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Articles 1 - 30 of 65
Full-Text Articles in Law
Structuring A Market-Oriented Federal Eco-Information Policy, Peter S. Menell
Structuring A Market-Oriented Federal Eco-Information Policy, Peter S. Menell
Peter Menell
No abstract provided.
Sarah Tran's Inspiring Optimism, Peter Menell
Sarah Tran's Inspiring Optimism, Peter S. Menell
Adapting Copyright For The Mashup Generation, Peter S. Menell
Adapting Copyright For The Mashup Generation, Peter S. Menell
Peter Menell
Growing out of the rap and hip hop genres as well as advances in digital editing tools, music mashups have emerged as a defining genre for post-Napster generations. Yet the uncertain contours of copyright liability as well as prohibitive transaction costs have pushed this genre underground, stunting its development, limiting remix artists' commercial channels, depriving sampled artists of fair compensation, and further alienating netizens and new artists from the copyright system. In the real world of transaction costs, subjective legal standards, and market power, no solution to the mashup problem will achieve perfection across all dimensions. The appropriate inquiry is …
Star Athletica’S Fissure In The Intellectual Property Functionality Landscape, Peter S. Menell, Daniel Yablon
Star Athletica’S Fissure In The Intellectual Property Functionality Landscape, Peter S. Menell, Daniel Yablon
Peter Menell
No abstract provided.
Unwinding Sony, Peter S. Menell, David Nimmer
Liability Of Parent Corporations For Hazardous Waste Cleanup And Damages, Peter S. Menell
Liability Of Parent Corporations For Hazardous Waste Cleanup And Damages, Peter S. Menell
Peter Menell
No abstract provided.
Using Fee Shifting To Promote Fair Use And Fair Licensing, Peter S. Menell, Ben Depoorter
Using Fee Shifting To Promote Fair Use And Fair Licensing, Peter S. Menell, Ben Depoorter
Peter Menell
The fair use doctrine seeks to facilitate socially optimal uses of copyrighted material. As a practical matter, however, cumulative creators,such as documentary filmmakers and many contemporary musicians, are often reluctant to rely on the fair use doctrine because of its inherent uncertainty, the potentially harsh remedies for copyright infringement, and the practical inability to obtain effective preclearance rights.Moreover, copyright owners have no obligation under existing law to respond to a cumulative creator's inquiry. Thus, a familiar refrain in professional creative communities is "if in doubt, leave it out." In this Article we propose a novel mechanism that would afford a …
Adapting Copyright For The Mashup Generation, Peter S. Menell
Adapting Copyright For The Mashup Generation, Peter S. Menell
Peter Menell
No abstract provided.
Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, Peter S. Menell
Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, Peter S. Menell
Peter Menell
In crafting the Defend Trade Secrets Act of 2016 (DTSA), Congress went beyond the federalization of state trade secret protection to tackle a broader social justice problem: the misuse of nondisclosure agreements (NDAs) to discourage reporting of illegal activity in a variety of areas. The past few decades have witnessed devastating government contracting abuses, regulatory violations, and deceptive financial schemes that have hurt the public and cost taxpayers and investors billions of dollars. Congress recognized that immunizing whistleblowers from the cost and risk of trade secret liability for providing information to the Government could spur law enforcement. But could this …
Economic Implications Of State Sovereign Immunity From Infringement Of Federal Intellectual Property Rights, Peter S. Menell
Economic Implications Of State Sovereign Immunity From Infringement Of Federal Intellectual Property Rights, Peter S. Menell
Peter Menell
No abstract provided.
Copyright's Staple Article Of Commerce Doctrine: Patently Misguided, David Nimmer, Peter S. Menell
Copyright's Staple Article Of Commerce Doctrine: Patently Misguided, David Nimmer, Peter S. Menell
Peter Menell
No abstract provided.
Regulating Spyware: The Limitations Of State Laboratories And The Case For Federal Preemption Of State Unfair Competition Laws, Peter S. Menell
Regulating Spyware: The Limitations Of State Laboratories And The Case For Federal Preemption Of State Unfair Competition Laws, Peter S. Menell
Peter Menell
Drawing on Justice Brandeis's oft-cited observation that states can serve as 'laboratories" of policy experimentation, this Article develops a framework for assessing the allocation of governance authority for regulating Internet activities. In particular, it focuses on whether states should be free to experiment with regulatory approaches or whether the federal government should have principal, if not exclusive (preemptive), regulatory authority over Internet-related activities. Using recent efforts to regulate spyware and adware as a case study, the analysis shows that the lack of harmonization of and uncertainty surrounding, state unfair competition law produces costly, confusing, multi-district litigation and pushes enterprises to …
A Method For Reforming The Patent System, Peter Menell
A Method For Reforming The Patent System, Peter Menell
Peter Menell
The principal recent studies of patent reform (NAS (2004), FTC (2003), Jaffe and Lerner (2004)) contend that a uniform system of patent protection must (or should) be available for "anything under the sun made by man" based upon one or more of the following premises: (1) the Patent Act requires this breadth and uniformity of treatment; (2) "discriminating" against any particular field of "technology" would be undesirable; (3) discrimination among technologies would present insurmountable boundary problems and could easily be circumvented through clever patent drafting; and (4) interest group politics stand in the way of excluding any subject matter classes …
A Note On Private Versus Social Incentives To Sue In A Costly Legal System, Peter Menell
A Note On Private Versus Social Incentives To Sue In A Costly Legal System, Peter Menell
Peter Menell
No abstract provided.
