Law Commons^™

Protection Of Traditional Knowledge, Srividhya Ragavan

Faculty Scholarship

Knowledge has been the most coveted possession of mankind since the industrial revolution. The industrial boom after the World Wars has highlighted the importance of the so-called intellectual knowledge. Recently, the importance of knowledge that has been in the public domain (and, therefore, accessible) has come into question. The pattern of evolution of society, has been marked by a process by which the societies in developed countries have moved towards a more technological orientation. Consequentially, some traditional knowledge, including traditional practices, has been left behind and newer practices that are better, or at least considered better, are being used. Knowledge …

Piracy, Prejudice, And Perspectives: An Attempt To Use Shakespeare To Reconfigure The U.S.-China Intellectual Property Debate, Peter K. Yu

Faculty Scholarship

Since the mid-1980s, the U.S.-China intellectual property conflict has entered into the public debate. It was frequently debated in Congress and was widely covered by the mass media. Despite the importance of this issue, the debate thus far has been one-sided, focusing primarily on the unfair competition aspect. While there are undeniably some greedy Chinese who are eager to free ride on the creative efforts of Western authors and inventors, greed alone cannot explain the century-old U.S.-China intellectual property conflict. To understand the roots of this conflict, one must focus on the significant political, social, economic and cultural differences between …

The Marriage Of Intellectual Property And Insurance Law: An Introduction, Leo P. Martinez

Faculty Scholarship

No abstract provided.

Intent To Use: A Failed Experiment?, Amy B. Cohen

Faculty Scholarship

When Congress enacted the Trademark Law Revision Act of 1988 ("TLRA"), it made the first truly radical change in trademark law since the passage of the Lanham Act in 1946. By adding Section 1(b) to the Lanham Act allowing applications for federal trademark registration to be based on an intent to use the mark, Congress for the first time provided a way to apply for federal trademark registration before actual use of a trademark. Congress made this change to bring United States law into closer conformity with the practice elsewhere in the world where use is not a prerequisite to …

Preserving The Public Trust In State-Owned Intellectual Property: A Recommendation For Legislative Action, Sharon Sandeen

Faculty Scholarship

Whether a state chooses to dedicate its intellectual property to the public domain or derive revenue from the licensing of its rights, absent express authority on the subject there is uncertainty. State employees who are aware of the existence of state-owned intellectual property are not certain how it should be managed or if they are authorized to expend state resources to pursue infringement claims. Individuals and entities who wish to use state-owned intellectual property do not know how to obtain permission for such use and without permission they cannot be certain that they will not be sued for infringement. Without …

State Accountability For Violations Of Intellectual Property Rights: How To “Fix” Florida Prepaid (And How Not To), Ernest A. Young, Mitchell N. Berman, R. Anthony Reese

Faculty Scholarship

In its Florida Prepaid and College Savings Bank decisions of two terms ago, the Supreme Court raised significant barriers to Congress's ability to subject the states to damages liability in federal intellectual property suits. These decisions provoked extensive academic commentary and have also sparked efforts in Congress and at the U.S. Patent and Trademark Office to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. This article explores how such legislation might best be shaped in order to withstand constitutional challenge.

Satisfactory treatment of the issue requires examination of a …

Designing Non-National Systems: The Case Of The Uniform Domain Name Dispute Resolution Policy, Laurence R. Helfer, Graeme B. Dinwoodie

Faculty Scholarship

The article critically assesses the Uniform Domain Name Dispute Resolution Policy (UDRP) as a potential model for solving the immense legal challenges presented by transborder activity. Inaugurated in late 1999 by the Internet Corporation for Assigned Names and Numbers (ICANN), the UDRP creates a fast, inexpensive online mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. At present, the UDRP applies only to a narrow segment of disputes between trademark owners and domain name registrants. But the UDRP has been heralded by …

Toward Supranational Copyright Law? The Wto Panel Decision And The "Three-Step Test" For Copyright Exceptions, Jane C. Ginsburg

Faculty Scholarship

A dispute resolution panel of the World Trade Organization in June 2000 held the United States in contravention of its obligation under art. 13 of the TRIPs accord to "confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." In the dispute resolution proceeding, initiated by the European Union at the behest of the Irish performing rights organization, the contested exception, enacted in the 1998 "Digital Millennium Copyright Act," exempted a broad range of retail and …

International Dispute Settlement At The Trademark-Domain Name Interface, Laurence R. Helfer

Faculty Scholarship

This essay identifies some of the emerging legal issues relating to the Uniform Domain Name Dispute Resolution Policy ("UDRP"), a new anational online dispute settlement system established by a private, non-profit corporation, the Internet Corporation for Assigned Names and Numbers in late 1999.

