Law Commons^™

Intellectual Property, Copyright, And Piracy: A Cultural View, Steven W. Staninger

Copley Library: Faculty Scholarship

Religion plays a major role in determining culture, and has an important effect on how laws are both written and enforced. The concept of intellectual property varies in different cultural traditions, and the dominant religion of a culture plays a major role in the how copyright is viewed and if it is respected or enforced. This paper briefly evaluates the cultures of three major religious and intellectual traditions to determine what, if any, effect their beliefs and values have on the respect for and enforcement of laws defending intellectual property and copyright.

Inventing Norms, William Hubbard

All Faculty Scholarship

Patent law strives to promote the progress of technology by encouraging invention. Traditionally, scholars contend that patent law achieves this goal by creating financial incentives to invent in the form of exclusive rights to new technology. This traditional view of invention, however, fails to recognize that inventors are motivated by more than money. Like most people, inventors are also motivated by social norms, that is, shared normative beliefs favoring certain actions while disfavoring others. This Article argues that many Americans embrace social norms that favor and encourage successful invention. Because of these "inventing norms" inventors enjoy enhanced personal satisfaction and …

A State Law Approach To Preserving Fair Use In Academic Libraries, David R. Hansen

David R Hansen

Why Full Open Access Matters, Michael W. Carroll

Joint PIJIP/TLS Research Paper Series

This Perspective argues that when authors or funders pay the full cost of publishing a scientific or scholarly journal article in an open access journal, the terms of reuse should require only attribution to some combination of the author(s), the original publisher, and the funder. Publications that charge authors and their financial backers the full cost of publication and then add other reuse restrictions are not fully open access publications.

Trademark Protection Of Color Alone: How And When Does A Color Develop Secondary Meaning And Why Color Marks Can Never Be Inherently Distinctive, Diane E. Moir

Touro Law Review

No abstract provided.

The Ethics Of Genetic Patenting And The Subsequent Implications On The Future Of Health Care, Suzanne Ratcliffe

Touro Law Review

No abstract provided.

Harvesting Intellectual Property: "Inspired Beginnings" And "Work Makes Work," Two Stages In The Creative Processes Of Artists And Innovators, Jessica M. Silbey

Jessica Silbey

This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents, and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists, and engineers about how and why they create and innovate. It also collects stories from their employers, business partners, managers, and lawyers about their role in facilitating the process of creating and innovating. The book’s aim is to make sense of the intersection between intellectual property law and creative and innovative activity, specifically to discern how intellectual property intervenes in the careers of the …

Primitive Accumulation And Enclosure Of The Commons: Genetically Engineered Seeds And Canadian Jurisprudence, Wilhelm Peekhaus

Wilhelm Peekhaus

This paper juxtaposes the legal decisions made in the case of Percy Schmeiser, who was sued by Monsanto for patent infringement, against the attempt by the Organic Agriculture Protection Fund to obtain class certification in its efforts to sue Monsanto and Bayer for genetic contamination of organic canola. Together these two cases establish an unacceptable incongruity at common law between the rights enjoyed by intellectual property owners and any corresponding duties that might attach to their inventions. I suggest that Marx’s concept of primitive accumulation offers a suitable theoretical register for apprehending contemporary erosions of the commons through the enclosure …

The Changing Damages Regime: Reasonable Royalties After Lucent And Willful Infringement And Enhanced Damages After Seagate, Christopher B. Seaman

Christopher B. Seaman

No abstract provided.

Book Review Of Research Handbook On The Protection Of Intellectual Property Under Wto Rules And Research Handbook On The Interpretation And Enforcement Of Intellectual Property Under Wto Rules, Benjamin J. Keele

Library Staff Publications

No abstract provided.

Sampling, Looping, And Mashing … Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans

Tonya M. Evans

This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship.

For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) …

Marca Corporal, Derecho De Propiedad Intelectual (Derecho De Tatuajes), Rodolfo C. Rivas Rea Esq., Marco A. Vargas Esq.

Rodolfo C. Rivas

The authors go back to the origins of tattoos and trace its way into mainstream pop culture. In doing so, they analyze the legal implications of tattoos relating to IP through various brief case studies.////////////////////////////////////////////////////////////////////////////////////////////////Los autores se remontan a los orígenes de los tatuajes y trazan su camino dentro de la cultura pop. Paralelamente, analizan las implicaciones jurídicas de los tatuajes a través de diversos casos.

