Law Commons^™

The Private Life Of Drm: Lessons On Privacy From The Copyright Enforcement Debates, Rebecca Wexler

Faculty Scholarship

This Article presents an intellectual history of competing privacy claims and counterclaims in policy debates about copyright enforcement methods. Specifically, it examines debates over Digital Rights Management technologies, or encryption tools that track the use of, and restrict access to, copyrighted information. The Article finds that, historically, information privacy claims in these debates did not lead to determinant outcomes; each argument drawn from a privacy interest corresponds to a counterclaim drawn from that same interest but supporting an opposite policy preference. Moreover, these competing claims on privacy cannot be explained as mere superficial semantics. Rather, they concern a variety of …

I Am My Brother's Keeper: How The Crossroads Of Entrepreneurship, Intellectual Property And Entertainment Can Be Used To Affect Social Justice, Loren E. Mulraine

Law Faculty Scholarship

Growing up in the Bronx, New York, our neighborhoods served as the fulcrum for the world we knew. Like many in my neighborhood, we were immigrants. My family had come to New York from the West Indies, for higher education, to make a better life and to contribute to a growing, energetic society. In many ways, the ultimate goal was to have a transformative effect upon our family tree. Many children, my sisters and I included, grew up in homes where we welcomed our parents’ siblings and their families – our aunts, uncles and cousins – to live with us …

Agricultural Biotechnology: Drawing On International Law To Promote Progress, J. Janewa Oseitutu

Faculty Publications

In Bowman v. Monsanto, the Supreme Court declined to apply the principle of exhaustion to limit the patentee’s ability to control the reproduction of self-replicating inventions. This decision was justified from a patent law perspective on the basis that patent holder has a right to prevent others from making the invention. But what happens when we take other perspectives into account? For instance, a farmer might have human rights or other rights that may need to be balanced against the patentee’s right. Since globalized intellectual property standards were established through international agreements and much of the resistance to intellectual property …

Reading Intellectual Property Law Reform Through The Lens Of Constitutional Equality, Jessica Silbey

Faculty Scholarship

In reviewing three books, Robert Spoo's Without Copyright, Bill Herman's The Fight for Digital Rights, and Aram Sinnreich's The Piracy Crusade, for Tulsa Law Review's annual book review volume, this paper explores new themes and structures in Supreme Court cases about intellectual property. Studying the new histories and processes described in the books under review helps reveal constitutional equality frameworks in Supreme Court cases about intellectual property usually understood as cases about congressional deference and property rights. This article explains how many of these Supreme Court cases about IP reflect a range of equality modalities - e.g., …

Steps Towards An Alignment Of Intellectual Property In South-South Exchanges: A Return To Trips, Ana Santos Rutschman

All Faculty Scholarship

Some of the most instrumental players in shaping the course of intellectual property policies in the South are the so-called BRIC countries. The acronym BRIC originally encompassed Brazil, Russia, India and China. In 2011, South Africa formally joined the BRIC countries, which are now referred to either by the original acronym or by BRICS. While categorizations like BRICS attract a fair amount of criticism, with questions surrounding the criteria used to aggregate disparate economies, the concept of emerging economies in the South seeking to advance similar development agendas has become accepted currency in multiple fields, from institutional cooperation to financial …

We (Still) Need To Talk About Aereo: New Controversies And Unresolved Questions After The Supreme Court's Decision, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Recent judicial interpretations of U.S. copyright law have prompted businesses to design technologies in ways that enable the making and transmission of copies of works to consumers while falling outside the scope of the owner's exclusive rights. The archetypal example is Aereo Inc.'s system for providing online access to broadcast television, which the Supreme Court has now ruled results in infringing public performances by Aereo.

In previous work we urged the Court to develop a principled reading of the transmit clause focusing on the particular use rather than on the technical architecture of the delivery service (Giblin & Ginsburg, "We …

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Scholarly Works

The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …

Stem Cell Patents After The America Invents Act, Jacob S. Sherkow, Christopher Scott

Articles & Chapters

Under the newly passed Leahy-Smith America Invents Act (AIA), the U.S. Patent and Trademark Office may hear new challenges to stem cell patents. Here, we explore how the new law affects challenges to stem cell patents, focusing on two recent cases, and discuss the future of stem cell patent disputes.

The History Of Patenting Genetic Material, Jacob S. Sherkow, Henry T. Greely

Articles & Chapters

The US Supreme Court’s recent decision in Association for Molecular Pathology v. Myriad Genetics, Inc. declared, for the first time, that isolated human genes cannot be patented. Many have wondered how genes were ever the subjects of patents. The answer lies in a nuanced understanding of both legal and scientific history. Since the early twentieth century, “products of nature” were not eligible to be patented unless they were “isolated and purified” from their surrounding environment. As molecular biology advanced, and the capability to isolate genes both physically and by sequence came to fruition, researchers (and patent offices) began to apply …

Possession As A Natural Right, Thomas W. Merrill

Faculty Scholarship

What follows is, I hope, a tribute both to Friedrich Hayek, for whom this lecture series is named, and Richard Epstein, who was kind enough to invite me to give the lecture. Hayek has long been an inspiration for his insights about the advantages of decentralized decision making and the importance of information in understanding design of institutions. Both are recurring themes in my own work. Richard was my teacher at the University of Chicago Law School and has been a guiding light ever since. His works on nuisance law, takings, and the public trust doctrine, among others, have had …

Copyright's Technological Interdependencies, Clark D. Asay

Faculty Scholarship

Copyright was initially conceptualized as a means to free creative parties from dependency on public and private patrons such as monarchs, churches, and well-to-do private citizens. By achieving independence for creative parties, the theory ran, copyright led to greater production of a more diverse set of creative works.

But this lingering conception of copyright is both inaccurate and harmful. It is inaccurate because, in today’s world, creative parties are increasingly dependent upon “Technological Patronage” from the likes of Google, Amazon, Apple, and others. Thus, rather than being alternatives or adversaries, copyright and Technological Patronage are increasingly interdependent in facilitating both …

Justifying India's Patent Position To The United States International Trade Commission And Office Of The United States Trade Representative, Srividhya Ragavan, Sean Flynn, Brook Baker

Faculty Scholarship

The paper below largely is an extract of the testimonial filed by the authors to the Secretary of the ITC in response to the Notice on the Federal Register dated August 29, 2013 titled Trade, Investment, and Industrial Policies in India: Effects on the U.S. Economy. Where required, the paper also draws from the written submissions that the authors made to the United States Trade Representative’s (hereinafter, USTR) office on the related question of whether India deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property …

Patent Law Challenges For The Internet Of Things, W. Keith Robinson

Faculty Journal Articles and Book Chapters

In the near future, emerging technologies will allow billions of everyday devices to be connected via the Internet. This increasingly popular phenomenon is referred to as the Internet of Things (“IoT”). The IoT is broadly defined as technology that allows everyday devices to (1) become “smart” and (2) communicate with other smart devices. Estimates indicate that the market for smart devices, such as wearables, will grow to $70 billion dollars in the next ten years. Like many other emerging technologies, the entrepreneurs and companies developing these applications will seek patent protection for their inventions. In turn, the current U.S. patent …

Mapping The Interface Between Human Rights And Intellectual Property, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Promoting Progress: A Qualitative Analysis Of Creative And Innovative Production, Jessica Silbey

Faculty Scholarship

This chapter is based on data collected as part of a larger qualitative empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents and business partners. Broadly, the project involves the collecting and analysis of these interviews to understand how and why the interviewees create and innovate and to make sense of the intersection between intellectual property law and creative and innovative activity from the ground up. This chapter specifically investigates the concept of “progress” as discussed in the interviews. “Promoting progress” is the ostensible goal of the intellectual property protection in the United States, but what …

Stay Tuned: Whether Cloud-Based Service Providers Can Have Their Copyrighted Cake And Eat It Too, Amanda Asaro

Fordham Law Review

    Copyright owners have the exclusive right to perform their works publicly and the ability to license their work to others who want to share that right. Subsections 106(4) and (5) of the Copyright Act govern this exclusive public performance right, but neither subsection elaborates on what constitutes a performance made “to the public” versus one that remains private. This lack of clarity has made it difficult for courts to apply the Copyright Act consistently, especially in the face of changing technology.

    Companies like Aereo, Inc. and AereoKiller, Inc. developed novel ways to transmit content over the internet to be viewed …

The Ascendancy Of European Community Law--The Implications Of The Court Of Justice Decision In Magill On The Balance Between National And Ec Intellectual Property Law, Tanya Doherty Reagan

Georgia Journal of International & Comparative Law

No abstract provided.

For Sale--One Level 5 Barbarian For 94,800 Won: The International Effects Of Virtual Property And The Legality Of Its Ownership, Alisa B. Steinberg

Georgia Journal of International & Comparative Law

No abstract provided.

Happy Together? The Uneasy Coexistence Of Federal And State Protection For Sound Recordings, Gary Pulsinelli

Scholarly Works

Federal copyright law provides a digital performance right that allows owners of sound recordings to receive royalties when their works are transmitted over the Internet or via satellite radio. However, this federal protection does not extend to pre-1972 sound recordings, which are excluded from the federal copyright system and instead left to the protections of state law. No state law explicitly provides protection for any type of transmission, a situation the owners of pre-1972 sound recordings find lamentable. These owners are therefore attempting to achieve such protection by various means. In California, they filed a lawsuit, claiming that they already …

Trademarked For Death? A Licensee's Trademark Rights After An Executory Contract Is Rejected In Bankruptcy, Philip L. Lu