The UDRP creates a fast and inexpensive mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. The UDRP is worthy of serious study for at least two reasons. First and foremost, the process by which the UDRP was created, …

What The Future Holds: Policy Choices In A Global Marketplace, Maureen A. O'Rourke

Faculty Scholarship

This essay's title is a misnomer. No one knows "What the Future Holds" in the global marketplace. We can, however, make some educated guesses about the issues that will assume particular importance in the next year or so. Thus, the essay might be more accurately titled, "What May or May Not Be the Important Issues in Internet Commerce in the Next Year or So'"-less catchy, admittedly, but closer to the truth.

The Dynamic Analytics Of Property Law, Michael A. Heller

Faculty Scholarship

The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership. This essay suggests two approaches – creating new ideal types and synthesizing existing ones – that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.

Have Moral Rights Come Of (Digital) Age In The United States?, Jane C. Ginsburg

Faculty Scholarship

More than any other contemporary American legal scholar, Professor Merryman has drawn attention to the moral rights claims of artists. Anything written in the field in the United States since 1976 owes inspiration to The Refrigerator of Bernard Buffet ("The Refrigerator") Professor Merryman's seminal article in the 1976 Hastings Law Journal. I feel this particularly acutely since I became interested in the issue as a law student, in 1978. It looked like a hopeful time, for Professor Merryman had shown the way, and the Second Circuit, in the then-recently decided Monty Python case, seemed to be paying heed. The …

Commentary On Economic And Ethical Reasons For Protecting Data, Wendy J. Gordon

Faculty Scholarship

Like Jane Ginsburg, I would like to drop back a bit, to talk about more general principles. Essentially, both of our primary speakers focused on a distinction between property and non-property modes of protecting data. I would like to highlight the economic and ethical reasons for maintaining that distinction.

Can Copyright Become User-Friendly? Review: Jessica Litman, Digital Copyright (2001), Jane C. Ginsburg

Faculty Scholarship

In this review, I will first briefly address Professor Litman's evocation of the copyright law-making process. Her discussion of legislative history presents a valuable and compelling account, especially for those unfamiliar with copyright law. Nonetheless, it is not a principal focus of this review. For those who read the Columbia Journal of Law & the Arts (many of whom may well be copyright lawyers), the most provocative portions of the book, to which I will devote most attention, are likely to be the chapters in which Professor Litman (a) reviews and challenges various metaphors for copyright policy (Chapter 5, "Choosing …

Berne Without Borders: Geographic Indiscretion And Digital Communications, Jane C. Ginsburg

Faculty Scholarship

This lecture examines the role of borders in the Berne Convention at the time of the treaty's first passage in 1886, and today. The later 19th century was an era of increasing commerce and communication among countries whose domestic production and reproduction of works of authorship had vastly increased, thanks in part to new technologies, such as photography, lithography, and high-speed printing. But at that time, the frontiers between nations often frustrated authors' hopes for control over, or at least compensation for, the international exploitation of their works. Authors' rights ceased at their national boundaries; the world beyond foreboded not …

Information Technology And Non-Legal Sanctions In Financing Transactions, Ronald J. Mann

Faculty Scholarship

This Essay investigates the effect of advances in information technology on the private institutions that businesses use to resolve information asymmetries in financing transactions. The first part of the Essay discusses how information technology can permit direct verification of the information, obviating the problem entirely; the Essay discusses the example of the substitution of the debit card for the check, which provides an immediate payment that obviates the need for the merchant to consider whether payment will be forthcoming when the check is presented to the bank on which it is drawn.

The second part of the Essay discusses how …

Copyright And Control Over New Technologies Of Dissemination, Jane C. Ginsburg

Faculty Scholarship

The relationship of copyright to new technologies that exploit copyrighted works is often perceived to pit copyright against progress. Historically, when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement. However, when owners seek instead to participate in and be paid for the new modes of exploitation, the courts, and Congress, appear more favorable to copyright control over that new market. Today, the courts and Congress regard the unlicensed distribution of works over the Internet as impairing copyright owners' ability to avail …