Law Commons^™

Reinterpreting Repeat Infringement In The Digital Millennium Copyright Act, Hunter Mcghee

Vanderbilt Journal of Entertainment & Technology Law

In 1998, Congress passed the Digital Millennium Copyright Act, which aimed to balance the growth of the internet with the enforcement interests of copyright holders. In exchange for immunity from third-party infringement, the DMCA imposes certain conditions on internet and online service providers. Unfortunately, the law continues to contain many ambiguities in its statutory scheme, not least of which is the requirement that service providers maintain a “repeat infringer policy” to remove individuals that repeatedly infringe intellectual property rights. In response to a review of the Copyright Act conducted by the House Judiciary Committee, the US Copyright Office authored a …

A Compulsory Solution To The Machine Problem: Recognizing Artificial Intelligence As Inventors In Patent Law, Cole G. Merritt

Vanderbilt Journal of Entertainment & Technology Law

Artificial Intelligence (AI) is already disrupting and will likely continue to disrupt many industries. Despite the role AI already plays, AI systems are becoming increasingly powerful. Ultimately, these systems may become a powerful tool that can lead to the discovery of important inventions or significantly reduce the time required to discover these inventions. Even now, AI systems are independently inventing. However, the resulting AI-generated inventions are unable to receive patent protection under current US patent law. This unpatentability may lead to inefficient results and ineffectively serves the goals of patent law.

To embrace the development and power of AI, Congress …

The Data Trust Solution To Data Sharing Problems, Kimberly A. Houser, John W. Bagby

Vanderbilt Journal of Entertainment & Technology Law

A small number of large companies hold most of the world’s data. Once in the hands of these companies, data subjects have little control over the use and sharing of their data. Additionally, this data is not generally available to small and medium enterprises or organizations who seek to use it for social good. A number of solutions have been proposed to limit Big Tech “power,” including antitrust actions and stricter privacy laws, but these measures are not likely to address both the oversharing and under-sharing of personal data. Although the data trust concept is being actively explored in the …

Copyright Co-Ownership In Uncertain Times: How Security Interests Can Save The Day, Evie Whiting, Ashleigh Stanley

Vanderbilt Journal of Entertainment & Technology Law

Films and television series are increasingly being created undera co-production model, making copyright co-ownership a common occurrence in the world of Hollywood content creation. So long as each co-owner’s rights are pre-negotiated and specifically delineated in their contracts, the co-owners can rest assured that their rights to the project and any potential derivative works are safe. Or can they?

In the modern entertainment landscape, where tentpole programming and related spinoffs and derivatives are the gold standard of content creation, the proper protection of co-owned copyrights is more important than ever. But tenuous financial outlooks pose a looming, existential threat to …

A Modern Reconceptualization Of Copyrights As Public Rights, Matthew L. Pangle

Vanderbilt Journal of Entertainment & Technology Law

Copyright law is at a crossroads. In the wake of Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, the patent, copyright, and intellectual property regimes as a whole, are primed for a modern reconceptualization. At the heart of this reconceptualization is the distinction between public rights, those vindicated by public offices for the public good, and private rights, those vindicated by private citizens for their exclusive government-granted monopolies. Thanks to Oil States, patent rights now exist in two separate bundles-—a public bundle including the patent grant itself and a private bundle consisting of a patent owner’s exclusivity rights. …

Technological Self-Sufficiency And The Role Of Novelty Traps, Rochelle C. Dreyfuss, Daniel Benoliel

Vanderbilt Journal of Entertainment & Technology Law

The COVID pandemic has demonstrated the tragic consequences of technological dependency. Unable to manufacture vaccines for themselves, developing countries must rely on obtaining supplies from other nations. While strong arguments have been made to waive international obligations under the TRIPS Agreement to permit these countries to freely use COVID-related patented inventions, it is not clear that this move would produce sufficient vaccines to meet global demand. Considerable scholarship has been devoted to the question of how to help these countries reach the technological frontier and become technologically independent. In this Article, we identify a novel source of their problem: a …

