Law Commons^™

From Bards To Search Engines: Finding What Readers Want From Ancient Times To The World Wide Web, Stephen Maurer

Stephen M. Maurer

Copyright theorists often ask how incentives can be designed to create better books, movies, and art. But this is not the whole story. As the Roman satirist Martial pointed out two thousand years ago, markets routinely ignore good and even excellent works. The insight reminds us that incentives to find content are just as necessary as incentives to make it. Recent social science research explains why markets fail and how timely interventions can save deserving titles from oblivion. This article reviews society’s long struggle to fix the vagaries of search since the invention of literature. We build on this history …

Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen

Ping-Hsun Chen

On September 16, 2011, the American patent system started a new era because of the enactment of the Leahy-Smith America Invents Act (“AIA”). 35 U.S.C. § 299 was enacted to limit district court’s power to permit joinder of unrelated infringers as defendants in a single lawsuit. Before that, district courts apply Rule 20 of the Federal Civil Procedure. The Eastern District of Texas had permitted joinder only because the same patent was infringed. By introducing § 299, Congress intended to abrogate such approach. Later, the Federal Circuit in In re EMC limited the practice of Rule 20 and required a …

Adopting Subsequent Remuneration Right In Chinese Copyright Law, Xi Chen

Xi Chen

One heavily and contentiously argued clause in Chinese Copyright Law amendments drafts focuses on the practicality of granting authors of audiovisual works the legal right to collect subsequent remunerations (SRR), when their works are reused in subsequent exploitations.

With the rapid increase of media channels for the Chinese movie industry, and other entertainment industries relying on a heavy usage of audiovisual work, authors demand that they should be entitled to the profit earned from derivative markets and other media channel beyond the first intended market. In order to balance the conflicting interest between the author and the producer, and to …

Literature’S Idea-Expression Distinction: Drawing A Line With Distinctive Elements Of Alternate Worlds, Joshua Jeng

Joshua Jeng

The line between ideas and expressions in copyright law has never been particularly clear. We want to protect what authors create so that they are motivated to create more, but we want broad concepts to remain free so that others may produce even more works. The distinction concept and an author's take on a concept has always been very difficult to define, even among legal scholars, and has largely remained misunderstood by the average author. However, as derivative works increase in prevalence and economic importance, the need for workable framework for understanding copyright that the lay author can understand is …

The Final Impression Counts - Seeking Common Ground In Design Patent Infringement, Dana Beldiman, Paolo Beconcini

Dana Beldiman

THE FINAL IMPRESSION COUNTS – Seeking Common Ground in Design Patent Infringement

Dana Beldiman*and Paolo Beconcini

Abstract

The visual appearance of products has become an asset of considerable economic value. Litigation surrounding it is increasingly common and has focused IP law on certain tensions that relate to the visual nature of IP assets.

One such area is design patent infringement. Policy mandates that comparison of two similar designs for purposes of evaluating infringement be performed by a notional purchaser, based on the overall impression of a design as whole. However, in performing the analysis courts are tempted to …

The Emergence Of Classical American Patent Law, Herbert Hovenkamp

Herbert Hovenkamp

The Emergence of Classical Patent Law

Abstract

One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce …

The Supreme Assimilation Of Patent Law, Peter Lee

Peter Lee

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court’s recent decisions reflect a project of eliminating “patent exceptionalism” and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as …

Gender Biases In Cyberspace: A Two-Stage Model For A Feminist Way Forward, Shlomit Yanisky-Ravid, Amy Mittelman

Shlomit Yanisky-Ravid Professor of Law

Increasingly, there has been a focus on creating democratic standards and procedures in order to best facilitate open exchange of information and communication online—a goal that fits neatly within the feminist aim to democratize content creation and community. Collaborative websites, such as blogs, social networks, and, as focused on in this Article, Wikipedia, represent both a Cyberspace community entirely outside the strictures of the traditional (intellectual) proprietary paradigm and one that professes to truly embody the philosophy of a completely open, free, and democratic resource for all. In theory, collaborative websites are the solution that social activists, Intellectual Property opponents …

It’S The End Of The Biological Patent World As We Know It, And Consumer Watchdog Feels Fine: How Consumer Watchdog Is Attempting To Kill The Future Of Horticultural Research, George R. Holton

George R Holton

No abstract provided.

