption that commercial incentives foster creative activity and productivity. In recent years, literary and artistic works have increasingly become the subject matter of exclusive property rights and control, particularly as new technologies emerge to provide users …

Good Design: A Proposal For The Proper Protection Of Market-Entry Industrial Design, Susanna Monseau

Susanna Monseau

Empirical research tells us that “[d]esign led companies have produced dramatically better share price performance for their investors.” However, in the U.S., in contrast to all European and the majority of other countries around the world, the legal system provides no specific protection for market-entry design. There is starting to be an appreciation of the importance of design to the economy and how the rise in counterfeit activity hurts designers. This paper argues that this rise in counterfeiting and piracy mean that it is important for Congress to finally create a limited protection for industrial design under U.S. law. It …

Striking A Balance: When Should Trade Secret Law Shield Disclosures To The Government?, Elizabeth A. Rowe

Elizabeth A Rowe

Earlier this year, Toyota issued recalls on over eight million vehicles because of faulty acceleration. Assume that the National Highway Traffic Safety Administration (NHTSA) requests that Toyota allow the government access to the data in black boxes on the recalled cars. The black boxes are operated by proprietary software and can only be accessed with special codes by Toyota. Assume further that Toyota refuses to provide the Black Box data to the government, claiming that it would reveal its trade secrets. How should courts approach what I coin these refusal-to-submit cases? There is a void in the literature and the …

Post-Sale Restrictions On Patented Seeds: Which Law Governs?, Rita S. Heimes

Rita S Heimes

Since the agrichemical industry entered the business of creating genetically engineered seeds, farming in America has never been the same. Patents on these GE seeds have been reinforced with so-called “license” agreements that accompany their sale to farmers. Failure to abide the terms of these agreements can land a farmer in federal district court defending a patent infringement lawsuit. Several states have passed legislation relating to the terms of these contracts (known in the industry as “Technology Use Agreements” or colloquially as “bag-tag” agreements). This article explores whether state laws relating to these bag-tag agreements are enforceable, or whether the …

Copyrighting "Twilight": Digital Copyright Lessons From The Vampire Blogosphere, Jacqueline D. Lipton

Jacqueline D Lipton

In January of 2010 a United States District Court granted an injunction against a Twilight fan magazine for unauthorized use of copyrighted publicity stills . No surprise there. Intellectual property laws deal effectively – some would argue too effectively – with such cases. Nevertheless, recent Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright …

Ip Misuse As Foreclosure, Christina Bohannan

Christina Bohannan

In an age of IP expansionism, the doctrine most explicitly concerned with limiting IP overreaching has no defensible basis in IP policy. “Misuse” relates to the IP holder’s use of licenses and other arrangements to obtain rights “beyond the scope” of a statutory IP grant, but the doctrine has not established adequate principles for identifying the practices that should be condemned. The misuse doctrine evolved in patent law and concerned the tying of patented and unpatented goods. Courts held that such tying violated federal patent policy by expanding the statutory monopoly to include a second product not covered by the …

Indianizing Hollywood: The Debate Over Bollywood's Copyright Infringement, Hariqbal Basi

Hariqbal Basi

For decades, the mainstream Indian film industry, known as Bollywood, has remade copyrighted Hollywood films for the Indian audience without legal repercussions. This practice has gone unnoticed by Hollywood until recently, and accusations have since been brought against Indian filmmakers for copyright infringement. This note provides an in depth analysis of why these potentially infringing films have only become the subject of litigation over the last two years, cultural arguments advanced by Indian filmmakers for why their remakes should constitute original, and not infringing, works, and what the effects of litigation have been. As the two industries become increasingly intertwined, …

Patent Law And The Two Cultures, Peter Lee

Peter Lee

A half century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, this Article addresses challenges that arise when lay judges must engage, understand, and ultimately pass judgment on complex technologies. It first argues that technological subject matter imposes significant cognitive burdens on generalist judges. It then explores the “cognitive miser” model whereby lay persons adopt heuristics and defer to expertise to limit their engagement with technology. Drawing from …

Tying Arrangements And Antitrust Harm, Herbert Hovenkamp

Herbert Hovenkamp

A tying arrangement is a seller’s requirement that a customer may purchase its “tying” product only by taking its “tied” product. In a variable proportion tie the purchaser can vary her purchases of the tied product. For example, a customer might purchase a single printer, but either a contract or technological design requires her to purchase varying numbers of printer cartridges from the same manufacturer. Such arrangements are widely considered to be price discrimination devices, but their economic effects have been controversial.