Improvising Intellectual Property In Saigon, David A. Bergan

Vanderbilt Journal of Entertainment & Technology Law

How does intellectual property become part of the structure of social practice? The traditional answers are enforcement, education, and incentivized self-interest. This Article challenges that understanding by examining the social field of young engineers in Vietnam. In Ho Chi Minh City, Vietnam, intellectual production is not only about producing the legal commodity we call intellectual property. For many young engineers working with multinational companies, it is not about producing a product at all. It is about improving their position in society. Relying on over a year of qualitative, ethnographic fieldwork from 2012 to 2014, this Article develops a critique of …

Weeding Out Wolves: Protecting Speakers And Punishing Pirates In Unmasking Analyses, Nathaniel Plemons

Vanderbilt Journal of Entertainment & Technology Law

This Note examines the prevalence of anonymous internet speakers, the practical and legal issues that courts confront when balancing the rights of anonymous internet speakers with those of plaintiffs seeking to unmask them, and the serious dangers courts expose speakers to if wrongfully unmasked. Part I argues that internet speech merits the same First Amendment protections as traditional speech, notes the unique benefits of anonymous internet speech, examines the practical difficulties faced by courts and plaintiffs in unmasking anonymous speakers, and details the immense dangers these speakers face if wrongfully exposed. Part II analyzes the most common approaches courts use …

Reexamining Eli Lilly V. Canada: A Human Rights Approach To Investor-State Disputes, Cynthia M. Ho

Vanderbilt Journal of Entertainment & Technology Law

This Article provides valuable insight to the broader discussion of reforming investor-state disputes. Many have noted that the system is in a crisis due to a lack of democratic accountability and inconsistent decisions, which create a chilling effect on legitimate domestic law and policy. Despite substantial discussion in recent years concerning how to reform investor-state disputes, there is only limited discussion concerning the extent to which such disputes challenge domestic intellectual property (IP) limits, as well as global IP norms. Moreover, even among those who recognize the challenge to IP limits, the relevance of human rights is generally not addressed. …

The Limits Of International Copyright Exceptions For Developing Countries, Ruth L. Okediji

Vanderbilt Journal of Entertainment & Technology Law

The relationship between intellectual property (IP) protection and economic development is not better understood today than it was five decades ago at the height of the independence era in the Global South. Development indicators in many developing and least-developed countries reflect poorly in precisely the areas that are most closely associated with copyright law's objectives, such as promoting democratic governance, facilitating a robust marketplace of ideas, fostering domestic markets in cultural goods, and improving access to knowledge. Moreover, evidence suggests that copyright law has not been critical to the business models of the creative sectors in leading emerging markets. These …

"Ask Me No Questions": The Struggle For Disclosure Of Cultural And Genetic Resource Utilization In Design, Margo A. Bagley

Vanderbilt Journal of Entertainment & Technology Law

New issues relating to the intersection of design protection and cultural and genetic resource utilization are arising from the confluence of an increased interest in design protection, the sustained allure of exotic cultural expressions, and novel uses of biological and genetic resources in crafting the appearance of articles protected by industrial design rights. As awareness of the many ways in which cultural and genetic resource use and misappropriation can occur is evolving, some developing countries have begun exploring the appropriateness of--and in some cases even instituting--a requirement that a designer disclose the origin of traditional cultural expressions, traditional knowledge, and …

Reconceptualizing Isds: When Is Ip An Investment And How Much Can States Regulate It, Rochelle Dreyfuss, Susy Frankel

Vanderbilt Journal of Entertainment & Technology Law

Victories by states in two investor-state dispute settlements (ISDS), one involving Uruguay's regulation of tobacco trademarks and the other challenging a doctrine of Canadian patent law, have suggested to some that ISDS is not a threat to state regulation involving intellectual property rights. In this Article, we dispute that notion. We show how these awards open pathways for future disputes and we argue that neither the resolution of these cases nor changes in more recent investment agreements meaningfully alter the threat of ISDS and the chill it imposes on legitimate regulatory activity. We suggest that there would be fewer disputes …