Informal Deference: A Historical, Empirical, And Normative Analysis Of Patent Claim Construction , J. Jonas Anderson, Peter S. Menell
Informal Deference: A Historical, Empirical, And Normative Analysis Of Patent Claim Construction , J. Jonas Anderson, Peter S. Menell
Peter Menell
The Federal Circuit has been the target of a flurry of criticism regarding its claim construction jurisprudence. District judges, members of the bar, academics, and even the court's own judges have been highly critical of the court's rate of reversal of claim construction appeals, which peaked above 40%. Partially in response to the critics, the Federal Circuit undertook to reassess its claim construction jurisprudence in the Phillips case in 2005. The empirical and theoretical studies that have emerged since Phillips suggest that little has changed: the Federal Circuit's high reversal rate persists and the court's procedures remain unaltered. This Article …
Regulating Spyware: The Limitations Of State Laboratories And The Case For Federal Preemption Of State Unfair Competition Laws, Peter S. Menell
Regulating Spyware: The Limitations Of State Laboratories And The Case For Federal Preemption Of State Unfair Competition Laws, Peter S. Menell
Peter Menell
No abstract provided.
The Challenges Of Reforming Intellectual Property Protection For Computer Software, Peter S. Menell
The Challenges Of Reforming Intellectual Property Protection For Computer Software, Peter S. Menell
Peter Menell
No abstract provided.
2014: Brand Totalitarianism, Peter S. Menell
Foreword, Jeff Brax, Peter S. Menell
Foreword, Jeff Brax, Peter S. Menell
Peter Menell
Introduces a series of articles on court cases about environmental and natural resources law.
Forty Years Of Wondering In The Wilderness And No Closer To The Promised Land: Bilski's Superficial Textualism And The Missed Opportunity To Return Patent Law To Its Technology Mooring, Peter S. Menell
Peter Menell
No abstract provided.
Institutional Fantasylands: From Scientific Management To Free Market Environmentalism, Peter S. Menell
Institutional Fantasylands: From Scientific Management To Free Market Environmentalism, Peter S. Menell
Peter Menell
Exposes the utopian parallels between scientific management and free market environmentalism by exploring the limitations of an analytical framework. Outcomes of market-like processes; Expression of preferences through democratic processes; Failure to consider the endogeneity of preferences; Model of human nature; Endowment effects associated with allocation of ownership.
Legal Realism In Action: Indirect Copyright Liability's Continuing Tort Framework And Sony's De Facto Demise, Peter S. Menell, David Nimmer
Legal Realism In Action: Indirect Copyright Liability's Continuing Tort Framework And Sony's De Facto Demise, Peter S. Menell, David Nimmer
Peter Menell
No abstract provided.
Structuring A Market-Oriented Federal Eco-Information Policy, Peter S. Menell
Structuring A Market-Oriented Federal Eco-Information Policy, Peter S. Menell
Peter Menell
No abstract provided.
From De Novo Review To Informal Deference: An Historical, Empirical, And Normative Analysis Of The Standard Of Appellate Review For Patent Claim Construction, Jonas Anderson, Peter Menell
From De Novo Review To Informal Deference: An Historical, Empirical, And Normative Analysis Of The Standard Of Appellate Review For Patent Claim Construction, Jonas Anderson, Peter Menell
Peter Menell
Patent scope plays a central role in the operation of the patent system, making patent claim construction a critical aspect of just about every patent litigation. With the resurgence of patent jury trials in the 1980s, the allocation of responsibility for interpreting patent claims between trial judge and jury emerged as a salient issue. While the Supreme Court’s Markman decision usefully removed claim construction from the black box of jury deliberations notwithstanding its "mongrel" mixed fact/law character, the Federal Circuit’s adherence to the view that claim construction is a pure question of law subject to de novo appellate review produced …
Economic Implications Of State Sovereign Immunity From Infringement Of Federal Intellectual Property Rights, Peter S. Menell
Economic Implications Of State Sovereign Immunity From Infringement Of Federal Intellectual Property Rights, Peter S. Menell
Peter Menell
No abstract provided.
Preexisting Confusion In Copyright's Work-For-Hire Doctrine, David Nimmer, Peter S. Menell, Diane Mcgimsey
Preexisting Confusion In Copyright's Work-For-Hire Doctrine, David Nimmer, Peter S. Menell, Diane Mcgimsey
Peter Menell
No abstract provided.
The Property Rights Movement's Embrace Of Intellectual Property: True Love Or Doomed Relationship, Peter S. Menell
The Property Rights Movement's Embrace Of Intellectual Property: True Love Or Doomed Relationship, Peter S. Menell
Peter Menell
No abstract provided.
Indirect Copyright Liability And Technology Innovation, Peter S. Menell
Indirect Copyright Liability And Technology Innovation, Peter S. Menell
Peter Menell
No abstract provided.
Reunifying Property, Peter S. Menell, John P. Dwyer
Reunifying Property, Peter S. Menell, John P. Dwyer
Peter Menell
No abstract provided.