Law Commons^™

Creating Effective Broadband Network Regulation, Daniel L. Brenner

Daniel L. Brenner

ABSTRACT: The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for “network neutrality” or “nondiscrimination” assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This article’s chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation -- a key assumption of some advocates. The article analyzes three characteristics that hobble the FCC, the likeliest federal agency to provide prescriptive rules. First, the record for the …

The Yahoo Case And Free Speech, Privacy And Corporate Responsibilty In The People's Republic Of China, Nikola A. Koritz

Nikola A Koritz

It’s like opening Pandora’s Box. You can’t put the content back. When China made the Internet commercially available in 1995 it opened the floodgate to information and free communication. But the free exchange of ideas and information over the Internet threatens China’s ability to control information exchange. The People’s Republic of China enacted restrictive regulations controlling Internet usage and is adjusting these regulations in the pace of the technical development. This paper addresses the question how international companies who want to do business in China can comply with these circumstances without compromising substantial human rights and getting themselves in conflict …

Who's Your Daddy?: A Psychoanalytic Exegesis Of The Supreme Court's Recent Patent Jurisprudence, Gretchen S. Sween

Gretchen S. Sween

ABSTRACT Who’s Your Daddy?: A Psychoanalytic Exegesis of the Supreme Court’s Recent Patent Jurisprudence Gretchen S. Sween, Ph.D., J.D. Dechert LLP 300 W. 6th Street Suite 1850 Austin, TX 78701 gretchen.sween@dechert.com Since a new administration took office in 2001, the Supreme Court has granted certiorari in, and then decided, twelve patent cases in six years. Even more extraordinary is the Supreme Court’s remarkable consistency during this recent incursion into patent law: it has either reversed, vacated, and/or remanded Federal Circuit decisions in each instance in opinions that have been unanimous or nearly unanimous. Moreover, the Supreme Court’s rhetoric in formulating …

"Fit For Purpose:" Why The European Union Should Not Extend The Term Of Related Rights Protection In Europe, Susanna Monseau

Susanna Monseau

This paper argues that the European Union should not, as it currently proposes, extend the term of protection for sound recordings in Europe. It compares the U.K. government’s current policy that the scope and length of copyright protection for sound recordings should not be extended, with that of the European Union which, encouraged by the French government particularly, has recently proposed an extension from the 50 year term to a 95-year term of copyright protection for sound recordings. It analyzes several major independent reviews of the evidence on extending copyright protection for sound recordings, including the findings and recommendations of …

How To Save The Recording Industry?: Charge Less, Zac Locke

Zac Locke

“How much is music worth?” It is painfully clear that the traditional fifteen dollars charged for a packaged CD is too much. CD sales declined another fourteen percent in 2007, on top of years of similar erosion. As selling music online becomes the way of selling music of the future, record labels, music publishers and music e-tailers must find the ideal price point for their product. This Article defines the ideal price point at the price where the profit is maximized while making it easier for consumers to buy a song rather than download it for free. Technology, through replacing …

“All Life Is An Experiment”: Research Tool Patents, Epistemological Monopolies, And The First Amendment, Peter Lee

Peter Lee

This piece explores the largely unexamined relationship between patent law and the First Amendment. It focuses on patents on so-called “research tools”—technological products and processes that comprise vital inputs to basic scientific experimentation. Recent patent scholarship suggests that these patents may inhibit scientific inquiry, as they prevent scientists from accessing foundational technologies necessary to conduct basic research. Applying prevailing theories of the First Amendment, I argue that government-granted exclusive rights on these foundational technologies violate well-established free speech principles. Research tools patents impoverish the marketplace of ideas, undermine “scientific expression,” compromise the communal norms of the scientific community, and hinder …

Regulating Search, Viva R. Moffat

Viva R. Moffat

With the digital revolution and the internet age have come not just material and resources unimaginable fifty years ago, but also an overwhelming onslaught of information. Search engines have become the crucial intermediary in this online world, ameliorating the “information overload” and serving as the gatekeepers of the Internet. Academic commentators have recognized the significance of the issues posed by search engines’ role as a crucial intermediary, but the conversation about the appropriate structures for regulating search is still in its early stages. Thus far, the debate is a bipolar one: market regulation versus agency regulation.