Socially Responsible Corporate Ip, J. Janewa Oseitutu

Vanderbilt Journal of Entertainment & Technology Law

Many companies practice corporate social responsibility (CSR) as part of their branding and public relations efforts. As part of their CSR strategies, some companies adopt voluntary codes of conduct in an effort to respect human rights. This Article contemplates the application of CSR principles to trade-related intellectual property (IP). In theory, patent and copyright laws promote progress and innovation, which is why IP rights are beneficial for both IP owners and for the public. Trademark rights encourage businesses to maintain certain standards and allow consumers to make more efficient choices. Though IP rights are often discussed in relation to the …

How Photographs Infringe, Terry S. Kogan

Vanderbilt Journal of Entertainment & Technology Law

Courts and commentators have lavished attention on the question of what makes a photograph original and entitled to copyright protection. Far less attention has been devoted to the issue of how photographs infringe. This is the first Article to systematically explore the different ways in which a photograph can steal intellectual property. Photographs can infringe in two ways: by replication and by imitation. A photograph infringes by replication when, without permission, a photographer points her camera directly at a copyright-protected work--a sculpture, a painting, another photograph--and clicks the shutter. A photograph can also infringe by imitation. In such cases, the …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Osei-Tutu

Vanderbilt Journal of Entertainment & Technology Law

This Article compares the natural rights property framework with the international human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition but appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Yet, advocates of a human rights approach to intellectual property contend that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

Promoting Access Over Ownership: Realigning Antitrust And Intellectual Property Law To Usher In An Era Of Collaborative Consumption, Adrian Kuenzler

Vanderbilt Journal of Entertainment & Technology Law

Following the US Supreme Court's endorsement of the promotion of consumer welfare as the single goal of antitrust and intellectual property laws, many courts have reasserted their commitment to the market access doctrine for antitrust and intellectual property law liability. These courts have rejected the Court's submission in GTE Sylvania to adhere to a strict output/profitability test concentrating predominantly on the positive and negative welfare effects regarding allegedly infringing conduct. This Article examines several important antitrust and intellectual property law decisions and locates within them a common flaw to express an intelligible, distinct doctrinal function for giving precedence to market …

Government As Owner Of Intellectual Property? Considerations For Public Welfare In The Era Of Big Data, Ruth L. Okediji

Vanderbilt Journal of Entertainment & Technology Law

Open government data policies have become a significant part of innovation strategies in many countries, allowing access, use and re-use of government data to improve government transparency, foster civic engagement, and expand opportunities for the creation of new products and services. Rarely, however, do open data policies address intellectual property rights that may arise from free access to government data. Ownership of knowledge goods created from big data is governed by the default rules of intellectual property laws which typically vest ownership in the creator/inventor. By allowing, and in some cases actively encouraging, private capture of the downstream goods created …

Over ©S: Dilemmas In Establishing Jurisdiction Over Foreign Sovereigns In Us Courts For Intellectual Property Infringement, Katherine Dutcher

Vanderbilt Journal of Entertainment & Technology Law

When a foreign state infringes a US-held intellectual property right abroad, it is unclear to what extent the Foreign Sovereign Immunities Act of 1976 (FSIA) bars suit in US courts. The FSIA's already complex commercial activity exception, which governs such actions, was further obfuscated by the Supreme Court's decision in Republic of Argentina v. Weltover, which held that "substantiality" and "foreseeability" could not be used to determine whether a foreign sovereign's conduct had a "direct effect" in the United States, thus warranting jurisdiction in a US court. In the context of IP infringement, where harms may be abstract and unquantifiable, …

