Law Commons^™

Social Networking: A Conceptual Analysis Of A Data Controller, Rebecca Wong

Dr Rebecca Wong

This article updates a working party looking at the definition of a "data controller" under the Data Protection Directive 95/46/EC within the context of a social networking environment. In brief, the article considers twhether the phenomenom of social networking (through Facebook (FB), MySpace and Bebo) has produced unintended consequences in the interpretation and application of the Data Protection Directive 95/46/EC to the online environment. The Data Protection Directive 95/46/EC defines a "data controller" broadly to refer to the 'natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means …

Evaluation Of The Design Piracy Prohibition Act: Is The Cure Worse Than The Disease?, Silvia Beltrametti

Silvia Beltrametti

Abstract: Is the Design Piracy Prohibition Act a necessary addition to the Intellectual Property panorama of the United States? American designers and otherwise creative minds do not have any means to protect their innovative design creations because none of the existing intellectual property measures can be tailored to the protection of design rights. To explore this issue, I go back to the underlying reasons for prohibiting the trade of counterfeit goods and I argue that counterfeiting and design piracy are analytically similar and there is no reason justifying a different legal treatment, especially given the close interrelation of these two …

Prospective Of Foreign Prosecution History Estoppel In Korean Patent Litigation, Hyung Joon Lee

Hyung Joon Lee

This Article responds to an emerging view, in patent litigation, to employ foreign prosecution history estoppel as a doctrine in claim construction. In this regard, the United States Court of Appeals for the Federal Circuit (hereinafter, referred to as CAFC) has found a representation made during a patent litigation in Korea to be effective as a prosecution history estoppel in a U.S. patent infringement suit, i.e., AstraZeneca v. Andrx Pharmaceuticals (04-1562). This Article reviews the foundation of this decision, such as Doctrine of Equivalents and Prosecution History Estoppel. Subsequently, the present Article examines several important cases to analyze the applicability …

The Imperfect Is The Enemy Of The Good: Anticircumvention Versus Open Innovation, Wendy Seltzer

Wendy Seltzer

Digital Rights Management, law-backed technological control of usage of copyrighted works, is clearly imperfect: It often fails to stop piracy and frequently blocks non-infringing uses. Yet the drive to correct these imperfections masks a deeper conflict, between the DRM system of anticircumvention and open development in the entire surrounding media environment. This conflict, at the heart of the DRM schema, will only deepen, even if other aspects of DRM can be improved. This paper takes a systemic look at the legal, technical, and business environment of DRM to highlight this openness conflict and its effects.

Scholars have described DRM’s failures …

How (Not) To Discourage The Unscrupulous Copyist, Peter L. Ludwig

Peter L. Ludwig

This short article explores how the U.S. and Japanese courts implement the doctrine of equivalence when determining patent infringement. The doctrine of equivalence is a balance of, on one hand, the public’s interest to know the metes and bounds of the patent; and on the other hand, the private interest of the patentee to be granted a sufficient scope for the granted patent. After comparing and contrasting the courts’ implementation of the doctrine, I propose a new method that places the burden on the patent practitioner, before infringement proceedings begin, to determine the proper scope of the patent.

Vietnam's Eligibility To Receive Trade Benefits Under The U.S. Generalized System Of Preferences, Alexander H. Tuzin

Alexander H. Tuzin

Last year, Vietnam officially requested to receive trade benefits under the U.S. Generalized System of Preferences (GSP) as a beneficiary developing country. The accompanying article initially examines the role of GSP programs within the WTO system, and then provides a comprehensive analysis of Vietnam’s prospects for receiving trade benefits under the U.S. GSP system. Vietnam remains a very poor country, and it could benefit considerably from preferential treatment under the U.S. GSP program. However, Vietnam’s compliance with the GSP eligibility criteria is problematic. In particular, Vietnam’s protections for both intellectual property rights and worker rights are inadequate. Ultimately, this article …

21st Century Trade Agreements: Implications For Development Sovereignty, Rachel D. Thrasher, Kevin P. Gallagher

