Law Commons^™

U.S. State Copyright Laws: Challenge And Potential, Marketa Trimble

Scholarly Works

With copyright law in the United States lying primarily in the realm of federal law, the laws of the U.S. states concerning copyright do not typically attract significant attention from scholars, practitioners, and policy makers. Some recent events have drawn attention to state copyright laws – for example, litigation against a satellite radio provider for infringement of state common-law public performance rights in pre-1972 sound recordings. However, in general, state copyright laws remain largely in the shadow of federal copyright law, and state law is typically not viewed as a particularly useful vehicle for pursuing the policies that copyright law …

Sheldon Halpern And The Right Of Publicity, Marshall A. Leaffer

Articles by Maurer Faculty

No abstract provided.

The Commercial Appropriation Of Frame: A Cultural Analysis Of Right Of Publicity And Passing Off, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

Over several centuries, the rhetoric of 'gap filling' has often been invoked to naturalise expansions of intellectual property ("IP") rights-copyright term extension, the patenting of life forms, trademark disparagement, and so forth. The ready pragmatism of the phrase has definite audience appeal, making big changes sound like straightforward responses to external conditions-rather than choices about how to draw the line between private ownership and public discourse. We know, however, that once filled, 'gaps' tend to stay filled. Retrospective debates about the wisdom of such decisions tend to be (both literally and figuratively) of merely academic interest. So what is most …

Copyright, Jane C. Ginsburg

Faculty Scholarship

This chapter o􀁼ers an overview of copyright in general in common law and civil law countries, with an emphasis on the United States (US) and the European Union (EU). It addresses the history and philosophies of copyright (authors’ right), subject matter of copyright (including the requirement of 􀁿xation and the exclusion of “ideas”), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. It also covers the liability of …

Trademarks And Unfair Competition, Clarisa Long

Faculty Scholarship

Chapter 9 summarizes the dominant law and economic approach to some of the doctrines comprising the two major strands of modern trademark law: classic trademark law, in which trademark protection is justified as reducing consumer search costs and preventing consumer confusion; and dilution law, which is explained by the more traditional intellectual property justifications of encouraging investment in creating valuable marks and protecting producer goodwill. It argues that the culmination of trademark law in the form of protection against dilution represents completion of a full circle of development of unfair competition law. From its start as a means of protecting …

Trust: A Model For Disclosure In Patent Law, Ari Ezra Waldman

Articles & Chapters

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is the first in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and non-public information through the lens of social science — namely, principles of trust.

Patent law’s “public use” bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows …

Patent Law's Reproducibility Paradox, Jacob S. Sherkow

Articles & Chapters

Clinical research faces a reproducibility crisis. Many recent clinical and preclinical studies appear to be irreproducible; their results cannot be verified by outside researchers. This is problematic for not only scientific reasons but legal ones: patents grounded in irreproducible research appear to fail their constitutional bargain of property rights in exchange for working disclosures of inventions. The culprit is likely patent law’s doctrine of enablement. Although the doctrine requires patents to enable others to make and use their claimed inventions, current difficulties in applying the doctrine mitigate or even actively dissuade reproducible data in patents. This Article assesses the difficulties …

Software's Copyright Anticommons, Clark D. Asay

Faculty Scholarship

Scholars have long assessed “anticommons” problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.

In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has …

Functionality Screens, Christopher Buccafusco, Mark A. Lemley

Articles

Among intellectual property (IP) doctrines, only utility patents should protect function. Utility patents offer strong rights that place constraints on competition, but they only arise when inventors can demonstrate substantial novelty after a costly examination. Copyrights, trademarks, and design patents are much easier to obtain than utility patents, and they often last much longer. Accordingly, to prevent claimants from obtaining “backdoor patents,” the other IP doctrines must screen out functionality. As yet, however, courts and scholars have paid little systematic attention to the ways in which these functionality screens operate across and within IP law.We have four tasks in this …

The New Institutionalism In Contract Scholarship, Robert E. Scott

Faculty Scholarship

Relational contract scholarship is at a pivot point. On the one hand, the relationalist revival that has dominated contracts scholarship for almost half a century may be on the wane. Relational contract scholarship has evolved during this period into separate, and often dueling, intellectual traditions. One camp consists of scholars who are typically associated with the “law and economics” movement; in the other camp are scholars who more readily identify with the “law and society” tradition. While relationalists have been quarreling with each other, a younger cohort of law and economics scholars, armed with impressive technical skills, have abandoned relational …

