Law Commons^™

United States Antitrust Policy In An Age Of Ip Expansion, Herbert J. Hovenkamp

All Faculty Scholarship

The idea that there is a tension between antitrust and the intellectual property laws is readily exaggerated. The tension that exists results mainly from our uncertainty about the optimal amount and scope of IP protection. In general, antitrust draws clearer lines than intellectual property law does, although one should not push the point too far. Antitrust policy as manifested in the courts has achieved a fair amount of consensus today. By contrast, deep uncertainty remains about fundamental questions concerning the socially optimal outcome of IP disputes. In addition, while the antitrust statutes are for the most part public regarding provisions …

Re-Reifying Data, James Gibson

Law Faculty Publications

There's a war on between those who view digital technology as a reason to expand intellectual property law and those who oppose this expansion. One front in the war is technological: the pro-expansionists enclose their products in restrictive code, which the anti-expansionists circumvent and hack. A second is legislative: the pro-expansionists seek extended copyright duration, favorable changes to contract law, and other new legal entitlements, while the anti-expansionists lobby for the opposite. And a third front is a combination of the first two: it is technological. On this battlefield, the pro-expansionists use the law to fortify their technological protections. But …

Assessing The Barriers To Universal Antiretroviral Treatment Access For Hiv/Aids In South Africa, Mary Beth Walker

Duke Journal of Comparative & International Law

No abstract provided.

Nickled And Dimed: The Dispute Over Intellectual Property Rights In The Bluenose Ii, Teresa Scassa

Dalhousie Law Journal

The Bluenose Schooner forms part of the folk history of Nova Scotia, and is a Canadian icon. Popular assumptions that Its name and image formed part of the public domain were put to the test in 2003 when the Bluenose II Preservation Trust Society brought suit against a Halifax business for Infringement of its official marks, trademarks and copyrights relating to the ship and its name. The litigation garnered local and national media attention, and the provincial government soon became involved in the dispute In this article, the author provides some background to the dispute before moving on to consider …

Cabining Intellectual Property Through A Property Paradigm, Michael A. Carrier

Duke Law Journal

One of the most revolutionary legal changes in the past generation has been the “propertization” of intellectual property (IP). The duration and scope of rights expand without limit, and courts and companies treat IP as absolute property, bereft of any restraints. But astonishingly, scholars have not yet recognized that propertization also can lead to the narrowing of IP. In contrast to much of the literature, which criticizes the propertization of IP, this Article takes it as a given. For the transformation is irreversible, sinking its tentacles further into public and corporate consciousness (as well as the IP laws) with each …

Seventeen Famous Economists Weigh In On Copyright: The Role Of Theory, Empirics, And Network Effects, Stan Liebowitz, Stephen Margolis

ExpressO

The case of Eldred v. Ashcroft, which sought to have the Copyright Term Extension Act (CTEA, aka Sonny Bono Copyright Act) declared unconstitutional, was recently decided by the Supreme Court. A remarkable group of seventeen economists including five Noble laureates, representing a wide spectrum of opinion in economics, submitted an amicus curie brief in support of Eldred. The economists condemned CTEA on the grounds that the revenues earned during the extension are so heavily discounted that they have almost no value, while the extended protection of aged works creates immediate monopoly deadweight losses and increases the costs of creating new …

The Hegemony Of The Copyright Treatise, Ann Bartow

Ann Bartow

This Article asserts that major conceptions about the appropriate structure, texture, and span of copyright protections and privileges have been fashioned by copyright treatises, particularly the various editions of Nimmer on Copyright. Copyright treatises function in concert with the machinations of Congress, the courts, and custom, but their role is not often scrutinized.

Because copyright treatises typically do a far better job than Congress or the courts of explicating copyright law in straightforward and accessible language, such treatises can not only communicate the copyright law, but also influence its development and direction. Policy makers no doubt understand that content owners …

The End Of Notice: Secrets And Liens In Commercial Finance Law, Jonathan C. Lipson

ExpressO

This article explores important recent changes in the way that we treat personal property in commercial finance transactions. Among other things, these changes reduce or eliminate the obligation to give notice of interests in personal property when it is used in commercial finance transactions (as, e.g., collateral for a loan).