Rachel D Thrasher

This paper examines the extent to which the emerging world trading regime leaves nations the “policy space” to deploy effective policy for long-run diversification and development and the extent to which there is a convergence of such policy space under global and regional trade regimes. We examine the economic theory of trade and long-run growth and underscore the fact that traditional theories lose luster in the presence of the need for long-run dynamic comparative advantages and when market failures are rife. We then review a “toolbox” of policies that have been deployed by developed and developing countries past and present …

Licensing Complementary Patents: ‘Patent Trolls’, Market Structure, And ‘Excessive’ Royalties, Anne S. Layne-Farrar, Klaus Schmidt

Anne S. Layne-Farrar

The infamous Blackberry case brought new attention to so-called “patent trolls” and began the general association of trolls with “non-practicing” patent holders. This has had important legal consequences: Namely, patent holders have been denied injunctive relief because they did not practice the patents themselves. In this paper we analyze how patent holders –– both non-practicing and vertically integrated –– choose their royalties depending on the structure of the upstream and downstream markets and the types of licensing agreements available. We show that a vertically integrated firm has an incentive to raise its rivals’ costs and to restrict entry on the …

Essay: Justice Sotomayor On The Supreme Court: A Boon For Business?, Dana M. Muir, David Baumer, Stephanie Greene, Gideon Mark, Robert E. Thomas

Dana M. Muir

In this essay, five business law professors with specialties in five different doctrinal areas analyze Justice Sonia Sotomayor’s jurisprudence in those areas and consider the implications of her appointment to the Supreme Court. Each of the areas, intellectual property, antitrust, securities, ERISA, and employment law, involves an area of federal law of significant importance to businesses. Although employment law also is a matter of state law, this essay focuses on the federal employment law statutes. Based on our analysis, we believe that Justice Sotomayor will approach business cases from a neutral perspective. Overall, we find support for the generally accepted …

Three Years After Ebay (2009) What Do Patent Holders Need To Prove To Get An Injunction? What Is The Significance Of Competition Between The Parties?, Stacy B. Streur

Stacy B. Streur

The U.S. Supreme Court decision in eBay v. MercExchange, 547 U.S. 388(2006),has had a significant and lasting impact on the process district courts use to analyze requests for permanent injunctive relief in patent infringement actions. It has not, however, had a significant and lasting impact on the outcome of those decisions. In the first year after the eBay decision there was a spike in the number of requests for injunctive relief that were denied; but, since that time, most jurisdictions have returned to the pre-eBay practice of generally, absent a compelling public interest concern, granting permanent injunctive relief against patent …

From The Mouths Of Babes: Protecting Child Authors From Themselves, Julie Cromer Young

Julie Cromer Young

This article explores the explosion of copyright protection now granted to authors under the age of eighteen, the age of majority in most states. Historically, contracting parties have been able to use the doctrine of infancy to disaffirm contracts they made when they were not yet of legal age. The Internet is changing this. As with most Internet sites, sites targeted at minors require young authors to accept terms of use in order to publish and distribute works online. Those terms and conditions often compromise the copyrights of the child authors, preventing them from reclaiming the licenses once the authors …

Pharma’S Strategies On Fighting Generics And Healthcare Reform, Rongxiang Liu

Rongxiang Liu

This article first briefly reviews the Hatch-Waxman Act. The Act authorizes a scheme to make it much easier to obtain marketing approval for generics, as well as gives incentives to generic makers to bring generics to the market. The article then discusses the four strategies and their future impacts on drug market. Lastly, to eliminate these impacts, it proposes two legislations to ensure cheap generics be more widely available in order to reduce the healthcare cost.

Copyright Infringement Via Bittorrent Websites; Who’S To Blame?, Stephen M. Collins

Stephen M Collins Jr.

No abstract provided.