Price discrimination comes in various “degrees.” In third degree price discrimination the seller isolates two or more different …

Drug Safety And Commercial Speech: Television Advertisements And Reprints On Off-Label Uses, Margaret Gilhooley

Margaret Gilhooley

1/11/10

PREPUBLICATION VERSION

DRUG SAFETY AND COMMERCIAL SPEECH:

TELEVISION ADVERTISEMENTS AND REPRINTS ON OFF-LABEL USES

By Margaret Gilhooley©

ABSTRACT

This paper examines how the constitutional protections for commercial speech have limited the ability of Congress and FDA to regulate prescription drugs in ways that can affect safety. In Thompson v. Western States, the Supreme Court struck down a Congressional restriction on advertisements for unapproved “compound” drugs because a disclosure that FDA had not approved the compound was considered a constitutionally adequate alternative. While drug compounds are a relatively obscure category, the decision influenced Congress in deciding not to require a …

Indianizing Hollywood: The Debate Over Bollywood's Copyright Infringement, Hariqbal Basi

Hariqbal Basi

For decades, the mainstream Indian film industry, known as Bollywood, has remade copyrighted Hollywood films for the Indian audience without legal repercussions. This practice has gone unnoticed by Hollywood until recently, and accusations have since been brought against Indian filmmakers for copyright infringement. This note provides an in depth analysis of why these potentially infringing films have only become the subject of litigation over the last two years, cultural arguments advanced by Indian filmmakers for why their remakes should constitute original, and not infringing, works, and what the effects of litigation have been. As the two industries become increasingly intertwined, …

Strategic Contracting: Contract Law As A Source Of Competitive Advantage, Larry Dimatteo

Larry A DiMatteo

This paper uses sources taken from the legal literature, as well as literature from strategy and human resource management. It explores Professor Gilson’s noted remark in the Yale Law Journal that “business lawyers serve as transaction cost engineers and this function has the potential for creating value.” This exploration focuses on the strategic use of contract law in gaining a competitive advantage and to create value. It begins by differentiating two frames of the contract paradigm. One is the internal frame in which contract law’s inherent flexibility allows for its use as a source of competitive advantage. The second frame …

I Contenuti Digitali: Tecnologie, Diritti E Libertà, Nicola Lucchi

Nicola Lucchi

The book explores the laws and policies governing technology and the access to information. In recent years the content industry is facing a second "Gutenberg revolution". To meet the new consumers demands, in an environment reshaped by new technologies, information and knowledge are reinventing themselves and their business models. The book offers the opportunity to stimulate the knowledge and awareness concerning key strategic choices for the future of digital content. Over the past two decades, as the diffusion of digital technology has become more and more ubiquitous, its incredible methods of reproduction and distribution have created new important issues for …

Jurisdiction And Internet In Relation To Commercial Law Disputes In A European Context, Ulf Maunsbach, Patrik Lindskoug

Ulf Maunsbach

No abstract provided.

Swedish Copyright Evergreens Mini-Maglite?, Hans Henrik Lidgard

Hans Henrik Lidgard

In April 2009 the Swedish Supreme Court recognized copyright protection for the Mini-Maglite® torch as “artware” without any requirement for a special expression level. The overall impression of the well known Mini-Maglite torch was held to be different from other similar torches.The Court held that it displayed a sufficient degree of independence and originality despite the fact that the functional design properties of the torch are neither new nor original. This article investigates the intersection between different IPR rules in Sweden and certain other European countries and the possible extent of the copyright legislation. It concludes that the Swedish position …

The Cfi Microsoft Judgment And Trips Competition Flexibilities, Hans Henrik Lidgard, Tu T. Nguyen

Hans Henrik Lidgard

The CFI Microsoft judgment is a first by any court of a WTO Member, disregarding the competition rules in the TRIPS Agreement to justify the application of domestic competition law to the exercise of IPRs. TRIPS allow WTO Members to enact and apply national competition law to IPR-related anti-competitive practices. The position of the CFI finds support in this fact. Still, it is regretted that the CFI did not invoke the TRIPS competition rules in justifying the Commission’s decision to force Microsoft to supply interoperability information. The article considers the consequences of the European position and the effects of TRIPS …

When Users Are Authors: Authorship In The Age Of Digital Media, Alina Ng

Alina Ng

This Article explores what authorship and creative production means in the digital age. Notions of the author as the creator of the work provided a point of reference for recognizing ownership rights in literary and artistic works in conventional copyright jurisprudence. The role of the author, as the creator and producer of a work, has been seen as distinct and separate from that of the publisher and user. Copyright laws and customary norms protect the author’s rights in his creation to provide the incentive to create and allow him to appropriate the social value generated by his creativity as recognition …

Why The Uspto Should Adopt A Deferred Patent Examination System, David Peter Irimies

David Irimies

To date, the United States Patent & Trademark Office (USPTO) has addressed its two main issues - backlog and stretching pendency times - primarily by throwing resources at them. This approach has failed. This paper explores how the USPTO adopting deferred examination on all non-provisional U.S. patent applications - similar to current Patent Cooperation Treaty practice - would help alleviate these issues. This paper proposes a deferral system, demonstrates how deferred examination could be done at the USPTO as part of its normal practice of examining patent applications, and discusses policy considerations that support and are antagonistic to the USPTO …