Law Commons^™

Charging Bull, Fearless Girl, Composition, And Copyright, Richard H. Chused

Articles & Chapters

No abstract provided.

Open Access: “Information Wants To Be Free”?, Richard Poynder

Copyright, Fair Use, Scholarly Communication, etc.

The main points made in this document:

- Internet mantras like information wants to be free misled OA advocates about what is possible in an online world. Amongst other things, these mantras led to the mistaken belief that publishing would be very much cheaper on the internet.

- BOAI was intended to achieve three things: to resolve the longstanding problems of affordability, accessibility, and equity that have long dogged scholarly communication.

- It now seems unlikely that the affordability and equity problems will be resolved, which will impact disproportionately negatively on those in the Global South. And if the geopolitical …

Brief For The Coalition Against Patent Abuse As Amicus Curiae In Support No Party, Charles Duan

Amicus Briefs

Perhaps unexpectedly, a case on the constitutionality of the Patent Trial and Appeal Board has major significance to the pressing policy crisis of drug prices in the United States. Erroneously issued patents monopolize medical therapies, making them unaffordable or inaccessible to numerous Americans. The inter partes review proceedings that the Board conducts have repeatedly and successfully overcome such patents, enabling competition and dramatically lowering prices. This Court should ensure the continued viability of the Board and of inter partes review, by preserving the Board’s objectivity and independence from executive branch political influence.

A Historical Note On The Assignment Of Pesticide Common Names, Jorge L. Contreras

Utah Law Faculty Scholarship

Thousands of pesticides, herbicides, and related chemical products are used today to control disease-bearing insect populations and enable large-scale agricultural production that feeds much of the world. This short note traces the history of one small but important aspect of this industry—the assignment of common names to pesticides and related products. The little-known history of pesticide common names is illustrative of a few important points. First, it demonstrates the trend exhibited in many fields for the development of standards to migrate from a governmental agency to a US-based standards organization to an international standards organization. Second, it evidences the concern …

No License, No Problem – Is Qualcomm’S Ninth Circuit Antitrust Victory A Patent Exhaustion Defeat?, Jorge L. Contreras, Jorge L. Contreras

Utah Law Faculty Scholarship

The Ninth Circuit’s recent decision in FTC v. Qualcomm (9th Cir., Aug. 11, 2020) is generally viewed as a resounding victory for Qualcomm. But in praising Qualcomm’s egalitarian approach toward rival chip makers, the Ninth Circuit points out that instead of granting licenses to these rivals, Qualcomm merely “declines to enforce its patents” against them “even though they practice Qualcomm’s patents”. As such, the Ninth Circuit states that Qualcomm’s “policy toward rival chipmakers could be characterized as ‘no license, no problem’”. Yet, from the standpoint of patent exhaustion, this approach could actually be a very big problem, not only for …

Legal Terms Of Use And Public Genealogy Websites, Jorge L. Contreras, Kyle Schultz, Craig Teerlink, Tim Maness, Laurence Meyer, Lisa Cannon-Albright

Utah Law Faculty Scholarship

Public genealogy websites, to which individuals upload family history, genealogy, and sometimes individual genetic data, have been used in an increasing number of public health, epidemiological, and genetic studies. Yet there is little awareness among researchers of the legal rules that govern the use of these online resources. We analyzed the online Terms of Use (TOU) applicable to 17 popular genealogy websites and found that none of them expressly permit scientific research, while at least 13 contain restrictions that may limit or prohibit scientific research using data obtained from those sites. In order to ensure that researchers who use genealogy …

Artificial Intelligence, The Law-Machine Interface, And Fair Use Automation, Peter K. Yu

Faculty Scholarship

From IBM Watson's success in Jeopardy! to Google DeepMind's victories in Go, the past decade has seen artificial intelligence advancing in leaps and bounds. Such advances have captured the attention of not only computer experts and academic commentators but also policymakers, the mass media and the public at large. In recent years, legal scholars have also actively explored how artificial intelligence will impact the law. Such exploration has resulted in a fast-growing body of scholarship.