Thwack!! Take That, User-Generated Content!: Marvel Enterprises, Inc. V. Ncsoft Corp., Carl M. Szabo

Carl M Szabo

Dear Madam or Sir: As seen in the attached note, I am to make two contributions. First, I address the issue of copyright liability of websites for infringement by the website users. A constant struggle as old as the constitution itself, the issue of copyright protection now makes its way into the virtual world of the internet. While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed could endanger the protection afforded to authors …

Dead On The Vine: Living And Conceptual Art And Vara, Charles Cronin

Charles Cronin

The Visual Artists Rights Act of 1990 (VARA) broadened general copyright protection under U.S. law by granting to artists who have created certain copyrightable physical works of visual art, the moral rights of attribution and integrity. Since the time of VARA’s enactment (and for some time before) many artists have worked with unconventional genres and media to produce art that is not comfortably accommodated among the visual art works contemplated by VARA. An increasing number of recent works of Conceptual and Appropriationist Art raise doubts about fixation and original expression, both of which are required for copyrightability which, in turn, …

Death Of The Revolution: The Legal War On Competitive Broadband Technologies, John F. Blevins

John F. Blevins

In this article, I examine the role that law has played in entrenching incumbents in the communications industry, with a particular focus on broadband services. Earlier this decade, several new “revolutionary” broadband technologies threatened to fundamentally disrupt industry structures. This revolution, however, never arrived. The reason, I argue, is that industry consolidation has helped transform law into a powerful and versatile entrenchment mechanism that has stifled these emerging competitive threats. Simply put, the sheer size superiorities enjoyed by today’s incumbent companies has created new and self-reinforcing opportunities to use law to entrench their market position. My focus, however, is not …

Harmonization Of International Legal Structure For Fostering Professional Services: Lessons From Early U.S. Federal-State Relations, Deth Sao

Deth Sao

In the current global marketplace, liberalization of trade in professional services (“services”) presents one of the biggest challenges and profitable opportunities for the international community. Changes in technology and state privatization polices over the past half century have made services the fastest growing sector in international trade. Despite such a transformation, the potential for further innovation and expansion in the services industries is in jeopardy. In response to public policy and regulatory concerns and political pressures to protect domestic jobs and industries, states have adopted a plethora of state-initiated discriminatory and restrictive policies against trade in services. Because existing international …

Acquiring A Flavor For Trademarks, Amanda E. Compton

Amanda E. Compton

This paper considers the viability of registering “flavor” as a trademark based on the decision in In re N.V. Organon. Nontraditional trademarks have long been accepted in the United States, and the possibility of being able to protect flavor as a trademark is on the horizon. In 2002, N.V. Organon, a global manufacturer of an array of prescription medicines, filed a trademark application to register “an orange flavor” for “pharmaceuticals for human use, namely, antidepressants in quick-dissolving tablets and pills.” The Examining Attorney refused registration on two grounds: (1) the matter failed to function as a trademark; and (2) the …

Integrating The Right Of Publicity With First Amendment And Copyright Preemption Analysis, Thomas F. Cotter

Thomas F. Cotter

Many states confer upon natural persons a “right of publicity” that renders unlawful the unauthorized use of a person’s name or other indicia of identity for purposes of trade. Efforts to reconcile publicity rights with the First Amendment and with principles of copyright preemption, however, have differed radically from one state or circuit to another, as well as within the scholarly community. In this Article, we present a comprehensive framework for integrating both First Amendment and copyright preemption principles into standard publicity analysis. Our framework eliminates much of the incoherence found in contemporary right of publicity case law by adopting …

Copyright After Death, Deven R. Desai

Deven R. Desai

Should copyright extend after death? In the United States, the duration of copyright is the author’s life plus seventy years. Discussions of copyright often treat pre and post death copyright as equal, holding that the entire length of the term faces uniform problems and fulfills uniform goals. Copyright law operates with a hidden assumption: that copyright after death is the same as copyright during life. Numerous debates over copyright’s duration rely on this post-mortem assumption. In this article, Professor Deven Desai argues that this assumption is false and that copyright’s extension after the author’s death is unjustifiable. He explores the …

Why Typefaces Proliferate Without Copyright Protection, Blake Fry

Blake Fry

Classic economic theory predicts that without copyright protection authors and publishers would not have sufficient incentive to invest the time or money needed to produce or distribute new works, and the public would suffer a shortage. Copyrights are an attempt to solve this problem. By granting a monopoly to the author of an expressive work the government gives him the sole right to copy it. If only the author has this right, authors will get a reasonable rate of return, and thus a sufficient incentive to create new works. However, empirical evidence on whether adequate expressive works would be created …

Bad Faith In Cyberspace: Grounding Domain Name Theory In Trademark, Property, And Restitution, Jacqueline Lipton

Jacqueline D Lipton

The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with other’s trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …