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Full-Text Articles in Law
The Insurability Of Claims For Restitution, Christopher French
The Insurability Of Claims For Restitution, Christopher French
Journal Articles
Does and should a wrongdoer’s liability insurance cover an aggrieved party’s claim for restitution (e.g., a claim for the disgorgement of ill-gotten gains)? This article answers those questions. It does so by first answering the question of whether claims for restitution are covered under the terms of liability insurance policies. Then, after concluding that they are, it addresses the question of whether claims for restitution should be insurable as a matter of public policy and insurance law theory. There are long-standing legal and equitable principles that, on the one hand, dictate that a wrongdoer should not be allowed to benefit …
Causing Infringement, Mark Bartholomew, Patrick F. Mcardle
Causing Infringement, Mark Bartholomew, Patrick F. Mcardle
Journal Articles
Recent appellate decisions reveal a chaotic contributory infringement doctrine that offers little direction to entrepreneurs trying to balance digital innovation with legal strictures. Aware of the problem, both the Supreme Court and legal scholars urge a modeling of contributory infringement on common law tort rules. But common law tort is an enormous subject. Without further instruction, the subject area is too vast and contradictory to offer a realistic template for reform. Even when the narrower body of tort law for secondary actors is consulted, there is still too much variation in the existing precedent to provide the necessary guidance. Instead …
Contributory Infringers And Good Samaritans, Mark Bartholomew
Contributory Infringers And Good Samaritans, Mark Bartholomew
Journal Articles
The introduction of online technologies has put increased pressure on the doctrine of contributory infringement as intellectual property rights holders switch their attention from direct infringers to Internet intermediaries. The Supreme Court has instructed lower courts to evaluate contributory infringement in light of traditional tort law. The common law of aiding and abetting, however, is so inconsistent as to offer no real guidance. A better approach lies in a separate but related area of tort doctrine. In a limited number of circumstances, tort law recognizes a duty to protect third parties from the actions of others. Like aiding and abetting, …
Cops, Robbers, And Search Engines: The Questionable Role Of Criminal Law In Contributory Infringement Doctrine, Mark Bartholomew
Cops, Robbers, And Search Engines: The Questionable Role Of Criminal Law In Contributory Infringement Doctrine, Mark Bartholomew
Journal Articles
Online technologies have created a new litigation locus for intellectual property rights holders, one that targets intermediaries, not direct infringers. This unprecedented litigation strategy has put sudden pressure on the courts to evaluate the liability of indirect infringers. Without a developed body of precedent at their disposal, judges have resorted to analogies from the criminal law of accomplice liability to set the boundaries of contributory infringement. Does it make sense for intellectual property regulation to depend on the same principles that animate criminal law? This Article maintains that it would be a mistake to remake contributory infringement law in criminal …
Advertising And The Transformation Of Trademark Law, Mark Bartholomew
Advertising And The Transformation Of Trademark Law, Mark Bartholomew
Journal Articles
Despite the presence of a vigorous debate over the proper scope of trademark protection, scholars have largely ignored study of trademark law's origins. It would be a mistake, however, to ignore the history behind trademark law. Scrutiny of the formative era in American trademark law yields two important conclusions. First, courts granted robust legal protection to trademark holders in the early twentieth century because they accepted the benign view of advertising presented to them by advertisers. As advertising became linked to cultural progress and social cohesion, courts adopted doctrinal revisions to protect advertising's value that remain embedded in modern trademark …
The Secret Life Of Legal Doctrine: The Divergent Evolution Of Secondary Liability In Trademark And Copyright Law, Mark Bartholomew, John Tehranian
The Secret Life Of Legal Doctrine: The Divergent Evolution Of Secondary Liability In Trademark And Copyright Law, Mark Bartholomew, John Tehranian
Journal Articles
The recent explosion in intellectual property litigation has witnessed increasing recourse to secondary liability theories. The courts have responded favorably to plaintiffs by enunciating substantial reinterpretations of extant principles, thereby precipitating a veritable secondary liability revolution. Numerous commentators have bemoaned this trend, contending that judicial recasting of liability rules expands intellectual property rights beyond their intended scope, thereby resulting in an overprotective regime that stifles innovation. Yet one of the most striking aspects of the secondary liability revolution has been all but ignored in the literature: While the courts have broadened the scope of secondary liability principles with respect to …