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Articles 1 - 8 of 8
Full-Text Articles in Law
The Melting Of Patent Law, Eben Moglen
The Melting Of Patent Law, Eben Moglen
Faculty Scholarship
In this special comment, the author posits that the patent system as it stands is archaic and oppressive, and has neither intellectual nor moral support. Having veered away from its original goals, by virtue of the change in the technological and functional basis of government, it instead serves as a justification for inequalities of wealth distribution. The author argues that substantial reform is required that would shift the balance in patent law from monopolistic greed to public interest, paving the way for access to knowledge.
Tolerated Use, Tim Wu
Tolerated Use, Tim Wu
Faculty Scholarship
"Tolerated use" is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated, use of copyrighted works. Such patterns of mass infringement have occurred before in copyright history, though perhaps not on the same scale, and have usually been settled with the use of special laws, called compulsory licensing regimes, more familiar to non-copyright scholars as liability rules. This paper suggests that, in present times, a different and slightly unusual solution to the issue of widespread illegal use is emerging-an "opt-in" system for copyright holders, that is in property terms a rare species of ex post …
Separating The Sony Sheep From The Grokster Goats: Reckoning The Future Business Plans Of Copyright-Dependent Technology Entrepeneurs, Jane C. Ginsburg
Separating The Sony Sheep From The Grokster Goats: Reckoning The Future Business Plans Of Copyright-Dependent Technology Entrepeneurs, Jane C. Ginsburg
Faculty Scholarship
In MGM v. Grokster, the U.S. Supreme Court established that businesses built from the start on inducing copyright infringement will be held liable, as judges will frown on drawing one's start-up capital from other people's copyrights. The Court's elucidation of the elements of inducement suggests that even businesses not initially built on infringement, but in which infringement comes to play an increasingly profitable part, may find themselves liable unless they take good faith measures to forestall infringements. This Article addresses the evolution of the U.S. judge-made rules of secondary liability for copyright infringement, and the possible emergence of an obligation …
Recent Developments In Us Copyright Law: Part I – "Orphan" Works, Jane C. Ginsburg
Recent Developments In Us Copyright Law: Part I – "Orphan" Works, Jane C. Ginsburg
Faculty Scholarship
This Comment, after a brief review of the nature of the orphan works problem and prior attempts to resolve it in the US, will analyze the current bills' provisions, both with respect to the limitation of remedies that constitutes the proposals' centerpiece, and to the conditions required to qualify for the limitation. I will also compare the US proposals with current European initiatives, and will assess the compatibility of the US proposals with international treaty norms, as well as the cross-border consequences of inconsistent US and EU orphan works regimes. I will conclude with some suggestions for amending the US …
Rethinking Copyright: Property Through The Lenses Of Unjust Enrichment And Unfair Competition, Shyamkrishna Balganesh
Rethinking Copyright: Property Through The Lenses Of Unjust Enrichment And Unfair Competition, Shyamkrishna Balganesh
Faculty Scholarship
For some time now, scholars have come to recognize the existence of numerous structural infirmities deeply embedded within the modern copyright system. Most of these infirmities have been attributed to internal tensions within copyright law and policy, including the competing philosophies of access and control, use and exclusion, and rights and exceptions. Professor Stadler’s insightful article documents these tensions and proposes a new way of mediating them. She argues that copyright law is best understood as instantiating a restriction
on unfair competition and, consequently, that it should do little more than protect creators of original works from “competitive harm” in …
"See Me, Feel Me, Touch Me, Hea[R] Me" (And Maybe Smell And Taste Me, Too): I Am A Trademark – A Us Perspective, Jane C. Ginsburg
"See Me, Feel Me, Touch Me, Hea[R] Me" (And Maybe Smell And Taste Me, Too): I Am A Trademark – A Us Perspective, Jane C. Ginsburg
Faculty Scholarship
The preceding chapter, “Between a sign and a brand,” addresses the current law in the UK and the EU regarding which signs can be a registered trademark, and the scope of protection a trademark receives. Jennifer Davis also considers the extent to which that scope does or should cover the more ineffable subject matter of “brand values.” This comment from the perspective of United States trademark law will follow a similar plan. It first will address what is (and is not) a trademark, focusing on the extensions of trademarks beyond traditional word marks and design marks (logos; trade dress [get-up]) …
Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg
Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg
Faculty Scholarship
The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for "fair use." In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of "copy;" the reach of the distribution right on "distribute copies" and "transfer of ownership;" the range of the public performance right on "public" and "perform." Entrepreneurs and users …
Our Uniform Patent System, Clarisa Long
Our Uniform Patent System, Clarisa Long
Faculty Scholarship
Patent reform arouses passions among the affected industries, whether they are plaintiffs or defendants, willing users or unwilling participants in the patent system. The key question, therefore, is: How should we structure the patent system in order to best promote innovation in the U.S. economy?