Law Commons^™

All The Internet's A Stage: Reform Of The Digital Millennium Copyright Act And Broadway's Bootleg Problem, Emma K. Wimberly

Georgia Law Review

Broadway is the cultural epicenter of theatre arts. While Broadway performances are internationally known and hugely profitable, they remain inaccessible to a significant number of fans. The inability to bear the increasing costs of travel, lodging, and tickets leads many fans to turn to bootlegs. Bootlegs are illegal recordings of live performances. They are widely viewed and shared online, and uploaders purposefully work to obscure the illegality of these recordings, allowing them to evade tools designed to combat copyright infringement.

The Digital Millennium Copyright Act (DMCA), enacted in 1998, amended U.S. copyright law to attempt to prevent digital copyright infringement. …

Intellectual Property And “The Lost Year” Of Covid-19 Deaths, Madhavi Sunder, Haochen Sun

Georgetown Law Faculty Publications and Other Works

Protecting intellectual property (IP) is a question of life and death. COVID-19 vaccines, partially incentivized by IP, are estimated to have saved nearly 20 million lives worldwide during the first year of their availability in 2021. However, most of the benefits of this life-saving technology went to high- and upper-middle-income countries. Despite 10 billion vaccines being produced by the end of 2021, only 4 percent of people in low-income countries were fully vaccinated. Paradoxically, IP may also be partly responsible for hundreds of thousands of lives lost in 2021, due to an insufficient supply of vaccines and inequitable access during …

Taming The Wild West: The Time Is Near For Congress To Intervene In Name, Image, And Likeness Deals For Collegiate Athletes, Bradley Kilborn Kilborn

Belmont Law Review

This note proposes a multifaceted approach for congressional intervention in the NIL market. While there are many areas needing NIL regulation in the collegiate athletic market, the most critical area of need for NIL regulation involves the collectives and directives. These entities have formed and operated without any meaningful guardrails since the NCAA permitted student-athletes to be compensated for their NIL. Additionally, they have been able to influence recruiting both at the high school recruit level and in the collegiate athlete transfer portal.

Measuring Follow-On Innovation, Janet Freilich, Sepehr Shahshahani

Faculty Scholarship

How patents affect follow-on innovation is a key question for the patent system. We disaggregate follow-on innovation into activities that infringe patents and others that do not infringe but can be indirectly affected by patents. Replicating an important study using our disaggregated measure, we find that 87 percent of follow-on scientific publications describing patented genes do not constitute patent infringement. Supplementing our empirical strategy with data on patent expiration dates, we find that gene patents which are not close to expiration cause an increase in noninfringing follow-on research, but the effect disappears for patents close to expiration. Our nuanced measure …

Direct To Consumer Or Direct To All: Home Dna Tests And Lack Of Privacy Regulations In The United States, Karen J. Kukla

IP Theory

Although the U.S. has some measures of privacy protection for genetic data, the lack of a comprehensive approach to protecting direct-to-consumer genetic testing results in privacy violations for both consumers and their relatives. This essay explores the critical need for the U.S. government to address these privacy violations and argues that the U.S. should approach the problem and strategize a solution similar to the European Union’s (EU) General Data Protection Regulation (GDPR). Part I identifies current United States law, both federal and state regulations that address DTC-GT and genetic privacy. Part II examines the lack of regulation surrounding current DTC-GT …

Two Decades Of Trips In China, Peter K. Yu

Faculty Scholarship

This chapter reviews China’s engagement with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the past twenty years. It begins by highlighting TRIPS-related developments in the first decade of China’s WTO membership. The chapter then discusses the country’s ‘innovative turn’ in the mid-2000s and the ramifications of its changing policy positions. This chapter continues to examine the US-China trade war, in particular the second TRIPS complaint that the United States filed against China in March 2018. It concludes with observations about the impact of the TRIPS Agreement on China, China’s impact on that agreement and how the …

Who Owns Your Name? The Trend And Economic Impact Of Personal Trademarks In The Ncaa Nil Aftermath, Daniel Foster

The Journal of Business, Entrepreneurship & the Law

To aid in understanding the prevalence of personal athlete logos and the trend of ownership and design, Section II will outline the history of this area of trademark law in the United States. It will provide background on the theory of trademark ownership and the development of this intellectual property discipline in the athletic and celebrity sphere. Section II will look at the two common and distinct processes, a company-designed logo versus an athlete-designed logo, and the modern trends in this area. Moving on from this historical discussion, Section III will examine the 2021 decision of NCAA v. Alston, the …

The Social Value Of Intellectual Property, Alina Ng Boyte

IP Theory

No abstract provided.

