Intellectual Property Law Commons^™

Law And Information Platforms, Philip J. Weiser

Publications

No abstract provided.

Congress's Power To Promote The Progress Of Science: Eldred V. Ashcroft, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay investigates the issues raised by Eldred v. Ashcroft, in which the Supreme Court may decide whether the Copyright Term Extension Act (CTEA) exceeds Congress's authority under that clause. The essay frames the issues in Eldred v. Ashcroft by discussing the history of copyright legislation in general and the CTEA in particular and then summarizing the procedural history of Eldred v. Ashcroft. The essay then undertakes a detailed investigation of the text of the Intellectual Property Clause, with a special emphasis on the interpretation of the clause by the first Congress and early judicial decisions. Three elements …

Incomplete Compensation For Takings, Thomas W. Merrill

Faculty Scholarship

If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is "tantamount to" an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is …

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Journal Articles

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their sub-additive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased …

Tiger's Paper Tiger: The Endangered Right Of Publicity, David J. Michnal

Washington and Lee Law Review

No abstract provided.

E-Commerce, Business Method Patents, And The Uspto: An Old Debate For A New Economy, Q. Todd Dickinson

Cardozo Arts & Entertainment Law Journal

No abstract provided.

"Available State Remedies" And The Fourteenth Amendment: Comments On Florida Prepaid V. College Savings Bank, Michael L. Wells

Scholarly Works

In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, decided during the Supreme Court's October 1998 Term, the specific point at issue was the scope of Congress's authority under Section 5 of the Fourteenth Amendment to impose liability for damages on state governments. In the Patent Remedy Act, Congress had abrogated the states' sovereign immunity from claims of patent infringement. College Savings Bank argued for the validity of the statute on the grounds that patents are property; that patent infringements are deprivations of property; and that the statute simply and appropriately provides a remedy for deprivations of …

Changing Relationships Among European Constitutional Courts, Stephen Breyer

Cardozo Law Review

No abstract provided.

Resolving The Dissonant Constitutional Chords Inherent In The Federal Anti-Bootlegging Statute In United States V. Moghadam, Keith V. Lee

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Copyright As A Model For Free Speech Law: What Copyright Has In Common With Anti-Pornography Laws, Campaign Finance Reform, And Telecommunications Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright raises real and troubling free speech issues, and standard responses to those concerns are inadequate. This Article aims to put copyright in the context of other free speech doctrine. Acknowledging the link between copyright and free speech can help determine the proper contours of a copyright regime that both allows and limits property rights in expression, skewing the content of speech toward change.

The Landscape Of Constitutional Property, Thomas W. Merrill

Faculty Scholarship

The Constitution contains two clauses that protect persons against governmental interference with their property. The Due Process Clause provides that "No person shall ... be deprived of life, liberty, or property, without due process of law." The Takings Clause adds, "nor shall private property be taken for public use, without just compensation." Both provisions appear to impose a threshold condition that a claimant have some "property" at stake before the protections associated with the Clause apply. Thus, under the Due Process Clause, it would seem that a claimant must have an interest in "property" (or in "life" or "liberty") before …

Resolving Tensions Between Copyright And The Internet, Walter Effross

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Constitutionality Of Copyright Term Extension: How Long Is Too Long, Jane C. Ginsburg, Wendy J. Gordon, Arthur R. Miller, William F. Patry

Faculty Scholarship

I am Professor William Patry of the Benjamin N. Cardozo School of Law. I will be the moderator of this star-studded debate on the Sonny Bono Copyright Term Extension Act.

This panel will try to determine, on the great continuum of limited times that the Constitution prescribes for copyright in Article I, Section 8, Clause 8, the term of protection that Congress has actually fixed. In other words: How long is too long? Sonny's bill establishes a term of protection of life plus seventy years for individual authors for works created on or after January 1, 1978. The bill retroactively …

Implied Limits On The Legislative Power: The Intellectual Property Clause As An Absolute Constraint On Congress, Paul J. Heald, Suzanna Sherry

Scholarly Works

Professors Heald and Sherry argue that the language of Article I, Section 8, Clause 8, the Intellectual Property Clause, absolutely constrains Congress's legislative power under certain circumstances. Their analysis begins by looking at other limits on the legislative power that the Court has found in the Bankruptcy Clause, the Eleventh Amendment, the Tenth Amendment, and Article III. Then by examining the history and structure of the Intellectual Property Clause and relevant precedent, they distill four principles of constitutional weight--the Suspect Grant Principle, the Quid Pro Quo Principle, the Authorship Principle, and the Public Domain Principle. These principles inform the Court's …

How Much Fuel To Add To The Fire Of Genius? Some Questions About The Repair/Reconstruction Distinction In Patent Law , Arthur J. Gajarsa, Evelyn Mary Aswad, Joseph S. Cianfrani

American University Law Review

No abstract provided.

Licensed To Steal: Has Sovereign Immunity Gone Too Far, 32 J. Marshall L. Rev. 779 (1999), Sulaiman M. Qazi

UIC Law Review

No abstract provided.

Digital Frontiers: Law And The Internet: Letter To The U.S. Senate From Marci A. Hamilton, Marci A. Hamilton

Articles

No abstract provided.