Vanderbilt Law Review

In 1872, a young man named Claudio Alvarez Lefebre began manufacturing and selling high-quality rum in Cuba under the brand name "Ron Matusalem." In 1948, as the family-run business prospered, the company registered a trademark and corporate logo in the United States. Upon his death, Lefebre left the business-and the secret formulas for making his rum-to his wife and children. By the early 1960s, Lefebre's wife and children had immigrated to the United States, and they split the rum-making business into two separate corporations. These two distinct entities negotiated an executory contract in the form of a franchise agreement with …

Keep Your Friends Close: A Framework For Addressing Rights To Social Media Contacts, Courtney J. Mitchel

Vanderbilt Law Review

A group of entrepreneurial recent college graduates starts a tutoring and test prep company focused on helping promising high school students get an edge on their college applications. Since the cost of print advertising exceeds the group's budget, they each actively promote the business on their personal social media accounts, garnering their first clients. They also create company accounts on Facebook, Linkedln, and Twitter, which clients join for easy, direct communication and quick access to information. Though all the founders contribute occasional posts and encourage their personal social media contacts to join the company accounts, one eventually becomes, in practice …

Ka Bow! Seventh Circuit Knocks Down Trademark Claim, Sarah B. Virani

Seventh Circuit Review

Integral to the success of a business is its ability to protect its trademark. When another individual or business infringes upon a business's trademark, the infringed user can bring a claim under the Lanham Act, which codifies federal trademark law, in part to protect consumers from confusion as to the source of a product or service. An essential question is whether a trademark holder may, under the Lanham Act, bring a successful claim for trademark infringement against another for a fictional product.

The Seventh Circuit addressed this matter in Fortres Grand Corporation v. Warner Bros. Entertainment, in which the …

Aereo And Filmon: Technology’S Latest Copyright War And Why Aereo Should Survive, Krista Consiglio

Washington and Lee Law Review

No abstract provided.

Learning From Lin: Lessons And Cautions From The Natural Commons For The Knowledge Commons, Daniel H. Cole

Articles by Maurer Faculty

No abstract provided.

Myriad Stands Alone, Jacob S. Sherkow, Christopher T. Scott

Articles & Chapters

Myriad took no prisoners on its way to the top of the molecular diagnostics field. That strategy is unlikely to endure.

Myriad Genetics began in 1991 as a small University of Utah startup interested in the then-novel arena of diagnostic genetic testing. After winning a highly publicized race to sequence the BRCA1 and BRCA2 breast cancer genes, the company obtained patents on the gene sequences and methods of using them to determine cancer risk. The patents were broad and interlocking, covering BRCA genomic DNA, cDNA, methods of diagnosis and systems detecting mutations. Myriad also filed for diagnostic 'toolbox' patents, including …

Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 4, Issue 2, Spring 2014

Pace Intellectual Property, Sports & Entertainment Law Forum

This issue of Pace Intellectual Property, Sports & Entertainment Law Forum includes articles on the modern legal issues & developments affecting fashion, the Internet, music, film, international sports, constitutional law & the lives of celebrities.

The 360° Of Information Fluency Delivery To Freshman Engineering Students, Marian G. Armour-Gemmen, Robin A.M. Hensel, Mary L. Strife

Faculty & Staff Scholarship

For three years, engineering librarians from West Virginia University (WVU) have been teaching information fluency skills to 700-1000 freshman engineering students per year, using a specific information fluency cycle. The librarians’ responsibilities in the Fall 2013 course syllabus included teaching once in each section, providing a two-hour, in-library group sessions to accommodate almost 700 students, delivering an intellectual property Blackboard™ module for students to complete over a specific period of time, and requiring students to complete a Plagiarism Avoidance Tutorial with quiz. Some of these components are similar to those of past semesters. However, past collection of the data was …

Regulatory Monopoly And Differential Pricing In The Market For Patents , Neel U. Sukhatme

Washington and Lee Law Review

Patents are limited-term monopolies awarded to inventors to incentivize innovation. But there is another monopoly that has been largely overlooked at the heart of patent law: the monopoly of the U.S. Patent and Trademark Office (PTO) over the granting of patents. This Article addresses this topic by developing the notion of a regulatory monopoly, where a single governmental actor has the power to set prices in a regulatory area. The Article explains how regulatory monopolists like the PTO could enhance social welfare via differential pricing—by charging regulated entities differing fees based on their willingness and ability to pay. In particular, …

Case Study Of Hp To Learn About Ip, Rachel Murphy

Honors Projects

Undergraduate thesis completed for Seattle Pacific University's University Scholars program. This project focuses on patent law as an intersection of engineering and law. Beyond studying the philosophies used to justify the granting of patents, the project attempts to quantify the value of patents as measured by company assignees versus the general public. A case study of patents involved in litigation between Hewlett Packard, Inc. and Repeat-O-Type Stencil Manufacturing Corporation is examined, with visuals generated by a Matlab program that made up a large component of this project.

3d Printers, James Barker, Nicholas Pleasants, Peter Montine, Shudan Zhu

Technology Law and Public Policy Clinic

A preliminary report, addressing potential market disruption, the state of the law, and recommendations on future legislative action regarding consumer-grade 3D printing.