Law Commons^™

The New Legal Landscape For Text Mining And Machine Learning, Matthew Sag

Faculty Articles

Now that the dust has settled on the Authors Guild cases, this Article takes stock of the legal context for TDM research in the United States. This reappraisal begins in Part I with an assessment of exactly what the Authors Guild cases did and did not establish with respect to the fair use status of text mining. Those cases held unambiguously that reproducing copyrighted works as one step in the process of knowledge discovery through text data mining was transformative, and thus ultimately a fair use of those works. Part I explains why those rulings followed inexorably from copyright's most …

Defense Against The Dark Arts Of Copyright Trolling, Matthew Sag, Jake Haskell

Faculty Articles

In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at noninfringers as well as infringers. This practice is a subset of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet …

The Need For Speed (And Grace): Issues In A First-Inventor-To-File World, Margo A. Bagley

Faculty Articles

“One is the loneliest number that you’ll ever do.” This lyric applies to the United States which, since 1998, stands alone among the world’s patent systems in awarding patents to the first person to invent a claimed invention (first to invent, or “FTI”) as opposed to the first inventor to file an application claiming the invention (“FITF”). But its lonely days may soon be over: a provision in pending patent reform legislation will (if passed) move the United States from FTI to FITF and end its solitary stance.

Some argue that the U.S. already has a de facto FITF system, …

Patent Reform And Differential Impact, Matthew Sag, Kurt W. Rohde

Faculty Articles

The structure of the article is as follows. Part I provides an introduction to the problems created by bad patents and introduces the differential impact test for evaluating patent reform proposals.

Part II examines the origin of bad patents and applies two different economic models to explain their persistence. The first model focuses on a potential infringer’s incentives to challenge a bad patent; the second model focuses on a patent holder’s incentive to assert a patent. We explain bad patents as an emergent phenomenon: they are the product of the apparently low quality of patent examination and the complex, uncertain, …

Academic Discourse And Proprietary Rights: Putting Patents In Their Proper Place, Margo A. Bagley

Faculty Articles

This Article provides a fresh perspective on the Bayh-Dole debate by focusing on the impact of patent novelty rules on academic discourse. The Article proposes that to begin to reverse an observed deterioration in disclosure norms, flexibilities must be built into the patent system so that patents can be facilitators of the academic knowledge dissemination enterprise. In particular, the Article advocates creation of an opt-in extended grace period that would provide more time for academic researchers to publish and present early-stage research before having to file a patent application. Such an extension, coupled with early application publication, would both address …

Linguistics As A Knowledge Domain In The Law, Janet Ainsworth

Faculty Articles

This article focuses on the use of linguistic expertise by trial courts to aid in fact-finding. It identifies many of the ways the legal system has been enriched by donations from linguistic scholarship. In addition, it discusses the underutilized-at-present use of linguistic knowledge by appellate courts as a tool for crafting and applying doctrinal rules. Whereas courts have adopted economics analysis in determining appropriate legal rules, linguistic science has been neglected. Linguistic predictions are more testable and falsifiable than economic predictions. Linguistic research can be useful—particularly in the areas of comprehensibility of texts and resolving textual ambiguity. Indeed, legislatures and …

God In The Machine: A New Structural Analysis Of Copyright's Fair Use Doctrine, Matthew Sag

Faculty Articles

Recognition of the structural role of fair use has the potential to mitigate some of the uncertainty of current fair use jurisprudence. The statutory framework for fair use both mitigates and causes uncertainty. It mitigates uncertainty by providing a consistent framework of analysis the four statutory factors. However, when judges apply the statutory factors without articulating or justifying their own assumptions, they increase uncertainty. The statutory factors mean nothing without certain a priori assumptions as to the scope of the copyright owner's rights. A more stable and predictable fair use jurisprudence would begin to emerge if those assumptions were made …

The First Amendment In An Age Of Paratroopers, David Skover, Ronald Collins

Faculty Articles

As the lead piece in a Colloquy entitled The First Amendment and the Paratroopers' Paradox, this article argues that today's free speech theory is largely grounded in 18th Century fears of government's tyrannical censorship. This theory is ill-equipped to deal with a distinct tyranny in 21st Century America, a tyranny playing upon the public's insatiable appetite for amusement. Those who venture to develop free speech principles to suit a new cultural environment are the First Amendment paratroopers of our time, the ones who realize that we cannot retain our old constitutional prerogatives in a transformed world. The Paratroopers' Paradox: To …