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Full-Text Articles in Law

The First Amendment Implications Of Copyright's Double Standard, Raymond Shih Ray Ku Jan 2018

The First Amendment Implications Of Copyright's Double Standard, Raymond Shih Ray Ku

Faculty Publications

Beginning with a simple question, “What’s the big deal? It’s just entertainment,” this Article argues that copyright law restricts more than just entertainment - it restricts freedom of artistic expression. Despite copyright’s facial neutrality, courts have interpreted otherwise neutral rules to subject authors to a double standard for expression. Through a series of doctrinal contradictions and hypocrisies, copyright singles out “just entertainment,” imposing greater restrictions upon the freedom of those authors relative to all other authors. By discriminating against “entertainment,” the current doctrine violates its own fundamental tenet of non-discrimination. Moreover, by selectively restricting how authors may choose to engage …

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The Limits Of Copyright Office Expertise, Aaron K. Perzanowski Jan 2018

The Limits Of Copyright Office Expertise, Aaron K. Perzanowski

Faculty Publications

The mismatch between the expanding administrative and regulatory obligations of the United States Copyright Office and its limited institutional expertise is an emerging problem for the copyright system. The Office’s chief responsibility—registration and recordation of copyright claims—has taken a back seat in recent years to a more ambitious set of substantive rulemakings and policy recommendations. As the triennial rulemaking under the Digital Millennium Copyright Act highlights, the Office is frequently called upon to answer technological questions far beyond its plausible claims of subject matter expertise. This Article traces the Office’s history, identifies its substantial but discrete areas of expertise, and …

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The Dtsa At One: An Empirical Study Of The First Year Of Litigation Under The Defend Trade Secrets Act, David S. Levine, Christopher B. Seaman Jan 2018

The Dtsa At One: An Empirical Study Of The First Year Of Litigation Under The Defend Trade Secrets Act, David S. Levine, Christopher B. Seaman

Scholarly Articles

This article represents the first comprehensive empirical study of the Defend Trade Secrets Act (“DTSA”), the law enacted by Congress in 2016 that created a federal civil cause of action for trade secret misappropriation. The DTSA represents the most significant expansion of federal involvement in intellectual property law in at least 30 years. In this study, we examine publicly-available docket information and pleadings to assess how private litigants have been utilizing the DTSA. Based upon an original dataset of nearly 500 newly-filed DTSA cases in federal court, we analyze whether the law is beginning to meet its sponsors’ stated goals …

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A Bridge Between Copyright And Patent Law: Towards A Modern-Day Reapplication Of The Semiconductor Chip Protection Act, Timothy T. Hsieh Jan 2018

A Bridge Between Copyright And Patent Law: Towards A Modern-Day Reapplication Of The Semiconductor Chip Protection Act, Timothy T. Hsieh

Fordham Intellectual Property, Media and Entertainment Law Journal

This Paper analyzes the history of the Semiconductor Chip Protection Act (SCPA), 17 U.S.C. §§ 901–914, and asks why the statute is so seldom used in intellectual property litigation. Afterwards, this Paper makes the argument that the SCPA should be used more in intellectual property litigation, perhaps in tandem with patent litigation, and can be a viable form of protection for semiconductor micro-fabrication companies or integrated circuit design companies engaged in pioneering innovations within the cutting-edge field of semiconductor technology.

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A View Of Copyright From The Digital Ground, Andres Sawicki Jan 2018

A View Of Copyright From The Digital Ground, Andres Sawicki

Articles

No abstract provided.

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Resolving A Copyright Law Circuit Split: The Importance Of A De Minimis Exception For Sampled Sound Recordings, Claire Mispagel Jan 2018

Resolving A Copyright Law Circuit Split: The Importance Of A De Minimis Exception For Sampled Sound Recordings, Claire Mispagel

Saint Louis University Law Journal

No abstract provided.