Resolving Conflicts Between Green Technology Transfer And Intellectual Property Law, Robert V. Percival, Alan Miller

Robert Percival

This paper examines claims that intellectual property law, which is designed to create incentives for innovation, actually may inhibit the transfer to developing countries of green energy innovations. Although the paper cannot find significant examples of green energy technologies whose diffusion has been hindered by existing intellectual property protections, it explores strategies, such as compulsory licensing schemes, for responding to such problems if and when they arise in the future. The paper concludes that intellectual property law need not be an obstacle to a global transformation toward a green energy infrastructure that can promote economic development while advancing new levels …

Teaching Law With Online Role-Playing Simulations, Ira Nathenson

Ira Steven Nathenson

This document contains materials prepared for the summer 2011 conference of the Institute for Law Teaching and Learning held at New York Law School. The concise materials include: a listing of useful online tools; documentation for a miniature simulation; suggested components of an "associate" case file; methodology for formative and summative evaluation; and a sample scoresheet incorporating all ten MacCrate skills. A summary of the presentation is provided below: Live websites provide a dynamic “sandbox” for role-playing simulations that cast students as “lawyers” acting for fictional clients. Such simulations, initially crafted for a Cyberlaw class, can also be used in …

Whose Body Is It Anyway? Human Cells And The Strange Effects Of Property And Intellectual Property Law, Robin C. Feldman

Robin C Feldman

El "Product Placement" En El Cine, Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq.

Rodolfo C. Rivas

The authors discuss briefly the history of product placement in film citing several examples. Then, they analyze the current state of regulation and look forward at what lies ahead, as product placement has become ingrained in the entertainment industry.///////////////////////////////////////////////////////////////////////////////////////////////Los autores analizan de una forma breve la historia del emplazamiento de productos o product placement en el cine, utilizando varios ejemplos. Después se adentran en el estado actual de la regulación y miran hacia el futuro de la industria.

Bilski V. Kappos: Everything Old Is New Again, Joe Miller

Scholarly Works

My goal in this brief Essay is to introduce the symposium papers by describing the basics of the Bilski case. I also offer a brief thought about where interested observers might turn next in the U.S. Court of Appeals for the Federal Circuit's § 101 jurisprudence for insights about how that court may implement Bilski's unmistakable revival of Benson and Fook. Specifically, now that the 15-year Alappat/State Street misadventure, with its patent-maximizing "useful, concrete, and tangible result" standard, has come to an end, it is time to revisit the reasoning and results in a rich trove of cases from the …

Recent Developments In Intellectual Property Law In Nigeria, Ufuoma Barbara Akpotaire

Ufuoma Barbara Akpotaire

Key Point – This article provides an overview of the developments in the field of Intellectual Property (IP) in Nigeria and highlights key issues in 10 recent judgments on IP Law in Nigeria. The cases are organized thematically according to the type of Intellectual Property Rights (IPRs) protected under the Nigerian legal system such as trademarks, copyrights, patents, and designs. The decision to pen this Article is borne out of a conversation with a colleague in New York, who seemed surprised to learn that I had worked as an IP lawyer in Nigeria. My colleague was aware of the existence …

Strategies For Promoting Green Energy Innovation, Deployment, & Technology Transfer, Robert V. Percival

Robert Percival

This paper surveys various strategies for promoting the development and deployment of green energy technologies.

Transparent And Commercialized?: Managing The Public-Private Model For Data Production And Use, Shubha Ghosh

Shubha Ghosh

This Article examines the relationship between two trends: the move towards transparency in government data and information and the increasing commercialization of data through social network and other sites. The author presents a normative framework for reconciling these two trends, analyzes the legal implications of this normative framework, and examines three case studies: the private use of government real estate assessment records, the creation of websites like data.gov, and governmental protection of databases. The Article concludes with a proposal for an open source licensing model for data and information.

The Patent System And Climate Change, Joshua Sarnoff

College of Law Faculty

The amount of greenhouse gas emissions and consequent climate changes and social responses will depend substantially upon the rapid development and widespread dissemination of a wide variety of new mitigation and adaptation technologies. The international approach adopted by the UN Framework Convention on Climate Change in Cancun will focus the worldwide innovation system more closely on private funding and markets, and thus on the acquisition of patents at the front end of the coming innovation pipeline. The choice to rely on private markets and patents is highly debatable. But it is certain to create substantial tensions for the patent system …

Acta's Constitutional Problem: The Treaty That Is Not A Treaty (Or An Executive Agreement), Sean Flynn

Joint PIJIP/TLS Research Paper Series

The planned entry of the U.S. into the Anti-Counterfeiting Trade Agreement (ACTA) poses a unique Constitutional problem. The problem is that the President lacks constitutional authority to bind the U.S. to the agreement without congressional consent; but that lack of authority may not prevent the U.S. from being bound to the agreement under international law. If the administration succeeds in its plan, ACTA may be a binding international treaty (under international law) that is not a treaty (under U.S. Constitutional law).