The Protection Of Performers Under U.S. Law In Comparative Perspective, Daniel Gervais

Daniel J Gervais

The Garcia v Google case raised fundamental questions about US law as it applies to performed works. This Essay uses a comparative lens to shed some hopefully useful light on the debate. The Essay proceeds essentially in two parts. First, the Essay explores and critiques the international protection of performers’ rights using both history and policy as focal points. The following part describes the protection of performers and other owners of “related rights” in US law and explains the differences that adopting a related rights regime would bring about in the United States.

Information Technology And The Law - Copyright In Cyberspace, Ulf Maunsbach

Ulf Maunsbach

No abstract provided.

Censorship By Intermediary And Moral Rights: Strengthening Authors’ Control Over The Online Expressions Through The Right Of Respect And Integrity, Methaya Sirichit

Methaya Sirichit

The mega intermediaries, the Leviathans of cyberspace, are practicing content discrimination and distortion of speech in the public communication space. These intermediaries operate vast close-walled digital empires that provide both communication platforms as well as an extremely broad range of products and services for billions of people. Consequently, they can easily slip past the deontological regulatory model that relies on a clear-cut determination between passive conduits, on one hand, and content providers or corporate speakers on another. In the United States, the First Amendment’s editorial privilege and the Good Samaritan safe harbors under Section 230 of the CDA shield networked …

Nsfw: An Empirical Study Of Scandalous Trademarks, Megan M. Carpenter

Megan M Carpenter

This project is an empirical analysis of trademarks that have received rejections based on the judgment that they are “scandalous." It is the first of its kind. The Lanham Act bars registration for trademarks that are “scandalous” and “immoral.” While much has been written on the morality provisions in the Lanham Act generally, this piece is the first scholarly project that engages an empirical analysis of 2(a) rejections based on scandalousness; it contains a look behind the scenes at how the morality provisions are applied throughout the trademark registration process. We study which marks are being rejected, what evidence is …

A Preliminary Measure: Retroactive Copyright Term Reduction And The Takings Clause, Eugene V. Beliy

Eugene V Beliy

The current duration of a copyright term under U.S. law is an astounding life of the author plus 70 years. This term length is a product of a series of retroactive extensions enacted by Congress. It is well settled that the term can be retroactively extended--but can it be retroactively reduced? Would Congress violate the Fifth Amendment Takings Clause if it retroactively reduced copyright term without providing just compensation? This paper argues that it would not. First, this paper frames the discussion by analyzing the policy behind Copyright Law and term length. Second, this paper identifies a potential Takings Clause …

Comments On India's Draft National Ipr Policy, Srividhya Ragavan, Brook Baker, Sean Flynn

Srividhya Ragavan

No abstract provided.

Promoting “Academic Entrepreurship” In Europe And The United States: Creating An Intellectual Property Regime To Facilitate The Efficient Transfer Of Knowledge From The Lab To The Patient, Constance Bagley, Christina Tvarno

Constance E. Bagley

In 2014, the European Commission announced the launch of a study of knowledge transfer by public research organizations and other institutes of higher learning “to determine which additional measures might be needed to ensure an optimal flow of knowledge between the public research organisations and business thereby contributing to the development of the knowledge based economy.” As the European Commission has recognized, the EU needs to take action to “unlock the potential of IPRs [intellectual property rights] that lie dormant in universities, research institutes and companies.” This article builds on our earlier work on structuring efficient pharmaceutical public-private partnerships (PPPPs) …

Information Technology And The Law - An Overview Of Issues, Ulf Maunsbach

Ulf Maunsbach

No abstract provided.