One area that has not received sufficient policy and scholarly attention concerns the law-machine interface in a hybrid environment in which both humans and intelligent …

Pledging Intellectual Property For Covid-19, Jorge L. Contreras

Utah Law Faculty Scholarship

COVID-19 differs from other recent public health crises with respect to its sudden onset, its rapid spread, the lack of any known vaccine or cure and resulting shortages of critical medical equipment. The convergence of these factors has prompted both governments and IPR holders around the world to seek ways to increase the availability of IPR necessary to combat the pandemic. Governmental compulsory licensing, IPR pools and voluntary IPR pledges have all been used in the past, though in situations that differ in important respects from the COVID-19 pandemic. Each is designed to result, to a greater or lesser degree, …

Will China's New Anti-Suit Injunctions Shift The Balance Of Global Frand Litigation?, Jorge L. Contreras

Utah Law Faculty Scholarship

By issuing anti-suit injunctions (ASIs) in Conversant v. Huawei and InterDigital v. Xiaomi in late 2020, Chinese courts have signaled a new willingness to vie for jurisdictional authority in global battles over standard-essential patents and FRAND licensing. While the Supreme People’s Court in Conversant largely followed the pattern of US and UK courts that have issued ASIs in similar cases, the ruling of the Wuhan court in InterDigital is far broader in two major respects. First, its geographic scope is not limited to the country in which InterDigital sought injunctive relief (India), but extends to all jurisdictions in the world. …

Financial Terms In License Agreements, Jorge L. Contreras

Utah Law Faculty Scholarship

This chapter in the forthcoming casebook Intellectual Property Licensing and Transactions: Theory and Practice (2020, forthcoming), discusses the financial terms of IP licensing agreements including fixed payments, running royalties, sublicensing income, milestone payments, equity compensation and cost reimbursement, as well as most-favored and audit clauses. Numerous areas of recent controversy are addressed including the establishment of royalty rates through the entire market value rule (EMVR) versus the smallest salable patent practicing unit (SSPPU) rule, royalties for bundled rights, rules of thumb discredited by the courts, royalty escalation clauses and more. Examples are drawn primarily from biotechnology, high-tech and copyright licensing …

First Sale And Exhaustion, Jorge L. Contreras

Utah Law Faculty Scholarship

This chapter in the forthcoming case book "Intellectual Property Licensing and Transactions: Theory and Practice" addresses issues of first sale and exhaustion for licensing transactions involving patents, copyrights and trademarks. Among the issues considered are licensing versus sale of software, patent exhaustion, post-sale restrictions, international exhaustion and gray market imports.

U.S. Federal Genomic Data Release And Access Policies, Jorge L. Contreras

Utah Law Faculty Scholarship

Researchers today have access to a vast aggregation of human and nonhuman genomic data, largely on an open access basis. According to the Joint Genome Institute’s Genomes OnLine Database (GOLD), data from more than 40,000 sequencing projects around the world, representing more than 375,000 different organisms, were publicly available to researchers as of July 2020. The availability of this tremendous public resource is due, in large part, to the data release policies developed a quarter century ago, toward the beginning of the Human Genome Project (HGP), which have been carried forward, in modified form, to the present. These policies impose …

Antitrust And Competition Issues, Jorge L. Contreras

Utah Law Faculty Scholarship

This Chapter offers a broad overview of the impact of U.S. antitrust laws on IP licensing and transactions. A basic understanding of antitrust law is critical to the analysis of IP licensing arrangements, whether concerning patents, copyrights or trademarks. This chapter offers a summary of the antitrust doctrines that arise frequently in IP and technology-focused transactions — price fixing and market allocation, resale price maintenance, tying, monopolization, refusals to deal, standard setting and pay-for-delay settlements, with coverage of the major cases and enforcement agency guidance. Antitrust issues also play a role in the analysis of joint ventures, which are discussed …

Economic Analyses Of Federal Scientific Collections: Methods For Documenting Costs And Benefits, David E. Schindel, Economic Study Group Of The Interagency Working Group On Scientific Collections

Copyright, Fair Use, Scholarly Communication, etc.