In this paper, I …

The Harry Potter Lexicon And The World Of Fandom: Fan Fiction, Outsider Works, And Copyright, Aaron Schwabach

Aaron Schwabach

Fan fiction, long a nearly invisible form of outsider art, has grown exponentially in volume and legal importance in the past decade. Because of its nature, authorship, and underground status, fan fiction stands at an intersection of issues of property, sexuality, and gender. This article examines three disputes over fan writings, concluding with the recent dispute between J.K. Rowling and Steven Vander Ark over the Harry Potter Lexicon, which Rowling once praised and more recently succeeded in suppressing. The article builds on and adds to the emerging body of scholarship on fan fiction, concluding that much fan fiction is fair …

Trafficking In Trademarks: Setting Boundaries For The Uneasy Relationship Between "Property" Rights And Trademark And Publicity Rights, Sheldon W. Halpern

Sheldon W Halpern

The piece is concerned with the general problem of the relationship between “property” constructs on the one hand and trademark and right of publicity law on the other. More specifically, it deals with the need to establish workable boundaries for trademark law and related right of publicity claims. The issue is seen most clearly in connection with “merchandising” of the trademark or image itself. The approach to merchandising rights with respect both to trademarks and celebrity images has been needlessly complex and demands simplification. The Supreme Court’ recent series of trademark opinions, with their strong admonition to restore and recognize …

Copyright And The Fashion Industry, Victoria R. Watkins

Victoria R Watkins

This paper seeks to discuss the relationship, or lack there of, between copyrights and the fashion industry. Although fashion designs are works of authorship, and comply with originality requirements of § 102 of the Copyright Act, the structure and nature of the industry do not compel the need for this protection, enabling it to run efficiently without it. In order to prove the stated claim, the article will examine the history of the industry, case law, other scholarly writings and current trends in the market.

Analysis Of The Ksr's Ruling On Electronics Patents, Shubha Ghosh, Li Li

Shubha Ghosh

This article examines the impact of the Supreme Court’s ruling in KSR v. Teleflex on electronics patents as well as patent portfolios. By analyzing several subsequent cases regarding electronic patents, the article articulates the basic principle of non-obviousness in electronic patents. Applying the principle into the analysis of a hypothetical, the analysis predicts that many issued patents having combination of prior art under the TSM test may not pass the high hurdle of non-obviousness under the KSR ruling. Furthermore, the paper extends the KSR ruling to the value assessment of a patent portfolio. At last, the article proposes a tentative …

Protection And Enforcement Of Well-Known Mark Rights In China: History, Theory, And Future, Shubha Ghosh, Jing Brad Luo

Shubha Ghosh

Contrary to the popular notion that China does not have strong protection for international well-known marks, China does in fact has in place an institutional structure for the protection of well-known marks. This institutional structure evolved over the last few decades as China gradually opened itself up to the rest of the world, which evolution reflects and corresponds to the international and domestic forces underlying the gradual development of the Chinese trademark law. This institutional structure, in its current form, promises a wide range of remedies to rights holders in case of infringement. Despite laudable progress wrought in by this …

The Impact Of Government-Mandated Public Access To Biomedical Research: An Analysis Of The New Nih Depository Requirements, Kristopher A. Nelson

Kristopher A Nelson

On December 26, 2007, President Bush signed the Consolidated Appropriations Act of 2008. The bill, which became Public Law 110-161, contained a new requirement that manuscripts developed through funding by the National Institutes of Health (NIH) be made available to the public, free of charge, within one year after publication. This new mandatory requirement struck a compromise position between the existing pay-to-access model of private journal publishers and the potential free-for-all of the public domain. But did it go far enough? Should Congress have adopted a more aggressive policy of opening access to research? Alternatively, did Congress go too far, …

Testing The Over- And Under-Exploitation Hypotheses: Bestselling Musical Compositions (1913-32) And Their Use In Cinema (1968-2007), Paul J. Heald