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Top Tens In 2017: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn Jan 2018

Top Tens In 2017: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The Supreme Court loosened the grip of patentees on their products, holding that contractual restrictions on patented product are ineffective to preserve patent rights. The Court also loosened the grip of the Eastern District of Texas on patent cases, announcing a narrower standard that will send more cases to Delaware. The Federal Circuit cases piled up on applying the Alice standard to filter nonpatentable abstract ideas from patentable inventions. Meanwhile, even as the constitutionality of the Patent Trial and Appeals Board pends before the Supreme Court, hundreds of PTAB decisions on the validity of patents move onward to the Federal …

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Dr. Seuss, The Juice And Fair Use Revisited: Two Decades Of Parody And Satire In Copyright Law, Tyler T. Ochoa Jan 2018

Dr. Seuss, The Juice And Fair Use Revisited: Two Decades Of Parody And Satire In Copyright Law, Tyler T. Ochoa

Faculty Publications

This essay will summarize some of the salient features and arguments made in the original article. It will also analyze copyright infringement cases in the last 20 years applying the fair use doctrine to parody and satire.

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Online Piracy Of Live Sports Telecasts In India, Seemantani Sharma Jan 2018

Online Piracy Of Live Sports Telecasts In India, Seemantani Sharma

Marquette Sports Law Review

None

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Copyright For Creators: Bridging Law And Practice, Carla-Mae Crookendale, Hillary Miller, Sue Robinson Jan 2018

Copyright For Creators: Bridging Law And Practice, Carla-Mae Crookendale, Hillary Miller, Sue Robinson

VCU Libraries Faculty and Staff Publications

Everyone is a publisher, a maker, or a creator in the digital age, and understanding copyright is a foundational skill. Artists, designers, and arts scholars need acute awareness of the legal landscape and fair use. To help meet this need, Virginia Commonwealth University (VCU) Libraries, in concert with the VCU School of the Arts, created a series of programs on the nuances of copyright for artists, designers, and art scholars.

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Intellectual Property And Culture, Lucie Guibault Jan 2018

Intellectual Property And Culture, Lucie Guibault

Articles, Book Chapters, & Popular Press

This paper takes a critical look at the interaction between intellectual property law and culture using three examples, namely: 1) the need to preserve and disseminate culture, through the recognition of cultural heritage institutions' vital role in society; 2) the need to maintain culture from depreciation, through the safeguard of a strong public domain; and 3) the need to let culture evolve, through the protection of Traditional Cultural Expressions (TCE's). This brief study shows that, although IP rights can be said to afford useful protection to objects of culture – taken in the narrow sense of ‘culture’, they can also …

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Owning The Right To Open Up Access To Scientific Publications, Lucie Guibault Jan 2018

Owning The Right To Open Up Access To Scientific Publications, Lucie Guibault

Articles, Book Chapters, & Popular Press

Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. …

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Licensing & Law Who Owns An Avatar?, Tyler T. Ochoa, Jaime Banks Jan 2018

Licensing & Law Who Owns An Avatar?, Tyler T. Ochoa, Jaime Banks

Faculty Publications

Both players and game developers have great influence over how avatars—via their assembled components— manifest in digital game play. Developers craft their foundational platforms and draw on those infrastructures to craft dynamic code that enables movements, appearances, and abilities. But those potentials call into question whether avatars are avatars until they are played—players click avatars into being, customize their bodies and attire, drive their actions and interactions, and sometimes bring them outside the game world through physical representations. So, given avatars’ joint reliance on developers and players, and given legal frameworks such as copyright law, who really “owns” a video …

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Preserving Film Preservation From The Right Of Publicity, Christopher J. Buccafusco, Jared Vasconcellos Grubow, Ian J. Postman Jan 2018

Preserving Film Preservation From The Right Of Publicity, Christopher J. Buccafusco, Jared Vasconcellos Grubow, Ian J. Postman

Faculty Scholarship

No abstract provided.

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To Be, Or Not To Be: The Potential Consequences Of Granting Copyright Protection For Stage Directions, Laura Temme Jan 2018

To Be, Or Not To Be: The Potential Consequences Of Granting Copyright Protection For Stage Directions, Laura Temme

Cybaris®

No abstract provided.