Machiavellian Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

In his controversial essay, “Faith-Based Intellectual Property,” Mark Lemley argues that moral theories of intellectual property are wrong because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories have …

The Copy Process, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

There’s more than one way to copy. The process of copying can be laborious or easy, expensive or cheap, educative or unenriching. But the two intellectual property regimes that make copying an element of liability, copyright and trade secrecy, approach these distinctions differently. Copyright conflates them. Infringement doctrine considers all copying processes equally suspect, asking only whether the resulting product is substantially similar to the protected work. By contrast, trade secrecy asks not only whether but also how the defendant copied. It limits liability to those who appropriate information through means that the law deems improper.

This Article argues that …

Speaking From The Grave. Should Copyright Listen?, Jessica Silbey

Faculty Scholarship

Should authors be able to control the use of their work after they die? It’s a question that touches deep personal and public concerns. It resonates with longstanding debates in literary studies over the “death of the author” and “authorial intent,” and is an issue that Professor Eva Subotnik tackles in her latest article, Artistic Control After Death (forthcoming in the Washington Law Review).

Currently, U.S. copyright expires 70 years after the author’s death so that control of an author’s copyrights extends far into the future. Long after an author creates a work, often decades after publication and the work’s …

Can China Protect The Olympics, Or Should The Olympics Be Protected From China?, Jennifer L. Donatuti

Journal of Intellectual Property Law

No abstract provided.

Marketa Trimble Becomes The Inaugural Samuel S. Lionel Professor Of Intellectual Property Law, Marketa Trimble

Nevada Law Journal

No abstract provided.

Trending @ Rwu Law: Linn F. Freedman's Post: The Goal Of Gender Equality In Cybersecurity 08/23/2016, Linn F. Freedman

Law School Blogs

No abstract provided.

A La Recherche Du “Sens” Perdu: Copyrightable Creativity Deconstructed, Thomas M. Byron

Pace Law Review

The primary goal of this article is to show how the concept of “creativity” as defined and applied by courts in copyright cases fails to map any reasonable concept of creativity in certain critical respects. Accordingly, the first charge undertaken here is a deconstructive one—to show the lack of meaningful overlap between the legal definition of creativity and the “actual” meanings of that same term. To undertake this comparison, Part II of this Article focuses on perhaps the more easily determined of these two definitions of the term—“creativity” as defined by courts. Rather than giving an unduly broad berth …

"Transplanting" Organ Donors With Printers: The Legal And Ethical Implications Of Manufacturing Organs, Katherine A. Smith

Akron Law Review

Three-dimensional (3D) printing is no longer restricted to simple inanimate objects; that conjecture is a thing of the past. With advancements in many areas of science, living tissues and organs can now be printed through a technique called 3D bioprinting. This technology could potentially save the lives of the 120,000 Americans in need of an organ transplant. However, whether or not a 3D bioprinted organ qualifies as a “human organ” under the National Organ Transplant Act (NOTA) and whether 3D bioprinted organs require federal approval could either delay or completely bar this technology’s promise. The Ninth Circuit’s Flynn v. Holder …

Curated Innovation, Lital Helman

Akron Law Review

The regulation of innovation-intensive industries is a critical issue for both innovation policy and regulation. In this Article, I propose a new framework to the way innovation-intensive industries are regulated.

My proposal is a four-pronged model, which I term “Curated Innovation.” In the first stage, policymakers would set a standard that would represent the outcome the regulation seeks to achieve. Second, policymakers would launch a competition, where innovative technologies or methods would race to meet the standard that was defined. Third, policymakers would select the methods or technologies that come closest to meeting the standard and create an incentive in …

Are Universities Special?, Shubha Ghosh

Akron Law Review

Universities offer a space for development of ideas, exploration of basic research, and productive outlets for creation and invention. As such, they are key to the innovation environment within which intellectual property laws operate. Although scholarship has focused on universities as institutions counter to other institutions like markets and government, less attention has been paid to universities as organizations, a site for governance through detailed rules and commonly understood norms. When understood as an organization, universities display three overlapping, but distinct models: one of pure research, one of pure commercialization, and one of public purpose. These three models together define …

Intellectual Property Revenue Sharing As A Problem For University Technology Transfer, Jennifer Carter-Johnson

Akron Law Review

The Bayh-Dole Act, often credited with the explosion of university technology transfer, requires universities to incentivize invention disclosure by sharing the royalties generated by patent licensing with inventors. Many scholars have debated the effectiveness of university implementation of this requirement, and, indeed, the low rate of invention disclosure by academic researchers to the university is often a bottleneck in the technology-transfer process.

