Law Commons^™

Facebook 2 Blackberry And Database Trading Systems: Morphing Social Networking To Business Growth In A Global Recession, Roger M. Groves

Roger M. Groves

FACEBOOK 2 BLACKBERRY AND DATABASE TRADING SYSTEMS: MORPHING SOCIAL NETWORKING TO BUSINESS GROWTH IN A GLOBAL RECESSION Summary Facebook has now applications to the Blackberry Smartphone and IPhone. And Facebook has exploded internationally. If the Facebook social networking technology has applications to Blackberry, why not business? And as any business looks for growth, the market is not an existing heavily saturated United States, but a global market. Can the Facebook model of data sharing be customized to propel US technology firms into new international markets? This article claims the affirmative, through a multilateral clearing system, with credits and vouchers, as …

Who Owns Your Body? A Study In Literature And Law, Lori B. Andrews

Lori B. Andrews

No abstract provided.

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.

Plain Language Patents, Robin C. Feldman

Robin C Feldman

Law is a process of Bounded Adaptation. The law that exists at any given moment is constantly driven to adapt to changing circumstances within the framework of what has gone before. The boundaries of that framework are policed by the necessity of articulating an interpretation in a way that gains general acceptance. It is the need to effectively articulate a common logic that mitigates the distortion of personal perspective.

This process of Bounded Adaptation cannot proceed effectively without an adequately structured dialogue that will promote the flow of information and analysis. Nowhere is this dialogue more challenging than at the …

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 …

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

Lori B. Andrews

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 …

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 …

Intellectual Property And Human Rights: Learning To Live Together, Daniel J. Gervais

Daniel J Gervais

Intellectual property and human rights must learn to live together. Traditionally, there have been two dominant views of this “cohabitation,” namely a conflict view, which emphasizes the negative impacts of intellectual property on rights such as freedom of expression or the right to health and security, and a compatibility model, which emphasizes that both sets of rights strive towards the same fundamental equilibrium. This Chapter takes the dualist view that both are right, though there is, and should be, much more truth to the second approach in the coming years.

Making Money Making Music, Alan E. Garfield

Alan E Garfield

No abstract provided.

Differing Shades Of Meaning, Robin C. Feldman

Robin C Feldman

The relationship between patent law and antitrust law has challenged legal minds since the emergence of antitrust law in the late 19th century. In reductionist form, the two concepts pose a natural contradiction: One encourages monopoly while the other restricts it. To avoid uncomfortable dissonance, the trend across time has been to try to harmonize patent and antitrust law. In particular, harmonization efforts in recent decades have led Congress and the courts to engage in a series of attempts, some aborted and some half-formed, to graft antitrust doctrines onto patent law. These efforts have failed to resolve the conflicts.

This …

Holdup, Royalty Stacking, And The Presumption Of Injunctive Relief For Patent Infringement: A Reply To Lemley And Shapiro, J. Gregory Sidak

J. Gregory Sidak

Professors Mark Lemley and Carl Shapiro have presented a theoretical argument for weakening the presumption of injunctive relief in patent infringement cases. In this article, I evaluate the Lemley-Shapiro theoretical model of “patent holdup.” I dispute its main finding that the threat of an injunction inflates royalty payments in many cases relative to a hypothetical benchmark royalty rate. I also dispute the Lemley-Shapiro policy prescriptions for patent law reform, which would remove the presumption of injunctive relief in cases where the patented product is a component of a larger product or the patentee is a non-practicing entity. I conclude that …

Is Apple Playing Fair? Navigating The Ipod Fairplay Drm Controversy, Nicola F. Sharpe, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

On April 2, 2007, Apple Inc. and EMI Music held a joint press conference in London that may be the harbinger of significant changes in the digital music arena. This press conference, whose attendees included EMI Group CEO Eric Nicoli and Apple CEO Steve Jobs, unfolded in an environment of significant technological and commercial changes in the music industry. The shift to the digital era has been a turbulent one for many players in the music industry, particularly as a result of the widespread distribution of unauthorized digital music files and the concurrent significant decline in record industry sales. The …

Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll

Michael W. Carroll

In eBay v. MercExchange, the Supreme Court correctly rejected a one-size-fits-all approach to patent injunctions. However, the Court's opinion does not fully recognize that the problem of uniformity in patent law is more general and that this problem cannot be solved through case-by-case analysis. This Essay provides a field guide for implementing eBay using functional analysis and insights from a uniformity-cost framework developed more fully in prior work. While there can be no general rule governing equitable relief in patent cases, the traditional four factor analysis for injunctive relief should lead the cases to cluster around certain patterns that often …

Fair Use And The Fairer Sex: Gender, Feminism, And Copyright Law, Ann Bartow

Ann Bartow

Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when …

Why Do We Have Trade Secrets?, Michael Risch

Michael Risch

Trade secrets are arguably the most important and most litigated form of intellectual property, yet very little has been written that justifies their existence, perhaps because they differ so much from other forms of intellectual property. This article explores the history of trade secret law in the United States and examines why it is that every state has opted to protect secret information, even though such protection is antithetical to the policies of access associated with patent law and non-protection of 'facts' associated with copyright law. In this article, I examine four potential ways to justify trade secret law. First, …

Third Party Copyright After Grokster, Alfred C. Yen

Alfred C. Yen

This Article studies the construction of third party copyright liability after the recent Supreme Court case Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. This inquiry is important because third party copyright liability has become a controversial area of law that affects the viability of entire industries. Unfortunately, the law governing third party copyright liability is unclear. Grokster involved a claim of third party liability against defendants whose technology supported the sharing of music over the Internet, and it represents the Supreme Court’s attempt to bring coherence to the relevant law.

Grokster is a difficult case to understand. It added a new …

A Technological Theory Of The Arms Race, Lee B. Kovarsky

Lee Kovarsky

Although the 'technological arms race' has recently emerged as a vogue-ish piece of legal terminology, scholarship has quite conspicuously failed to explore the phenomenon systematically. What are 'technological' arms races? Why do they happen? Does the recent spike in scholarly attention actually reflect their novelty? Are they always inefficient? How do they differ from military ones? What role can legal institutions play in slowing them down? In this Article I seek to answer these questions. I argue that copyright enforcement and self-help represent substitutable tactics for regulating access to expressive assets, and that the efficacy of each tactic depends on …

Tradition, Tech, And Transformation: Information Technologies And The Intellectual Property Of Indigenous Peoples, Sam Grey

Sam Grey

Changes brought about by the globalization of laws and markets, and the geometric expansion of technological innovation, make intellectual property issues nebulous and mercurial, to the point that keeping pace with changes in the field is a full-time pursuit requiring a high degree of skill and dedication. For nations-within-nations, as is the status of most Native groups worldwide, intellectual property presents a particularly difficult legal and political problem, as indeed intellectual property rights (IPR) regimes challenge the sovereignty of even the strongest and most 'modern' of nation-states. Authorities on the protection of traditional knowledge (TK), resources, and cultural expressions assert …

Likelihood Of Confusion, Ann Bartow

Ann Bartow

The primary objective of this Article is to illustrate the tendency of judges to inappropriately rely on personal intuition and subjective, internalized stereotypes when ruling on trademark disputes. Where jurists perceive consumers as ludicrously easily confused, trademark holders can exploit these views to secure broad trademark "rights," often without offering a shred of evidentiary corroboration concerning such confusion. As a consequence, the proof required to support allegations that a trademark usage creates a likelihood of confusion is potentially lessened in all cases, making trademarks normatively stronger, broader, and ever easier to "protect" for mark holders. Whether consumers realistically benefit from …

A Primer On U.S. Intellectual Property Rights Applicable To Music Information Retrieval Systems, Michael W. Carroll

Michael W. Carroll

Digital technology has had a significant impact on the ways in which music information can be stored, transmitted, and used. Within the information sciences, music information retrieval has become an increasingly important and complex field. This brief article is addressed primarily to those involved in the design and implementation of systems for storing and retrieving digital files containing musical notation, recorded music, and relevant metadata – hereinafter referred to as a Music Information Retrieval System (“MIRS”). In particular, this group includes information specialists, software engineers, and the attorneys who advise them. Although peer-to-peer computer applications, such as Napster’s MusicShare or …

International Antitrust And The Wto: The Lesson From Intellectual Property, Andrew Guzman

Andrew T Guzman

No abstract provided.