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Set Your Settings On Private? Copyright In Era Of Social Media Usage, Maddie Wagner Jan 2018

Set Your Settings On Private? Copyright In Era Of Social Media Usage, Maddie Wagner

Cybaris®

No abstract provided.

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Good Times Bad Times For The Music Industry: "If The Levee Breaks" It Might Leave Musicians "Dazed And Confused", Nathaniel J. Ajouri Jan 2018

Good Times Bad Times For The Music Industry: "If The Levee Breaks" It Might Leave Musicians "Dazed And Confused", Nathaniel J. Ajouri

Cybaris®

No abstract provided.

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Defense Against The Dark Arts Of Copyright Trolling, Matthew Sag, Jake Haskell Jan 2018

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

Faculty Publications & Other Works

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 …

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Higher Education And The Dmca, James Gibson, Christopher A. Cotropia Jan 2018

Higher Education And The Dmca, James Gibson, Christopher A. Cotropia

Law Faculty Publications

The nearly twenty-year history of the Digital Millennium Copyright Act’s safe harbor provisions has been marked by criticism from content owners, online service providers, and end users. Content owners complain about the cost of monitoring online content and sending takedown notices. Online service providers complain about the cost of receiving and processing the notices. And end users complain about their legitimate use of copyrighted works being subject to DMCA takedown. Colleges and universities have been at the forefront of this controversy; as providers of online services to their students, they have been a focus of both Congress and copyright owners. …

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Critical Race Ip, Deidre Keller Jan 2018

Critical Race Ip, Deidre Keller

Journal Publications

In this Article, written on the heels of Race + IP 2017, a conference we co-organized with Amit Basole1 and Jessica Silbey,we propose and articulate a theoretical framework for an interdisciplinary movement that we call Critical Race Intellectual Property (Critical Race IP).Specifically, we argue that given trends toward maximalist intellectual property policy, it is now more important than ever to study the racial investments and implications of the laws of copyright, trademark, patent, right of publicity, trade secret, and unfair competition in a manner that draws upon Critical Race Theory (CRT). Situating our argument in a historical context, we articulate …

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Technological Rights Accretion, Kristelia A. García Jan 2018

Technological Rights Accretion, Kristelia A. García

Publications

No abstract provided.

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Famous On The Internet: The Spectrum Of Internet Memes And The Legal Challenge Of Evolving Methods Of Communication, Stacey M. Lantagne Jan 2018

Famous On The Internet: The Spectrum Of Internet Memes And The Legal Challenge Of Evolving Methods Of Communication, Stacey M. Lantagne

University of Richmond Law Review

No abstract provided.

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A (Nude) Picture Is Worth A Thousand Words — But How Many Dollars?: Using Copyright As A Metric For Harm In "Revenge Porn" Cases, J. Remy Green Jan 2018

A (Nude) Picture Is Worth A Thousand Words — But How Many Dollars?: Using Copyright As A Metric For Harm In "Revenge Porn" Cases, J. Remy Green

Faculty Scholarship

So-called “Revenge Porn” — pornography published without the subject’s permission — is a growing issue. While much discussion exists about how best to outlaw the practice, less has been said about precisely how to measure the harm done. This paper is grounded in an in-depth analysis of the particular way that the Federal Sentencing Guidelines prioritize financial harms and non-financial harms, specifically looking at how many dollars of harm it takes to buy each additional sentencing point. I graph the enforcement priorities for financial and non-financial harm using the numbers federal agencies use for the value of a statistical life. …

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Claiming Design, Mark P. Mckenna Jan 2018

Claiming Design, Mark P. Mckenna

Journal Articles

Design stands out among intellectual property subject matter in terms of the extent of overlapping protection available. Different forms of intellectual property usually protect different aspects of a product. In the design context, however, precisely the same features are often subject to design patent, trademark, and copyright protection-and parties commonly claim more than one of those forms. Yet, as we show, the claiming regimes of these three forms of design protection differ in significant ways: the timing of claims; claim format (particularly whether the claims are visual or verbal); the multiplicity of claims (whether and how one can make multiple …