Paul J. Heald

Some economists assert that as valuable works transition from copyrighted status and fall into the public domain they will be underexploited and their value dissipated. Others insist instead that without an owner to control their use, valuable public domain works will be overexploited or otherwise debased. This study of the most valuable musical compositions from 1913-32 demonstrates that neither hypothesis is true as it applies to the exploitation of songs in movies from 1968-2007. When compositions fall into the public domain, they are just as likely to be exploited in movies, suggesting no under-exploitation. And the rate of exploitation of …

Rolling Equilibriums At The Pre-Commons Frontier: Identifying Patently Efficient Royalties For Complex Products, F. Russell Denton

F. Russell Denton

Patent pricing problems have roiled industry in recent years. The biggest challenge may be splintered in-licensing of dozens or even thousands of patents for a single behemoth product, where ubiquitous overlaps in invention utility frustrate rational splitting of royalties. That issue is especially daunting for software, computer chips and biotechnology. Judicial remedies are no better: courts have been unable to streamline or standardize the analysis for infringement dam-ages under the prevailing Georgia-Pacific rule. The historic weakness of financial science for intangible assets, along with cherry picking by parties, hobbles G-P’s 15-factor analysis. The universal fog in allocating royalties creates license …

Patents As Property: Conceptualizing The Exclusive Right(S) In Patent Law, Adam Mossoff

Adam Mossoff

The conventional wisdom is that the definition of patents as property has been long settled: unlike land and chattels, which secure the traditional "bundle" of rights, patents secure only a negative right to exclude. In exploring the history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, a patent was defined by Congress and courts in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding legal doctrines, …

Grokster, Bittorrent, Copyright Infringement, And Inducement: How Modus Operandi Can Provide A Functional Standard For Future File-Sharing Cases, Jamie Gregorian

Jamie Gregorian

In 2005, the Supreme Court issued its landmark ruling in MGM Studios Inc. v. Grokster, Ltd. In that ruling, the Court created the inducement standard, a new avenue by which artists could pursue claims against file-sharing companies that were facilitating the infringement of their intellectual property. Under the inducement standard, the act of inducing another to infringe copyright is now sufficient to confer secondary liability. As file-sharing outfits continue to learn from previous judicial decisions and tailor their infringement-facilitating software so as to avoid legal liability, the criminal law concept of modus operandi may prove beneficial to courts in deciding …

Improving The Federal Circuit's Approach To Choice Of Law For Procedural Matters In Patent Cases, Ted L. Field

Ted L. Field

Because of its virtually exclusive jurisdiction over patent cases from the entire country, the United States Court of Appeals for the Federal Circuit faces a unique situation with respect to choice of law for procedural matters in patent cases. Normally, in a non-patent-related case, a district court applies the procedural-law precedent of the U.S. Court of Appeals for the circuit in which the district court sits. However, because the Federal Circuit’s jurisdiction is based on subject matter rather than geography, the court has had to choose whether (1) to develop and apply its own precedent to procedural matters or (2) …

Patents As Property: Conceptualizing The Exclusive Right(S) In Patent Law, Adam Mossoff

Adam Mossoff

The conventional wisdom is that the definition of patents as property has been long settled-—patents secure only a right to exclude. In exploring the intellectual history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, Congress and courts defined a patent in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding doctrines in the American patent system, such as the conveyance default rules now known as patent …

Common Sense: Treating Statutory Non-Obviousness As A Novelty Issue, N. Scott Pierce

N. Scott Pierce

Title 35 of United States Code, at Section 103, limits patent protection to subject matter that would not be “obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” The requirement was introduced as a statute by the Patent Act of 1952, but, according to the legislative history, was a codification of judicial precedent. The origin of that precedent is widely attributed to the 1851 Supreme Court decision of Hotchkiss v. Greenwood, 52 U.S. 248 (1851). However, declaration of Hotchkiss as a watershed moment in legal history …

Trafficking In Trademarks: Setting Boundaries For The Uneasy Relationship Between “Property” Rights And Trademark And Publicity Rights, Sheldon W. Halpern

Sheldon W Halpern

The piece is concerned with the general problem of the relationship between “property” constructs on the one hand and trademark and right of publicity law on the other. More specifically, it deals with the need to establish workable boundaries for trademark law and related right of publicity claims. The issue is seen most clearly in connection with “merchandising” of the trademark or image itself.