Beyond Blue Gene: Intellectual Property And Bioinformatics, Matthew Rimmer

Matthew Rimmer

Intellectual Property And Domestic Relations: Issues To Consider, Ann Bartow

Ann Bartow

Intellectual property (IP) is a term that denotes intangible yet legally protected products of human creativity. The main types of IP include patents, copyrights, and trademarks. This article provides an overview of the special IP issues that can arise in the contexts of divorce, estate planning, or probate.

Intellectual Property And Domestic Relations: Issues To Consider When There Is An Artist, Author, Inventor, Or Celebrity In The House, Ann Bartow

Ann Bartow

This article articulates some of the special issues raised by intellectual property in the context of family-law-oriented concerns. It also necessarily explores the characteristics and properties of personal intellectual property in a broader sense. What follows is an overview of the special issues and concerns intellectual property might present in the context of divorce, estate planning, or probate. Please keep one important caveat in mind: Intellectual property has become a very dynamic area of the law. Governing federal patent, copyright, and trademark statutes are extensively amended with astounding frequency. Right of publicity and trade secret law are also constantly evolving. …

Escape From Copyright: Market Success Vs. Statutory Failure In The Protection Of Expressive Works, Tom W. Bell

Tom W. Bell

Copyright law, originally excused as a necessary evil, threatens now to become an inescapable burden. Because state and common law rights seemed inadequate to protect expressive works from unrestricted copying, the Founders expressly authorized federal copyright legislation. Lawmakers have read that constitutional mandate liberally. Each new version of the Copyright Act has embodied longer, broader, and more powerful legal protections. Meanwhile, private initiatives have developed increasingly effective means of safeguarding copyrighted works. Alarmed that these dual trends benefit copyright owners at too great an expense to the public interest, many commentators argue that the Copyright Act should limit and preempt …

Our Data, Ourselves: Privacy, Propertization, And Gender , Ann Bartow

Ann Bartow

This Article starts by providing an overview of the types of personal data that is collected via the Internet, and the ways in which this information is used. The author asserts that because women are more likely to shop and share information in cyberspace, the impact of commodification of personal data disproportionately impacts females, enabling them to be "targeted" by marketing campaigns, and stripping them of personal privacy. The author then surveys the legal terrain of personal information privacy, and concludes that it is unlikely that the government will step in to provide consumers with substantive privacy rights or protections. …

Our Data, Ourselves: Privacy, Propertization, And Gender, Ann Bartow

Ann Bartow

This Article starts by providing an overview of the types of personal data that is collected via the Internet, and the ways in which this information is used. The author asserts that because women are more likely to shop and share information in cyberspace, the impact of commodification of personal data disproportionately impacts females, enabling them to be "targeted" by marketing campaigns, and stripping them of personal privacy. The author then surveys the legal terrain of personal information privacy, and concludes that it is unlikely that the government will step in to provide consumers with substantive privacy rights or protections. …

Virtual Trade Dress: A Very Real Problem, Tom Bell

Tom W. Bell

A tragedy looms for trade dress. Encouraged by bad case law and tempted by new technologies, trade dress threatens to assume a role properly reserved for other forms of intellectual property. Trade dress should aim primarily at protecting the public from confusing the features that identify goods and services. Current trends, however, risk expanding trade dress until it constitutes the very commodities that it once merely identified. Superficially genuine but fundamentally artificial, this is virtual trade dress.