The Right To Know?: Delimiting Database Protection At The Juncture Of The Commerce Clause, The Intellectual Property Clause And The First Amendment, Malla Pollack

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Art And The Marketplace Of Expression, Marcie A. Hamilton

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Remedies For The Misappropriation Of Intellectual Property By State And Municipal Governments Before And After Seminole Tribe: The Eleventh Amendment And Immunity Doctrines, Paul J. Heald, Michael L. Wells

Scholarly Works

Part I of this Article addresses relief available to intellectual property owners under the Takings Clause of the Fifth Amendment. Before Congress's express abrogation of state sovereign immunity in 1992, federal, state, and local governments were nonetheless potentially liable for misappropriations of intellectual property that constituted takings without just compensation. This examination of the Supreme Court's Fifth Amendment jurisprudence is also key to answering the critical question of whether federal patent, copyright, and trademark laws establish rights in “property” for the purposes of the Fourteenth Amendment, for only under section 5 of the Fourteenth Amendment may Congress abrogate a state's …

Remedies For The Misappropriation Of Intellectual Property By State And Municipal Governments Before And After Seminole Tribe: The Eleventh Amendment And Other Immunity Doctrines, Paul J. Heald, Michael L. Wells

Washington and Lee Law Review

No abstract provided.

Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke

Faculty Scholarship

In the last few years, the Internet has increasingly become a source of information even for the historically computer illiterate. The growing popularity of the Internet has been driven in large part by the World Wide Web (web). The web is a system that facilitates use of the Internet by helping users sort through the great mass of information available on it. The web uses software that allows one document to link to and access another, and so on, despite the fact that the documents may reside on different machines in physically remote locations. The dispersion of data that is …

Early Patent Publication: A Boon Or Bane? A Discussion On The Legal And Economic Effects Of Publishing Patent Applications After 18 Months Of Filing, John F. Duffy, Hayden Gregory, Robert Rines, Herbert Wamsley, Douglas Wyatt

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Foucault In Cyberspace: Surveillance, Sovereignty, And Hardwired Censors, James Boyle

Faculty Scholarship

This is an essay about law in cyberspace. I focus on three interdependent phenomena: a set of political and legal assumptions that I call the jurisprudence of digital libertarianism, a separate but related set of beliefs about the state's supposed inability to regulate the Internet, and a preference for technological solutions to hard legal issues on-line. I make the familiar criticism that digital libertarianism is inadequate because of its blindness towards the effects of private power, and the less familiar claim that digital libertarianism is also surprisingly blind to the state's own power in cyberspace. In fact, I argue that …

An Analysis Of The Personal Use Principle Under Copyright Law, Hsin-Chih Cheng

LLM Theses and Essays

Personal use is when an individual uses a copyrighted work for private purposes, such as learning or entertainment. Personal use is a right given in the Copyright Clause of the U.S. Constitution, however, an issue arises when the individual wants to make a copy of the copyrighted work. New technologies like photocopying and videotaping make this issue more prominent today. Some copyright owners think that the individual’s copying for private use is harmful to their potential market and they argue for compensation. Does the individual have the right under the personal use principle to reproduce the copyrighted work for private …

Fair Use In American And Continental Laws, Omar M.A. Obeidat

LLM Theses and Essays

Intellectual property, unlike tangible property, does not exclusively occupy one place at a designated time. Instead, intellectual property is composed of information which can be reproduced or used in multiple places at any given time. This fundamental difference between intellectual and tangible property is reflected in the legal provisions that regulate these types of property. There are two dominant theories that justify the legal protection of intellectual property: the individualistic European approach, and the commercial Anglo-American approach. Under the European approach, the protection of the creation is a natural right guaranteed to the author. In other words, natural law guarantees …

Copyright And Free Speech Rights, L. Ray Patterson, Stanley F. Birch, Jr.

Scholarly Works

By letter of 1 March 1993, the Copyright Compliance Office of the Association of American Publishers (AAP) informed a copyshop that it had “without prior permission, made multiple copies of excerpts of copyrighted works for distribution to students in course anthologies.” Stating that this copying was an infringement of copyright, the letter requested the copyshop to sign an enclosed agreement stating it would not commit such acts again and to pay a penalty of “$2,500 to help defray the costs of the AAP's copyright enforcement program in this matter and to impress on your business the need to operate in …

Copyright Duration Extension And The Dark Heart Of Copyright, Marci A. Hamilton

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Remembering Melville Nimmer: Some Cautionary Notes On Commercial Speech, William W. Van Alstyne

Faculty Scholarship

This examination concerns itself with two main questions: what qualifies as commercial speech and how much protection does commercial speech enjoy under the First Amendment when compared to other forms of speech. The trend of the Court indicates that commercial speech enjoys protections similar to political speech.

The Continental Moral Rights Doctrine And Its Applicability In The United States Copyright System, Oswaldo Jose Quintana

LLM Theses and Essays

In the last half of the twentieth century, international copyright protection has become of much greater concern as the copyright industry has become supranational. Treaties enacted in the last ten years such as the Berne Convention Implementation Act, the Uruguay Round Agreements Act, and the Agreement on Trade-Related Aspects of Intellectual Property Rights, provide the highest copyright protection available at the international level. Global piracy has declined in the last several years because of these provisions. However, the adherence by the United States to these treaties has caused controversy; some maintain that it represents a major overhaul of federal law …