A principal purpose of notice-filing has been to deter the creation of secret liens, interests in property that are neither recorded nor otherwise readily observable. Secret liens are universally castigated as abhorrent.

Yet, two recent sets of legislative developments suggest that we may care much less about the problem of …

The Jekyll And Hyde Story Of International Trade: The Supreme Court In Phrma V. Walsh And The Trips Agreement, Srividhya Ragavan

University of Richmond Law Review

No abstract provided.

The Law Of Trade Secrets: Toward A More Efficient Approach, Jon Chally

Vanderbilt Law Review

Trade secret law must efficiently protect that which can be considered a trade secret. Were the law to provide too little protection, information protected as a trade secret would not be created. Were the law to provide too much protection, competition would be unnecessarily stifled. Only efficient protection, meaning neither too little nor too much, appropriately addresses the unique nature of trade secrets as intellectual property. Such a conclusion becomes increasingly necessary given the rising import of trade secret law in the spectrum of intellectual property.

"It is the policy of the law, for the advantage of the public, to …

A Chose By Any Other Name: Domain Names As A Security Interest, Andrew B. Cochran

Canadian Journal of Law and Technology

There has been increasing study of the issues involved in using intellectual property as a security interest, but little corresponding consideration of domain names. The ascendancy in value of domain names to modern business increases their usefulness as a security interest to lenders and borrowers alike. Their use in this respect appears not to be weighed down by two of the most difficult issues facing intellectual property, namely conflicting jurisdiction between federal statutory interests and provincial property interests, together with establishing more readily acceptable methods of valuation. However, there is ambiguity about the actual form of ownership interest involved with …

Building A Better Bounty: Litigation-Stage Rewards For Defeating Patents, Joe Miller

Scholarly Works

A patent challenger who defeats a patent wins a prize that it must share with the whole world, including all its competitors. This forced sharing undermines an alleged infringer's reason for fighting the patent case to the finish - especially if the patent owner offers an attractive settlement. Too many settlements, and too few definitive patent challenges, are the result. A litigation-stage bounty would correct this defect in patent litigation's basic framework, for it would provide cash prizes to successful patent challengers that they alone would enjoy. After briefly describing the free rider problem with inventions that patent law attempts …

Bucking The Trend: The Unsupportability Of Index Providers' Imposition Of Licensing Fees For Unlisted Trading Of Exchange Traded Funds, Peter N. Hall

Vanderbilt Law Review

Exchange traded funds (ETFs) are popular investment products that have recently generated substantial investment press, several new regulations, huge earnings for the securities markets, and potential legal conflicts that will likely lead to major litigation. ETFs are derivative securities that represent ownership in funds, unit investment trusts, or depositary receipts with portfolios of securities designed to track the performance and dividends of specific securities indices.' ETFs track indices by holding a representative sampling of securities in the index, thus approximating investment results of the index as a whole. They may or may not hold all the stocks in a particular …

Reform(Aliz)Ing Copyright, Chris Sprigman

ExpressO

Reform(aliz)ing Copyright looks at the effect of the removal from the U.S. copyright laws of copyright formalities like registration, notice, and renewal. Beginning in 1976, the U.S. moved from a “conditional” copyright system that premised the existence and continuation of copyright on compliance with formalities, to an “unconditional” system, where copyright arises automatically when a work is “fixed”. Richard Epstein has aptly characterized these changes as “copyright law . . . flipping over from a system that protected only rights that were claimed to one that vests all rights, whether claimed or not.” That is a fundamental shift in any …

A Malpractice Suit Waiting To Happen: The Conflict Between Perfecting Security Interests In Patents And Copyrights (A Note Of Peregrine, Cybernetic And Their Progeny), R. Scott Griffin

Georgia State University Law Review

No abstract provided.

National Treatment, National Interest And The Public Domain, Margaret Ann Wilkinson

Law Publications

The concept of the "public domain" is a powerful rhetorical element in he policy debates involving intellectual property. But is it a stable and useful concept for analyzing information issues? Can the notion of the public domain and the concept of the information commons be separated? Is the notion of the public domain merely another way of expressing the public interest?

This paper canvassed the literature, seeking a theoretically consistent definition for public domain that was equally applicable across the copyright, trademark and patent spheres. The analysis demonstrated that there is no such construct.