Federal object-based scientific collections have been created to serve agency missions and, in a few cases, to comply with legislative and regulatory mandates. “Project collections” (those managed by the researchers who obtained them for restricted use) and their costs and benefits were considered too varied for standard methodologies that assess costs and benefits. In a few cases, departments and agencies are required by legislation or regulations to retain objects in long-term “institutional collections.” In most cases, decisions to retain objects are based on long-term costs relative to the perceived potential for benefits to taxpayers. Federal collections vary in their philosophies …

Copyright And The Brain, Mark Bartholomew

Journal Articles

This Article exploresthe intersection of copyright law, aesthetic theory, and neuroscience. The current test for copyright infringement requires a court or jury to assess whether the parties’ works are “substantially similar” from the vantage point of the “ordinary observer. ”Embedded within this test are several assumptions about audiences and art. Brain science calls these assumptions into question. The substantial similarity test posits that aesthetic reactions are unmeasurable and uniform. In actuality, they can be quantified and vary depending on audience and artistic medium. Neuroscience has already reconfigured the law in many areas, from tort damages to the death penalty. Now …

Intellectual Property Rights And The Rule Of Law, Jorge L. Contreras

Utah Law Faculty Scholarship

The subject of this conference is the “Rule of Law”, so I would like to address my opening comments to a trending narrative that casts opposition to the demands of patent holders as a form of lawlessness. This narrative specifically takes aim at a practice that has been termed “efficient infringement” – the idea that a firm may rationally decide to infringe patents either because it will be too costly for the patent holder to enforce its rights in court, or because it is happy to take its chances in court, where an asserted patent may be invalidated and where …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

"Fair Use" Through Fundamental Rights In Europe: When Freedom Of Artistic Expression Allows Creative Appropriations And Opens Up Statutory Copyright Limitations, Christophe Geiger

Joint PIJIP/TLS Research Paper Series

This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union. It demonstrates how courts in France and several other EU member states have accepted a “fair use” approach that applies fundamental rights as external limitations to copyright law, in compliance with the case law of the European Court of Human Rights but contrasting with the recent conflicting position of the Court of Justice of the European Union. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that, …

Competitive Harm From Vertical Mergers, Herbert J. Hovenkamp

All Faculty Scholarship

The antitrust enforcement Agencies' 2020 Vertical Merger Guidelines introduce a nontechnical application of bargaining theory into the assessment of competitive effects from vertical acquisitions. The economics of such bargaining is complex and can produce skepticism among judges, who might regard its mathematics as overly technical, its game theory as excessively theoretical or speculative, or its assumptions as unrealistic.

However, we have been there before. The introduction of concentration indexes, particularly the HHI, in the Merger Guidelines was initially met with skepticism but gradually they were accepted as judges became more comfortable with them. The same thing very largely happened again …

Copyright, Andrea Wallace

Copyright, Fair Use, Scholarly Communication, etc.

Copyright is intended to incentivize the production of new creative works and protect authors’ connection to them. In return, the author receives exclusive rights over the creative work and can commercialize or release them for various uses. Once the copyright expires, these works pass into the public domain and can be used by anyone to produce new creative works and knowledge.

GLAMs (Galleries, Archives, Libraries, and Museums) protect, preserve, and extend access to these works (and many other materials) for the appreciation of current and future generations. This is often facilitated today by digitizing collections and making them available online. …

Who's Afraid Of Section 1498? A Case For Government Patent Use In Pandemics And Other National Crisis, Charles Duan, Christopher J. Morten

Articles in Law Reviews & Other Academic Journals

COVID-19 has created pressing and widespread needs for vaccines, medical treatments, PPE, and other medical technologies, needs that may conflict--indeed, have already begun to conflict--with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government paid compensation under 28 U. S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point that it ought …

Certiorari In Patent Cases, Christa J. Laser

Law Faculty Articles and Essays

In the decade from 2010 to 2019, the Supreme Court has decided more patent law cases than in the prior three decades combined. A higher percentage of its docket has been patent cases--5.45%--than in any decade in the last century. A number of scholars have advanced theories of why this rate of review of patent cases has increased and provided quantitative analyses. Yet no scholarship to date has used qualitative data to investigate why the Supreme Court’s patent docket is increasing and what factors the Supreme Court considers in its review of patent cases. This paper shares statistics of the …

The Domestic Effect Of South Africa's Treaty Obligations: The Right To Education And The Copyright Amendment Bill, Sanya Samtani

Joint PIJIP/TLS Research Paper Series

On 16 June 2020, the President of South Africa returned the Copyright Amendment Bill [B-13 of 2017] to Parliament, expressing reservations regarding its constitutionality and compliance with international law. In this paper, I describe the constitutional implications of compliance with international law and the binding international obligations incumbent upon South Africa in respect of copyright and international human rights law. In doing so, I argue that the Bill of Rights acts as a magnet, compelling all organs of state to give greater normative weight to those international obligations that map onto the Bill of Rights as compared to those …