The approach to merchandising rights with respect both to trademarks and celebrity images has been needlessly complex and demands simplification. The Supreme Court’ recent series of trademark opinions, with their strong admonition to restore and recognize …

Contracting To Preserve Open Science: The Privatization Of Public Policy In Patent Law, Peter Lee

Peter Lee

Patents on biomedical research tools—technological inputs to experimentation—may inhibit scientific inquiry and the development of life-enhancing treatments. Various “public law” approaches to address this challenge, such as a common law experimental use exception to patent infringement, have achieved limited success. In the wake of these shortcomings, this Article argues that institutions are resorting to a new paradigm of patent regulation to resolve research holdup. Increasingly, federal and state agencies, universities, non-profits, and disease advocacy groups are conditioning vital research support on requirements that recipients share resulting patented inventions widely for noncommercial research purposes. In essence, these institutions are contractually constructing …

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

this article addresses both the theoretical and practical elements of M&A due diligence regarding IP and IT, with an emphasis on recent developments.

From Nuclear War To Net War: Analogizing Cyber Attacks In International Law, Scott James Shackelford

Scott Shackelford

On April 27, 2007, Estonia was attacked by a computer network causing widespread damage. It is currently unclear what legal rights a state has as a victim of a cyber attack. Even if Estonia could conclusively prove that it was Russia, for example, behind the March 2007 attack, could it respond with force or its own cyber attack? There is a paucity of literature dealing with these questions, as well as the ethical, humanitarian, and human rights implications of information warfare (“IW”) on national and international security. Treatments of IW outside the orthodox international humanitarian law (“IHL”) framework are nearly …

Using Patent Law’S Teaching Function To Introduce An Environmental Ethic Into The Process Of Technical Innovation, David L. Booton, Carolyn R. Abbot

David L Booton

This article suggests that patent law be amended so as to demand that applicants disclose, as a condition of grant, the ‘best available technique’ for carrying out the claimed invention. This amendment, it is argued, would give patent law a useful role in promoting sustainable production by providing an incentive to shift production patterns in line with the concept of sustainable consumption and production (SCP). Delivering goods and services with lower environmental impacts is commonly acknowledged as a key component of sustainable development, with national governments and international organisations prioritising the SCP agenda. In recognising the role of patents in …

Pirates Among The Second Life Islands – Why You Should Monitor The Misuse Of Your Intellectual Property In Online Virtual Worlds, Ben Quarmby

Ben Quarmby

Virtual online worlds such as Second Life – a world in which users can live, work and purchase virtual goods, services and real estate – have enjoyed a well-documented explosion in popularity. Their success, however, has not come without some degree of turbulence. Relying on the example of Second Life, this article will address one of the primary sources of concern to arise in connection with these worlds: the dramatic escalation in trademark and copyright violations in virtual world and its impact on real-world individuals or business entities. Given that users have the ability to design and create virtual property …

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

No abstract provided.

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

This article is intended to address both the theoretical and practical elements of M&A due diligence associated with intellectual property and information technology issues.

Network Neutrality: Laissez Faire Approach Or Not?, Rebecca Wong Dr

Dr Rebecca Wong

The paper discusses the topical subject of network neutrality, from a US and European legal perspective. Whilst acknowledging the plethora of literature on network neutrality, it argues that regulation in favour of network neutrality should not be confined with the US/European borders but that network neutrality should be addressed from a global perspective through the OECD/WTO. The article will begin by defining network neutrality, before discussing the technology underpinning network neutrality. It will compare the different legal approaches adopted by Europe and the US to the regulation of network neutrality. In Europe, there is an existing electronic communications regulatory framework, …

Beyond Recombinant Technology: Synthetic Biology And Patentable Subject Matter, Luigi Palombi

Luigi Palombi

Even though it is not yet clear as a matter of law that isolated biological materials are indeed patentable subject matter, not only have patents over such materials continued to be granted throughout the world, but the European Parliament passed the Biotechnology Directive in 1998 in an attempt to put an end to the debate. The problem is that TRIPS requires that patents be granted for 'inventions' only and there is a real question over whether isolated biological materials or those made by the use of synthetic biology are indeed inventions within the meaning of the word in TRIPS. But …