Game Changers: Rewriting The Playbook A Sports And Entertainment Law Symposium, Steven Howard Roth

Akron Law Review

Attorney Steven Howard Roth participated in the following fireside chat with Akron Law Review Associate Editor Andrew Fleming as part of the Akron Law Review 2023 Symposium at The University of Akron School of Law in April 2023. Some content may be modified and/or abbreviated from its original transcript for purposes of flow and brevity.

Attorney Roth is the Founder and a Principal of Roth Firm, LLC, a law firm that represents individuals and domestic and international companies within the middle and upper middle market in business and transactional matters. Attorney Roth’s practice focuses on the areas of mergers and …

Parallel Play: The Simultaneous Professional Responsibility Campaigns Against Unethical Ip Practitioners By The United States And China, Mark A. Cohen

Akron Law Review

“Parallel Play: The Simultaneous Professional Responsibility Campaigns Against IP Practitioners by the United States and China” describes efforts by the United States Patent and Trademark Office and the China National IP Administration to discipline trademark and patent practitioners through contemporaneous campaign-style approach directed to bad faith filings. At the USPTO, many of these bad faith filings have originated from China. In both countries, these bad faith activities have imposed significant burdens on IP agencies, the courts, and legitimate rights holders. The campaign is likely the largest professional responsibility campaign undertaken by an IP agency, and the largest cross-border IP disciplinary …

Reinterpreting Repeat Infringement In The Digital Millennium Copyright Act, Hunter Mcghee

Vanderbilt Journal of Entertainment & Technology Law

In 1998, Congress passed the Digital Millennium Copyright Act, which aimed to balance the growth of the internet with the enforcement interests of copyright holders. In exchange for immunity from third-party infringement, the DMCA imposes certain conditions on internet and online service providers. Unfortunately, the law continues to contain many ambiguities in its statutory scheme, not least of which is the requirement that service providers maintain a “repeat infringer policy” to remove individuals that repeatedly infringe intellectual property rights. In response to a review of the Copyright Act conducted by the House Judiciary Committee, the US Copyright Office authored a …

When Patent Litigators Become Neurosurgeons, Katie Chang

Washington Law Review Online

Patent law is where the law meets the most cutting-edge and innovative technology of its time. Usually, subject matter experts, with the help of lawyers, are the ones applying for patents. But when it comes to granting and enforcing patent rights, the job falls onto lawyers and judges, who, for the most part, are likely not experts in the relevant technical field. Bridging the gap between technological expertise and legal expertise has been a pain point in patent litigation, one that Congress has tried to rectify for many years. This Comment primarily examines one of Congress’s solutions—the Patent Pilot Program—and …

Give Starving Artists A Piece Of The Ip Pie: Making Room At The Table For Performers’ Rights, Meagan A. Sharp

Journal of Intellectual Property Law

Creators protect their valuable intellectual property interests through copyright. Historically, stage performers struggled to secure copyright ownership in their performances within a larger production. As the theatre landscape changes, however, trends indicate that producers will increasingly rely on performers to develop characters and shows. This reliance could prove to be an exploitative practice if performers do not receive additional compensation for their part in creating successful works. This Note first examines the meanings of authorship, fixation, and control under the Copyright Act of 1976, then widens its lens to consider alternate interpretations of these technical terms in light of an …

Rethinking "Reasonableness": Implementation Of A National Board To Clarify The Trade Secret Standard Now That The Work-From-Home Culture Has Changed The Rules, Hannah E. Brown

Journal of Intellectual Property Law

Under the federal Defend Trade Secrets Act (“DTSA”), almost any type of information can qualify as a trade secret but only if the owner has taken “reasonable measures” to keep such information secret. Under case law, what is “reasonable” varies and may differ based on the court, the company size, and the particular facts of each situation. The interpretation of what is “reasonable” must change with the times, specifically, to take into consideration the sharp increase in remote work that accompanied the COVID-19 pandemic. The rise in remote work necessarily means more servers accessing data and more remote transmission of …

Compliance Of National Tdm Rules With International Copyright Law: An Overrated Nonissue?, Martin Senftleben