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All For Copyright Stand Up And Holler! Three Cheers For Star Athletica And The U.S. Supreme Court’S Perceived And Imagined Separately Test, David E. Shipley Jan 2018

All For Copyright Stand Up And Holler! Three Cheers For Star Athletica And The U.S. Supreme Court’S Perceived And Imagined Separately Test, David E. Shipley

Scholarly Works

In March 2017 the United States Supreme Court held in Star Athletica L.L.C. v. Varsity Brands Inc. that an artistic feature incorporated into the design of a useful article could be protected by copyright when that feature could be perceived as a two- or three-dimensional work of art separate from the useful article, and imagined separately as a protectable pictorial, graphic, or sculptural work. This two-part test replaces a variety of tests which courts and commentators proposed and applied during the last 40 years. The Star Athletica decision is predicted to be a boon to the fashion and apparel industry, …

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Preserving Film Preservation From The Right Of Publicity, Christopher Buccafusco, Jared Vasconcellos Grubow, Ian J. Postman Jan 2018

Preserving Film Preservation From The Right Of Publicity, Christopher Buccafusco, Jared Vasconcellos Grubow, Ian J. Postman

Cardozo Law Review de•novo

In this comment, we argue that whatever courts and legislatures decide to do about the other issues raised by digital animation, they should preserve the ability to use digital technology to restore and remaster existing works. In this case, at least, the benefits of digital reanimation thoroughly swamp any possible costs (and frankly, we have a hard time finding any meaningful costs). Courts and legislators should ensure that publicity rights are never allowed to trump society’s interest in having access to already created works of culture.

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The Limits Of International Copyright Exceptions For Developing Countries, Ruth L. Okediji Jan 2018

The Limits Of International Copyright Exceptions For Developing Countries, Ruth L. Okediji

Vanderbilt Journal of Entertainment & Technology Law

The relationship between intellectual property (IP) protection and economic development is not better understood today than it was five decades ago at the height of the independence era in the Global South. Development indicators in many developing and least-developed countries reflect poorly in precisely the areas that are most closely associated with copyright law's objectives, such as promoting democratic governance, facilitating a robust marketplace of ideas, fostering domestic markets in cultural goods, and improving access to knowledge. Moreover, evidence suggests that copyright law has not been critical to the business models of the creative sectors in leading emerging markets. These …

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H&M V. Revok: Use Of Street Art In Commercial Ad Campaigns, Richard H. Chused Jan 2018

H&M V. Revok: Use Of Street Art In Commercial Ad Campaigns, Richard H. Chused

Other Publications

No abstract provided.

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A Transformative Use Taxonomy: Making Sense Of The Transformative Use Standard, David E. Shipley Jan 2018

A Transformative Use Taxonomy: Making Sense Of The Transformative Use Standard, David E. Shipley

Scholarly Works

The transformative use standard, which is an important aspect of copyright law’s fair use doctrine, has been confusing and uncertain since 1994 when it was first introduced by the United States Supreme Court in Campbell v. Acuff-Rose Music. To try to make some sense of this standard, this article extends the work of several scholars who have argued that the massive amount of fair use case law generally divides itself into categories, patterns or policy clusters which have their own internal coherence. This article contends that these observations apply as well to transformative use decisions more particularly, which similarly fit …

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Recognizing The Relevance Of Human Rights: The Application Of The Presumption Of Conformity In The Context Of Copyright, Graham Reynolds Jan 2018

Recognizing The Relevance Of Human Rights: The Application Of The Presumption Of Conformity In The Context Of Copyright, Graham Reynolds

All Faculty Publications

This article discusses the application of the presumption of conformity with international law in the context of copyright. Although Canadian courts have applied the presumption of conformity in a number of copyright cases, no Canadian court has explicitly considered, under the presumption of conformity, whether interpretations of provisions of the Copyright Act are consistent with, or reflect the values and principles of, international human rights treaties that Canada has signed and ratified. In this article, I will argue that Canadian courts applying the presumption of conformity in the context of copyright should do so with reference to Canada’s obligations under …

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