Sometimes Frand Does Mean License-To-All, Jorge L. Contreras

Utah Law Faculty Scholarship

FRAND commitments are creations of written policy documents and contract law. Accordingly, the existence of a “License to All” obligation under a FRAND commitment must arise from the relevant policy language. Numerous SDO policies expressly impose “License to All” requirements. Some SDO policies are ambiguous with respect to this requirement and such ambiguities should be resolved based on an examination of extrinsic evidence including the intentions of policy drafters, the shared understandings of SDO participants, and the historical precedents for such policies. In many cases, an examination of these factors should lead to the conclusion that “License to All” is, …

Equitable Defenses In Patent Law, Christa J. Laser

Law Faculty Articles and Essays

In patent law, “unenforceability” can have immense consequences. At least five equitable doctrines make up the defense of “unenforceability” as it was codified into the Patent Act in 1952: laches; estoppel; unclean hands; patent misuse; and according to some, inequitable conduct. Yet in the seventy years since incorporation of equitable defenses into the patent statute, the Supreme Court has not clarified their reach. Indeed, twice in the last four years, the Supreme Court avoided giving complete guidance on the crucial questions of whether, and when, such equitable defenses are available to bar damages in cases brought at law.

Several interpretive …

"An Hundred Stories In Ten Days": Covid-19 Lessons For Culture, Learning And Copyright Law, Carys J. Craig, Bob Tarantino

Joint PIJIP/TLS Research Paper Series

In the face of a pandemic, copyright law may seem a frivolous concern; but its importance lies in the ever-expanding role that it plays in either enabling or constraining the kinds of communicative activities that are critical to a flourishing life. In this article, we reflect on how the cultural and educative practices that have burgeoned under quarantine conditions shed new light on a longstanding problem: the need to recalibrate the copyright system to better serve its purposes in the face of changing social and technological circumstances. We begin by discussing how copyright restrictions have manifested in a variety of …

The State Of Altmetrics: A Tenth Anniversary Celebration, Kathy Christian, Euan Adie, Gemma Derrick, Fereshteh Didegah, Paul Groth, Cameron Neylon, Jason Priem, Shenmeng Xu, Zohreh Zahedi, Yin-Leng Theng, Saeed-Ul Hassan, Naif R. Aljohani, Timothy D. Bowen, Vanesh M. Patel, Robin Haunschild, Lutz Bornmann, Mike Taylor, Liesa Ross, Stacy Konkiel

Copyright, Fair Use, Scholarly Communication, etc.

Altmetric’s mission is to help others understand the influence of research online.We collate what people are saying about published research in sources such as the mainstream media, policy documents, social networks, blogs, and other scholarly and non-scholarly forums to provide a more robust picture of the influence and reach of scholarly work. Altmetric works with some of the biggest publishers, funders, businesses and institutions around the world to deliver this data in an accessible and reliable format.

Contents

Altmetrics, Ten Years Later, Euan Adie (Altmetric (founder) & Overton)

Reflections on Altmetrics, Gemma Derrick (University of Lancaster), Fereshteh Didegah (Karolinska Institutet …

Intellectual Property Pools And Aggregation, Jorge L. Contreras

Utah Law Faculty Scholarship

This chapter in the forthcoming case book "Intellectual Property Licensing and Transactions: Theory and Practice" covers IP pooling, with an emphasis on patents. It begins with a discussion of the theoretical benefit of pooling, including efficiency gains and the avoidance of blocking positions, thickets and anti-commons. It then addresses antitrust analysis of pooling transactions from Standard Oil (Indiana) v. United States (U.S. 1931) through the 2017 DOJ-FTC Antitrust Guidelines. The chapter then turns to pools created to facilitate standard-setting, including the MPEG-2 and 3GPP Pools, and discusses the concept of complementarity and essentiality of pooled assets. It concludes with brief …

Good Faith In Canadian Trademark Applications, David Vaver

Articles & Book Chapters

On June 17, 2019, a new ground of trademark invalidation and opposition took effect in Canada: that “an application [for registration] was filed in bad faith.” This cryptic provision was enacted in 2018 to modify the package of 2014 amendments to the Trademarks Act that, when proclaimed into effect in 2019, radically changed Canada’s trademark system by allowing for the first time the registration of trademarks without evidence of use.

This Comment explores why the bar on bad faith applications was enacted and how it may work in practice.

District Court: Final Order (2020), Orinda Evans

Georgia State University Copyright Lawsuit

No abstract provided.