Joint PIJIP/TLS Research Paper Series

Seeking to devise an adequate regulatory framework for text and data mining (TDM), countries around the globe have adopted different approaches. While considerable room for TDM can follow from the application of fair use provisions (US) and broad statutory exemptions (Japan), countries in the EU rely on a more restrictive regulation that is based on specific copyright exceptions. Surveying this spectrum of existing approaches, lawmakers in countries seeking to devise an appropriate TDM regime may wonder whether the adoption of a restrictive approach is necessary in the light of international copyright law. In particular, they may feel obliged to ensure …

Comment: Copyright Registration: Fourth Estate Implications For Photographers In The Modern World, Izabella Kanoza

Northern Illinois University Law Review

In 2019, the Supreme Court has settled a long-standing split issue among the Circuit Courts. The issue revolved around the interpretation of the word “registration” with the Copyright Office in order for a copyright owner to be able to initiate a copyright infringement lawsuit. However, the now settled precedent has presented challenges to the ever-evolving internet world and those who use it to create, advertise, and share their digital content. Digital photographers, specifically, have found this registration requirement inefficient when it comes to sharing their work on social media platforms, such as Instagram or Facebook, where copyright infringement in the …

Patents' New Salience, Janet Freilich

Faculty Scholarship

The vast majority of patents do not matter. They are almost never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has a tremendous impact on patent policy. In particular, while there are many aspects of patent law that are potentially troubling-including grants of unmerited patents, high transaction costs in obtaining necessary patent licenses, and patents' potential to block innovation and hinder economic growth-these problems may be insignificant in practice because patents are under-enforced and routinely infringed without consequence.

This Article argues that technological developments are greatly increasing the …

Raising The Threshold For Trademark Infringement To Protect Free Expression, Christine Haight Farley, Lisa P. Ramsey

Scholarly Articles in Law Reviews & Journals

The First Amendment right to free speech limits the scope of rights in trademark law. Congress and the courts have devised various defenses and common law doctrines to ensure that protected speech is exempted from trademark infringement liability. These defensive trademark doctrines, however, are narrow and often vary by jurisdiction. One current example is the speech-protective test first articulated by the Second Circuit in Rogers v. Grimaldi, expanded by the Ninth Circuit, and recently restricted by the Supreme Court in Jack Daniel’s Properties v. VIP Products to uses of another’s mark within an expressive work that do not designate the …

Note: Artistic Relevance In Artificial Intelligence? “Roger” That!, Kelly Heilman

Notre Dame Journal on Emerging Technologies

In an era of technological revolution, artificial intelligence is shocking the legal field with its increasing popularity, power, and potential. The limits of property, personhood, and creativity are in question by both the public and the courts, leaving significant ambiguities in the law. Legal standards regarding the regulation of advanced technologies have raised unique and critical substantive questions for intellectual property rights, particularly that of trademarks, where the traditional purpose is source identification between consumers and goods.

Since the 1989 holding in Rogers v. Grimaldi, the use of trademarks for creative purposes, as a matter of First Amendment jurisprudence, …

Patenting Genetic Information, David S. Olson, Fabrizio Ducci

Indiana Law Journal

The U.S. biotechnology industry got its start and grew to maturity over roughly three decades, beginning in the 1980s. During this period genes were patentable, and many gene patents were granted. University researchers performed basic research— often funded by the government—and then patented the genes they discovered with the encouragement of the Bayh-Dole Act, which sought to encourage practical applications of basic research by allowing patents on federally funded inventions and discoveries. At that time, when a researcher discovered the function of a gene, she could patent it such that no one else could work with that gene in the …

Video Games And The First Amendment, Eli Pales

Northwestern Journal of Technology and Intellectual Property

The video game industry is massive, with an annual revenue of $180 billion worldwide; $60 billion of that in America alone. For context, the industry’s size is greater than that of the movie, book, and music industries combined. Yet, despite this market dominance, the video game industry is relatively new. Only in the 2011 decision of Brown v. Entertainment Merchants Association did the Supreme Court extend First Amendment protection to games. Still, the Court failed to define the scope of the game medium. As understood by an average person, a video game could be something as simple as Pac-Man or …

The Power Of Local: Nearby Innovators Dominate Patented Technology Development, Richard Gruner

