Intellectual Property Law Commons^™

Technoconsen(T)Sus, Andrea M. Matwyshyn

ExpressO

Law is contributing to an information security paradox. Consumers are regularly “consenting” to the installation of computer code that makes them more vulnerable to harms such as identity theft. In particular, digital rights management technology accompanying digital music has recently left a wake of compromised user machines. Using the case study of security-invasive digital rights management technology, this article argues that a fundamental tension exists among intellectual property law, computer intrusion law and contract law regarding meaningful consumer consent in digital contexts. This article proposes to ease the noise in consent doctrine through creating an objective “reasonable digital consumer” standard …

Open Source, Free Software And Contractual Issues, Jose Javier González De Alaiza

ExpressO

“Free software” is an increasingly used form to license computer programs, which on the one hand gives users the rights to use, modify and redistribute the program; and, on the other, forces any person redistributing an original or modified version of the program to license it with the same rights. Such a forced obligation is introduced through the so called “copyleft clause” and, basically, uses Copyright in a creative way to achieve freedom instead of control.

This paper discusses the “free software” foundations and contractual issues. The discussion is structured in two main parts and Conclusion. In Part II, the …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering For Interoperability Purposes, Daniel Laster

ExpressO

As patent protection has emerged to protect software, courts and commentators have mistakenly focused on copyright law and overlooked the centrality of patent preemption to limit contract law where a mass market license which prohibits reverse engineering (RE) for purposes of developing interoperable products leads to patent-like protection. Review of copyright fair use cases on RE and Congress’s policy favoring RE for interoperability purposes in the Digital Millennium Copyright Act reinforce the case for patent preemption. Also, the fundamental freedom to RE embodied in state trade secret law, coupled with federal patent and copyright law and policies, cumulatively should override …

Intellectual Property: Trade Secrets And The Federal Tort Claims Act/Dd Form 882 Over Substance: Caveat Forfeiture, Katherine E. White

Law Faculty Research Publications

No abstract provided.

Unravelling The Myth Around Open Source Licences - An Analysis From A Dutch And European Law Perspective, Lucie Guibault, Ot Van Daalen

Books

Open source software licences are based on two fundamental principles: the possibility for users to use the software for any purpose and the possibility to modify and redistribute it without prior authorisation from the initial developer. Some open source software licences, like the General Public Licence (GPL), also impose a corollary obligation on the licensee: to make the source code available to other developers. The idea behind this form of licensing is that when programmers can read, redistribute and modify the source code for a piece of software, the software evolves. A number of legal challenges need to be addressed …

Why Sell What You Can License?, Contracting Around Statutory Protection Of Intellectual Property, Elizabeth I. Winston

Scholarly Articles

Historically, the transfer of goods has been through sale, a model regulated by public legislation. Increasingly, however, the transfer of goods is occurring through licensing, a model regulated by private legislation. Privately-legislated licenses - for such chattels as musical and written works and agricultural goods - are being used to circumvent publicly-legislated restrictions on intellectual property. Private legislation should not circumvent public legislation, and intellectual property owners should not be allowed to circumvent the statutory scheme for protection of intellectual property. Licenses that augment publicly-legislated protection of intellectual property support the traditional role of contracts and should be enforced. Licenses …

The Use Of Mtas To Control Commercialization Of Stem Cell Diagnostics And Therapeutics, Sean O'Connor

Articles

The recent focus on patents as a hindrance to stem cell research may turn out to be a red herring. The real culprits are material transfer agreements (MTAs), which govern the transfer of cell lines and other biological materials. The MTA’s primary purpose in life sciences research is to set contractual rights and obligations between parties where one party transfers biological materials to the other. For example, MTAs often focus on the physical handling, use, and distribution of the materials by the recipient, ensuring that the recipient complies with regulations for research involving humans or animals.

Although these interests are …

An Authors' Rights-Based Copyright Law: The Fairness And Morality Of French And American Law Compared, Jean-Luc Piotraut

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Identity Theft: Tribute Bands, Grand Rights, And Dramatico-Musical Performances, Brent Giles Davis

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

'Treaties', 'Agreements', 'Contracts' And 'Commitments' - What's In A Name? The Legal Force And Meaning Of Different Forms Of Agreement Making, David Llewelyn, Maureen Tehan

Research Collection Yong Pung How School Of Law

The multi-dimensional nature of treaty and agreement making has assumed a central focus in the conduct of relations between Indigenous peoples and settlers in Australia and elsewhere. Whether as a means of resolving disputes, delivering government programmes, or establishing common understandings, agreement making, however defined and named, has become the key tool for engagement between Indigenous and non-Indigenous Australians. Agreements come in all shapes and sizes ranging from registered Indigenous Land Use Agreements (ILUA) to Statements of Commitment, Memorandums of Understanding and Regional Agreements. In other jurisdictions these may be called 'treaties'. This paper examines the plethora of agreements in …