Unfortunately, most discussions focusing on inventor compliance with Bayh-Dole Act requirements have explored faculty-inventor motivations. However, in most cases, university inventions are joint products of a group of university members including not only faculty but also post-doctoral researchers …

Jay-Z Has 99 Problems But A Sample Ain’T One, Rebecca Knight

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

The Luxembourg Effect: Patent Boxes And The Limits Of International Cooperation, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

This article uses patent boxes, which reduce taxes on income from patents and other IP assets, to illustrate the fact that the jurisprudence of the European Court of Justice has a longer reach than has previously been recognized. This article argues that, along with having effects within the European Union, the ECJ’s decisions can also have effects on countries outside of the EU. In the direct tax context, the ECJ’s jurisprudence has hampered the ability of both EU and non-EU countries to police international tax avoidance.

In 2015, the Organisation for Economic Co-operation and Development (OECD) proposed restrictions on patent …

Sherlock Holmes & The Case Of The Contested Copyright, Jessica L. Malekos Smith

Chicago-Kent Journal of Intellectual Property

For generations, Sir Arthur Conan Doyle’s novels and short stories on the adventures of Sherlock Holmes have captivated the minds of readers and fueled a lucrative intellectual property market. The historical trajectory of international copyright protections to this literary canon, however, is an equally intriguing, if not mysterious, page-turner. This Note explores the procedural history of Klinger v. Conan Doyle Estate, Ltd., and examines how the literary characters of Sherlock Holmes and Dr. John H. Watson can simultaneously exist in the public domain, while certain story elements still remain under copyright protection in the United States until 2022.

Alternative Forum: A Colorado Farmer And The Itc’S Excellent Adventure, Brady P. Gleason

Catholic University Law Review

As marijuana regulation at the local level becomes at odds with federal policy, an interesting question arises regarding the drug’s potential classification as an article of commerce. Resulting of this potential shift is the existence of an unexpected legal question as to whether the U.S. International Trade Commission, via the agency’s section 337 investigatory and remedial authorities, may regulate marijuana that has been illegally imported into the United States. While avoiding any stance on the contentious issue of marijuana legalization, this essay explores this legal ramification by surmising a fictional narrative of two Colorado marijuana farmers, and investigating the ITC’s …

Manufacturers Association Of Israel V. Merck Sharp & Dohme, Neal Hendel, Yoram Danziger, Uri Shoham

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The rights in an Israeli patent, upon which the Ezetrol medical preparation is based, belong to the Respondents in LCA 8127/15, who are the Applicants in LCA 8263/15 (hereinafter: Merck). According to sec. 52 of the Patent Law (hereinafter: the Law), the period of the patent is 20 years from the date of the application, which was filed in 1994. In 1998, the Law …

Misreading A Canonical Work: An Analysis Of Mansfield's 1994 Study, Paul J. Heald

Journal of Intellectual Property Law

No abstract provided.

Copyright Protection For Attorney Work Product: Practical And Ethical Considerations, Stanley F. Birch Jr.

Journal of Intellectual Property Law

No abstract provided.

L. Ray Patterson: A Selected Bibliography, Journal Of Intellectual Property Law

Journal of Intellectual Property Law

No abstract provided.

The Insurability Of Claims For Restitution, Christopher French

Faculty Scholarship

Does and should a wrongdoer’s liability insurance cover an aggrieved party’s claim for restitution (e.g., a claim for the disgorgement of ill-gotten gains)? This article answers those questions. It does so by first answering the question of whether claims for restitution are covered under the terms of liability insurance policies. Then, after concluding that they are, it addresses the question of whether claims for restitution should be insurable as a matter of public policy and insurance law theory. There are long-standing legal and equitable principles that, on the one hand, dictate that a wrongdoer should not be allowed to benefit …