Franquicia Maestra (Master Franchise), Rodolfo C. Rivas Rea Esq., Marco A. Vargas Iñiguez Esq.

Rodolfo C. Rivas

The authors focus on how the Master Franchise agreement provides a solid legal strategy to expand a successful franchise beyond domestic borders.//////////////////////////////////////////////////Los autores analizan como el contrato de Master Franquicia proporciona una sólida estrategia legal para expandir una exitosa franquicia más allá de las fronteras nacionales.

Patent Eligible Medical And Biotechnology Inventions After Bilski, Prometheus, And Myriad, Joshua Sarnoff

College of Law Faculty

In Bilski v. Kappos, the U.S. Supreme Court continued to require that patentable subject matter eligibility determinations under Section 101 be made by reference to three historic, categorical exclusions, for scientific principles, natural phenomena, and abstract ideas. This excluded subject matter must be treated as if already known even when newly discovered by the applicant. Unlike in other jurisdictions, the excluded subject matter thus cannot contribute creativity to the claimed inventions, either for eligibility or for patentability evaluations. The Federal Circuit has reluctantly applied eligibility doctrine after Bilski, holding in Prometheus v. Mayo that claims to treatment methods applying the …

Patent Eligible Inventions After Bilski: History And Theory, Joshua Sarnoff

College of Law Faculty

The U.S. Supreme Court has continued to require that patentable subject matter eligibility determinations under Section 101 be made by reference to three historic, categorical exclusions, for scientific principles, natural phenomena, and abstract ideas, which must be treated as if already known even when newly discovered by the applicant. Various thoughtful scholars have alternatively urged that these exclusions from the patent system should be viewed restrictively or that eligibility decisions should be avoided. But these scholars underappreciate the benefits of categorical exclusions and particularly of treating them as if they were already known prior art, and in any event the …

The Ip Law Book Review, Vol. 1 #2, February 2011, William T. Gallagher, Chester Chuang

Intellectual Property Law

Reviews and Reviewers:

THE PUBLIC DOMAIN: ENCLOSING THE COMMONS OF THE MIND by James Boyle. Reviewed by Julie Cromer Young, Thomas Jefferson School of Law

GENE PATENTS AND COLLABORATIVE LICENSING MODELS: PATENT POOLS, CLEARINGHOUSES, OPEN SOURCE MODELS AND LIABILITY REGIMES edited by Geertrui Van Overwalle. Reviewed by J. Jonas Anderson, Microsoft Research Fellow Berkeley Center for Law & Technology

VIRTUAL JUSTICE: THE NEW LAWS OF ONLINE WORLDS, by Greg Lastowka. Reviewed by William K. Ford, The John Marshall Law School

THE SOUL OF CREATIVITY: FORGING A MORAL RIGHTS LAW FOR THE UNITED STATES, by Roberta Rosenthal Kwall. Reviewed by Shubha …

Book Review Of Intellectual Property And Human Development: Current Trends And Future Scenarios, Benjamin J. Keele

Library Staff Publications

No abstract provided.

The Judicial Role In Trademark Law, Michael Grynberg

College of Law Faculty

This article considers the judicial role in developing trademark law. The issue is important because proposals for trademark reform often rest on expansive conceptions of judicial authority. In thinking about trademark reform, we should broaden our perspective to include considerations of what we want from the law in general. Our answer to the question of what judges applying the Lanham Act should do may vary depending on whether we respond as subjects of trademark law (i.e., as consumers or sellers), as litigants to a trademark action, or as third parties whose focus is not on trademark law, but the general …

The Creativity Effect (With C. Sprigman), Christopher J. Buccafusco

All Faculty Scholarship

No abstract provided.

A Sui Generis Regime For Traditional Knowledge: The Cultural Divide In Intellectual Property Law, J. Janewa Oseitutu

Faculty Publications

To some extent, traditional knowledge can be protected under various intellectual property laws, but there is no effective international legal protection for this subject matter. This has led to proposals for a sui generis regime to protect traditional knowledge. The precise contours of the right are yet to be determined but a sui generis right could include perpetual protection. It could also result in protection for historical communal works and for knowledge that may be useful but that is not inventive according to the standards of intellectual property law.

Developing countries have been more supportive of an international traditional knowledge …