Northwestern Journal of Technology and Intellectual Property

Advances by nearby innovators – close enough to interact in person – play key roles in patented technology development. Patents frequently cite nearby innovations, identifying these local innovations as the background for further patented inventions. Such citations reveal narrow geographic areas with intensely active innovation communities advancing similar projects and technologies. Local innovators – working within a commutable distance of 40 miles or less of each other – accounted for 25 percent of all patent citations between 2010 and 2019 and about 21 percent of citations by disinterested patent examiners reviewing patent applications. These percentages of citations to local advances …

Curiosities Of Standing In Trade Secret Law, Charles T. Graves

Northwestern Journal of Technology and Intellectual Property

Standing under the Uniform Trade Secrets Act – the right to pursue a misappropriation claim – is a vexing question when compared to patent, copyright, and trademark law. Instead of requiring ownership or license rights as a condition to sue, courts often find that mere possession of an asserted trade secret suffices for standing, even when the provenance of the information is murky. In some cases, courts even allow trade secret plaintiffs to claim intellectual property rights in the preferences and desires expressed to them by their customers in lawsuits designed to stop former employees from doing business with those …

A Loaded God Complex: The Unconstitutionality Of The Executive Branch’S Unilaterally Withholding Zero-Days, Brendan Gilligan

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Toothless Trade? Implications Of The Federal Circuit’S Clearcorrect Decision For The Enforceability Of Intellectual Property Protections In Digital Trade Under Usmca, Alissa Chase

Catholic University Law Review

Digital trade is growing faster than trade in goods and services and comprises a key area for innovation and intellectual property concerns. The United States-Mexico-Canada Agreement (“USMCA”) acknowledged this development by including chapters devoted to both digital trade and intellectual property. In 2015, the Federal Circuit held that the International Trade Commission (“ITC”) does not have jurisdiction over unfairly traded digital goods. Without exclusion orders issued by the ITC, the United States lacks a powerful tool to enforce the USMCA provisions protecting intellectual property in unfairly traded digital goods. This comment explores the implications of the Federal Circuit’s 2015 ClearCorrect …

A Compulsory Solution To The Machine Problem: Recognizing Artificial Intelligence As Inventors In Patent Law, Cole G. Merritt

Vanderbilt Journal of Entertainment & Technology Law

Artificial Intelligence (AI) is already disrupting and will likely continue to disrupt many industries. Despite the role AI already plays, AI systems are becoming increasingly powerful. Ultimately, these systems may become a powerful tool that can lead to the discovery of important inventions or significantly reduce the time required to discover these inventions. Even now, AI systems are independently inventing. However, the resulting AI-generated inventions are unable to receive patent protection under current US patent law. This unpatentability may lead to inefficient results and ineffectively serves the goals of patent law.

To embrace the development and power of AI, Congress …

Blockchain Real Estate And Nfts, Juliet M. Moringiello, Christopher K. Odinet

Faculty Scholarship

Non-fungible tokens (popularly known as NFTs) and blockchains are frequently promoted as the solution to a multitude of property ownership problems. The promise of an immutable blockchain is often touted as a mechanism to resolve disputes over intangible rights, notably intellectual property rights, and even to facilitate quicker and easier real estate transactions.

In this Symposium Article, we question the use of distributed ledger technologies as a method of facilitating and verifying the transfer of physical assets. As our example of an existing transfer method, we use real property law, which is characterized by centuries-old common law rules regarding fractionalized …

Property's Boundaries, James Toomey

Elisabeth Haub School of Law Faculty Publications

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of …

Fables Of Scarcity In Ip, Zahr K. Said

Articles

In this chapter, I use methods drawn from literary analysis to bear on artificial scarcity and explore how literary and legal storytelling engages in scarcity mongering. I find three particular narrative strategies calculated to compel a conclusion in favor of propertization: the spectacle of need, the diversionary tactic, and the rallying cry. First, I unpack the spectacle of need and its diversionary aspects through several literary accounts of scarcity and starvation. I juxtapose Franz Kafka's “A Hunger Artist,” a story explicitly centered on a wasting body, with J.M. Coetzee's The Life and Times of Michael K. Second, to explore how …

Foreword, Jessica Silbey

Faculty Scholarship

Most of us think we are familiar with graffiti – lettering on trains or graphic images on walls that follow us as we walk by. But Enrico Bonadio’s new book on graffiti and street art opens a door to more complex and nuanced worlds of artists and their communities. The focus is on everyday creators of graffiti and street art. Built from nearly 100 interviews and hundreds of hours of observation, the book is filled with the voices of artists and vivid details of their plein air studios and interactions. Also present in the book is the author, who weaves …