Patent Litigation In China: Protecting Rights Or The Local Economy?, Brian J. Love, Christian Helmers, Markus Eberhardt

Vanderbilt Journal of Entertainment & Technology Law

Though it lacked a patent system until 1985, China is now the world leader in patent filings and litigation. Despite the meteoric rise of the Chinese patent system, many in the West believe that it acts primarily to facilitate local protectionism rather than innovation. Recent high-profile patent suits filed by relatively unknown Chinese firms against high-profile foreign tech companies, like Apple, Samsung, and Dell, have only added fuel to the fire. Surprisingly, given how commonplace assertions of Chinese protectionism are, little empirical evidence exists to support them. This Article contributes to the literature on this topic by analyzing five years …

Of Fences And Definite Patent Boundaries, Deepa Varadarajan

Vanderbilt Journal of Entertainment & Technology Law

Patent claims are supposed to mark the boundaries of a patent clearly so that competitors and follow-on innovators can avoid infringement. But commentators routinely lament the failure of patent claims to adequately perform this notice function. In numerous calls for patent reform, courts and scholars have contrasted the indeterminacy of patent claims with the clarity of real property boundaries. The Supreme Court recently echoed this sentiment in "Nautilus v. Biosig Instruments." In "Nautilus," the Court heightened the patent requirement of claim definiteness and reversed Federal Circuit precedent, which had allowed many ambiguous claims to survive invalidity challenges. This Article analyzes …

Should All Drugs Be Patentable?: A Comparative Perspective, Cynthia M. Ho

Vanderbilt Journal of Entertainment & Technology Law

Although there has been substantial discussion of the proper scope of patentable subject matter in recent years, drugs have been overlooked. This Article begins to address that gap with a comparative perspective. In particular, this Article considers what is permissible under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as how India and Canada have utilized TRIPS flexibilities in different ways to properly reward developers of valuable new drugs, while also considering the social harm of higher prices beyond an initial patent term on drugs.

This Article brings valuable insight into this area at a critical …

The Lisbon Agreement: Why The United States Should Stop Fighting The Geneva Act, Danielle Dudding

Vanderbilt Journal of Entertainment & Technology Law

In May 2015, members of the World Intellectual Property Organization (WIPO) held a Diplomatic Conference that resulted in the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications. The Act modified the Lisbon Agreement (originally created in 1958), extending its previous protection of appellations of origin to geographical indications as well. The United States, which remains a non-party to the Lisbon Agreement, has been adamantly against the expansion of the Agreement to geographical indications. This Note explores the issues surrounding the Geneva Act, the state of the law and international agreements leading up to the Act, …

Developments In Synthetic Biology Are Altering The Ip Imperatives Of Biotechnology, Christopher M. Holman

Vanderbilt Journal of Entertainment & Technology Law

While the accomplishments of the biotechnology industry have been substantial, recent technological advances promise to dramatically increase the power and utility of the discipline over the coming years. The term "synthetic biology" has been coined to describe the application of these powerful new tools to the engineering of synthetic genetic sequences and organisms. In essence, synthetic biology represents the next iteration in the ongoing evolution of biotechnology, and hopes run high that in time, the fruits of synthetic biology will dwarf the past successes of conventional biotechnology. There is, however, some concern that the current patent-centric approach to Intellectual Property …

Appropriation Without Representation? The Limited Role Of Indigenous Groups In Wipo's Intergovernmental Committee On Intellectual Property And Genetic Resources, Traditional Knowledge, And Folklore, Veronica Gordon

Vanderbilt Journal of Entertainment & Technology Law

The World Intellectual Property Organization's (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) is currently engaged in text-based negotiations to develop an international legal instrument, or set of instruments, that will effectively protect traditional knowledge, traditional cultural expressions, and genetic resources. Yet, the people who will arguably be most affected by the ultimate instrument(s)--indigenous peoples and local communities--are not able to fully participate in these negotiations. Instead, WIPO deems them "Observers." They cannot formally present proposals, amendments, or motions, and cannot vote at IGC sessions. Thus, their limited influence implicates questions of equity, sovereignty, …