The paper also reviews the findings …

The Ims Health Decision: A Triple Victory, Estelle Derclaye

Estelle Derclaye

No abstract provided.

The Ims Health Decision: A Triple Victory, Estelle Derclaye

Estelle Derclaye

No abstract provided.

Taxing The New Intellectual Property Right, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

Current, albeit arbitrary, rules exist governing the tax treatment of traditional forms of intellectual property, such as patents, trade secrets, copyrights, trademarks, and trade names. While tax principles exist for these traditional intellectual property and intangible rights, specific tax rules do not exist for new intellectual property rights, such as domain names, that are emerging with the arrival of global electronic commerce transactions on the Internet. This article explores the proper tax treatment of domain name registration and acquisition costs, addressing these parallel questions? Are domain names merely variations of traditional forms of intellectual property and other intangible rights to …

Contrived Conflicts: The Supreme Court Versus The Basics Of Intellectual Property Law, F. Scott Kieff

William Mitchell Law Review

No abstract provided.

Intellectual Property And Indigenous Peoples: Adapting Copyright Law To The Needs Of A Global Community, Megan M. Carpenter

Law Faculty Scholarship

The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples' rights to protection and ownership of culturally specific properties. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership. But whatever their origins, those laws have been, and currently are, the primary vehicle for the protection of artistic, literary, and scientific works worldwide. To segregate indigenous interests from this international legal regime, …

The Hegemony Of The Copyright Treatise, Ann Bartow

Law Faculty Scholarship

This Article asserts that major conceptions about the appropriate structure, texture, and span of copyright protections and privileges have been fashioned by copyright treatises, particularly the various editions of Nimmer on Copyright. Copyright treatises function in concert with the machinations of Congress, the courts, and custom, but their role is not often scrutinized.

Because copyright treatises typically do a far better job than Congress or the courts of explicating copyright law in straightforward and accessible language, such treatises can not only communicate the copyright law, but also influence its development and direction. Policy makers no doubt understand that content owners …

Patent Politics, Michael Henry Davis

Law Faculty Articles and Essays

To observe that so-called intellectual property (IP) flowered in the late twentieth century, even supplanting, to a large extent, the place of real and tangible personal property in terms of corporate, if not individual, wealth, is almost trite. Since IP has become the bedrock of most commercial wealth, especially in international trade, and since international trade is, or is about to become, the center of most commercially valuable trade, a comprehensive understanding of IP has become essential. Instead of being the reserve of technicians, the field demands a full examination by jurists and the larger society.Although IP literature has blossomed, …

Virtual Property: The Challenges Of Regulating Intangible, Exclusionary Property Interests Such As Domain Names, David Nelmark

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

How The Established Business Relationship Exemption To The National Do-Not-Call Registry Forces Consumers To Pay For Unwanted Sales Calls, Shannon D. Torgerson

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Revisiting Standard-Setting Organizations' Patent Policies, Kraig A. Jakobsen

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

New Strategies For Owners Of Discontinued Brands, David S. Ruder

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Taxing The New Intellectual Property Right, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

How should the acquisition of domain names be treated under the current tax regime for intellectual property? This article proposes that domain names that function as source identifiers should be treated under the tax regime applicable to trademarks. Generic domain names, however, possess inherent goodwill that dictates different treatment.

Communication Breakdown: The Recording Industry's Pursuit Of The Individual Music User, A Comparison Of U.S. And E.U. Copyright Protections For Internet Music File Sharing, Ryan Bates

Northwestern Journal of International Law & Business

While music file sharing over the internet has become a common practice in recent years, record companies blame the illegal swapping for a 31% drop in compact disk sales since mid-2000. In an ever-evolving attempt to gain a stronghold on the distribution of digital music via the internet, the recording industry recently began filing lawsuits against the individual internet "file sharer" in both the United States the European Union.

This comment examines the development of copyright protections in the United States and the European Union, including recent legislation under each system, and argues that a balance of rights and technical …

Book Review [Steal This Idea: Intellectual Property Rights And The Corporate Confiscation Of Creativity], Santa Clara Law Review

Santa Clara Law Review

No abstract provided.