Yours, Mine, And Ours: The Development, Management And Protection Of Intellectual Property In Third-Sector Enterprise, Elizabeth Spencer, Francina Cantatore

Francina Cantatore

Effective intellectual property (IP) management is an important aspect of good governance. There has been little research on IP management in the third sector and the challenges faced by these enterprises in developing, managing and protecting IP. This article explores the landscape of IP in third-sector enterprise. It outlines the challenges in developing and managing IP. and the reasons why IP may be under-managed. From a theoretical perspective this article will contribute to the literature available in this field and provide a foundation for further research. Debate about IP taw is polarised, but it is hoped that "a balanced approach …

The Classical Constitution, Herbert Hovenkamp

Herbert Hovenkamp

Conservative and libertarian constitutional writers have often pined for return to a "classical" understanding of American federal and state Constitutions. "Classical" does not necessarily mean "originalist" or "interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, it would …

The Unheightened Reality Of Plausibility Pleading: Identification Of Defendants In Copyright Infringement Claims Using Only An Ip Address Impacts Hundreds Of Thousands, Harmony N. Oswald

Harmony N. Oswald

No abstract provided.

Antitrust And Information Technologies, Herbert Hovenkamp

Herbert Hovenkamp

Technological change strongly affects the use of information to facilitate anticompetitive practices. The effects result mainly from digitization and the many products and processes that it enables. These technologies also account for a significant portion of the difficulties that antitrust law encounters when its addresses intellectual property rights. Changes in the technologies of information also affect the structures of certain products, in the process either increasing or decreasing the potential for competitive harm. For example, digital technology affects the way firms exercise market power, but it also imposes serious measurement difficulties. In purely digital markets intellectual property rights are crucial …

Antitrust And The Patent System: A Reexamination, Herbert Hovenkamp

Herbert Hovenkamp

Since the federal antitrust laws were first passed they have cycled through extreme positions on the relationship between competition law and the patent system. Previous studies of antitrust and the patent system have generally assumed that patents are valid, discrete, and generally of high quality in the sense that they further innovation. As a result, increasing the returns to patenting increases the incentive to do socially valuable innovation. Further, if the returns to the patentee exceed the social losses caused by increased exclusion, the tradeoff is positive and antitrust should not interfere. If a patent does nothing to further innovation, …

Intellectual Property Rights And The Ppsa: Challenges For Interest Holders, Creditors And Practitioners, Francina Cantatore

Francina Cantatore

The Australian Personal Property Securities Act (PPSA) has made significant inroads into traditional norms of dealing with intellectual property (IP) ownership and rights since its introduction in January 2012, the transitional period of two years having ended on 31 January 2014.Registration requirements under the PPSA have significantly affected a range of commercial transactions dealing with personal property, including the interests of lessors and lessees, consignors and consignees, sellers and buyers, licensors and licensees, and lenders and borrowers. This article considers how IP is treated under the PPSA, and how owners and disseminators of IP (and the practitioners who advise them) …

Cases For Lecture 3; Trademarks, Macerata 17 March 2015, Ulf Maunsbach

Ulf Maunsbach

No abstract provided.

Cases For Lecture 4 - Copyright In Cyberspace, Macerata, 8 April 2015, Ulf Maunsbach

Ulf Maunsbach

No abstract provided.

Cases For Lecture 5; Private International Law And The Internet, Macerata 15 April 2015, Ulf Maunsbach

Ulf Maunsbach

No abstract provided.

Copyright Porn Trolls, Wasting Taxi Medallions, And The Propriety Of ‘Property’, Tom W. Bell

Tom W. Bell

What happens when the government creates privileges that have powers rivaling those that the common law accords to property? Recent events in two seemingly unrelated areas suggest a troubling answer to that question. First, in copyright, porn trolls have sued thousands of John Does for allegedly participating in illegal file sharing. These suits evidently seek not judicial vindication but merely the defendants' identities, which the plaintiffs then use to reap settlement payments from guilty and innocent alike. Second, taxi drivers in cities across the world have launched legal, political, and physical attacks against Uber and other networked transportation services, accusing …

Applying Patent-Eligible Subject Matter Restriction, Jonas Anderson

J. Jonas Anderson

Frand V. Compulsory Licensing: The Lesser Of The Two Evils, Srividhya Ragavan

Srividhya Ragavan

No abstract provided.

Abriendo Caminos: Acceso A La Cultura, Educación A Distancia Y Digitalización De Obras En Los Límites Y Excepciones A Los Derechos De Autor, Javier André Murillo Chávez

Javier André Murillo Chávez

No abstract provided.