How To Explain The "Implicit Exceptions" To Patent-Eligible Subject Matter, Wesley D. Markham

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court has as of late taken renewed interest in what inventions or discoveries are deserving of entry into the patent system. Section 101 of Title 35 opens the door to "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." Certain things--now referenced by the Court as "laws of nature, natural phenomena, and abstract ideas"--necessarily fall outside the statute's scope. The question is, why? Not why as a matter of policy, but why as a matter of law. The Court has not yet picked (or at …

Once More Unto The Breach, Dear Friends: Broadway Dramatists, Hollywood Producers, And The Challenge Of Conflicting Copyright Norms, Carol M. Kaplan

Vanderbilt Journal of Entertainment & Technology Law

In recent decades, studios that own film and television properties have developed business models that exploit the copyrights in those materials in every known market and in all currently conceivable forms of entertainment and merchandising. For the most part, uniform laws and parallel industry cultures permit smooth integration across formats. But theater is different. The work-made-for-hire provisions that allow corporations to function as the authors of the works they contract to create do not easily align with the culture and standard contract provisions of live theater. Conflicts arise when material that begins as a Hollywood property tries to make the …

Wipo And The American Constitution: Thoughts On A New Treaty Relating To Actors And Musicians, Hannibal Travis Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

The World Intellectual Property Organization (WIPO) is seeking to reform U.S. copyright law. The WIPO Treaty on Audiovisual Performances (AV Treaty) would restrict the communication of actors' and musicians' performances without authorization. The treaty would probably make it illegal to display or show clips of performances, or make a movie or YouTube video by transforming or adapting other actors' or musicians' performances, particularly when the original credits and copyright information are dropped. This Article analyzes key provisions of the AV Treaty to ascertain whether they change US law, or merely globalize existing US doctrines. This Article describes the threat posed …

Tax Incentives For Innovation In A Modern Ip Ecosystem, Joshua Chao

Vanderbilt Journal of Entertainment & Technology Law

Technological innovation is a long-recognized catalyst for economic growth in the United States, and its promotion is an important feature of national economic policy, as evidenced by the presence of various tax incentives for innovation in the US Internal Revenue Code. Tax incentives are an important means by which governments can deliver subsidies to promote such innovation. To be effective, however, any system of tax incentives must be tailored for current economic conditions and competitive landscapes. In the current ecosystem of innovation in the United States, this means that, at the very least, the incentives for innovation in the US …

One Work, Three Infringers: Calculating The Correct Number Of Separate Awards Of Statutory Damages In A Copyright Infringement Action, Timothy L. Warnock

Vanderbilt Journal of Entertainment & Technology Law

Columbia Pictures provides the most persuasive analysis of the correct number of separate awards of statutory damages available to a plaintiff. Lime Group recognized that the question was a particularly close one, and the court erred in reaching the opposite result from Columbia Pictures. The Lime Group analysis is based on a fundamentally flawed earlier decision and relies, in the end, on an approach as likely to reward infringers rather than defend the rights of copyright holders: determining whether the potential result in any given case is absurd. Regarding the hypothetical case provided at the beginning of this Essay, Warren …

Digital Copyright And Confuzzling Rhetoric, Peter K. Yu

Vanderbilt Journal of Entertainment & Technology Law

For more than a decade, policymakers, industry representatives, consumer advocates, civil libertarians, academic commentators, and user communities have advanced a wide array of arguments for or against online file sharing and restrictive copyright standards. This Article begins by introducing two short stories to illustrate the rhetorical and analytical challenges in the digital copyright debate. It then examines eight unpersuasive arguments advanced by both sides of the debate--four from the industry and four from its opponents. The Article concludes by outlining six different strategies to help the industry develop more convincing proposals for digital copyright reform.