Traditional Knowledge & Intellectual Property: A Trips-Compatible Approach, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Should intellectual property provide a means for strengthening the range of incentives that local communities need for conserving and developing genetic resources and traditional knowledge (TK)? If so, how and at what cost? To be able to suggest answers, a number of issues must be resolved. They are the focus of the Article. First, one must build, and then cross, a cultural bridge to explain current forms of intellectual property to holders of traditional knowledge, including definitional efforts to determine the nature and depth of the overlap(s). This achieves a dual objective: it allows intellectual property circles to understand and …

Losing Rights To Intellectual Property: The Perils Of Contracting With The Federal Government, Katherine White

Law Faculty Research Publications

No abstract provided.

When Trade Secrets Become Shackles: Fairness And The Inevitable Disclosure Doctrine, Elizabeth A. Rowe

UF Law Faculty Publications

Critics of the inevitable disclosure doctrine decry the inconsistency with which courts rule on these cases, and the difficulty in predicting case outcomes. They contend that courts are left to "grapple with a decidedly ... nebulous standard of 'inevitability."' Further, they claim the doctrine undermines the employee's fundamental right to move freely and pursue his or her livelihood.

Ultimately, both the problem and solution here are about fairness: fairness in the employer-employee relationship, fairness in the application of the law, and fairness in providing protection from unfair competition between competing employers. The crux of the opposition to the doctrine, in …

Comptroller Of City Of New York V. Mayor Of New York (Decided July 29, 2004), Leslie Spitalnick

NYLS Law Review

No abstract provided.

Private Protection Of Patentable Goods, Jonathan M. Barnett

Cardozo Law Review

No abstract provided.

Footnote Draft Of Render Copyright Unto Caesar - 2004, Wendy J. Gordon

Scholarship Chronologically

This essay, however, does not press any particular agenda; rather, it tries to make our thinking about the topic more flexible. It is my hope that some conduct-specific rule as was adopted in the defamation context will eventually be adopted for intellectual property. Copyright law cannot continue forever closing its eyes and hoping its house will stop being haunted.

Blame It On Rio: Biodiscovery, Native Title, And Traditional Knowledge, Matthew Rimmer

Aboriginal Policy Research Consortium International (APRCi)

This article examines the legal responses to protect traditional knowledge of biodiversity in the wake of the Rio Convention on Biological Diversity. It considers the relative merits of the inter- locking regimes of contract law, environmental law, intellectual property law, and native title law. Part 1 considers the natural drug discovery industry in Australia. In particular , it looks at the operations of Amrad, Astra Zeneca R & D, and the Australian Institute of Marine Science. This section examines the key features of the draft regulations proposed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - model contracts, …

The Sense And Nonsense Of Web Site Terms Of Use Agreements, Sharon Sandeen

Faculty Scholarship

This article examines the purpose, use and enforceability of TOUs. In so doing it looks beyond the common question of whether TOUs are enforceable to ask whether and under what circumstances TOUs are necessary. This article explores whether the nature of the Internet is so different from the brick-and-mortar world that TOUs are needed for web sites but not for retail stores. A review of many of the existing TOUs reveals that major differences exist in the number and nature of their provisions. On one extreme are the TOUs of companies like Disney, Barnes and Noble and Amazon that apparently …

Idea Men Should Be Able To Enforce Their Contractual Rights: Considerations Rejecting Preemption Of Idea-Submission Contract Claims, Celine Michaud, Gregory Tulquois

Vanderbilt Journal of Entertainment & Technology Law

It is a long-standing and general rule that ideas are "free as the air" as Justice Brandeis eloquently stated in the dissent to the seminal case International News Service v. Associated Press.' This axiom of copyright law expresses the idea that copyright does not protect ideas but only protects the expression of ideas in a work. The distinction between unprotected ideas and protected expression is often referred to as the idea-expression dichotomy...

The principle of the idea-expression dichotomy was initially stated in Baker v. Selden, and later cases further articulated this principle, so that it has become one of the …

4th Annual Computer & Technology Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 4th Annual Computer & Technology Law Institute held by UK/CLE in November 2002.

Trade Secrets, Property, And Social Relations, Steven Wilf

Faculty Articles and Papers

No abstract provided.

Copyright Limitations And Contracts. An Analysis Of The Contractual Overridability Of Limitations On Copyright, Lucie Guibault

Articles, Book Chapters, & Popular Press

Traditional copyright law strikes a delicate balance between an author's control of original material and society's interest in the free flow of ideas, information, and commerce. In today's digitally networked environment, this balance has shifted dramatically to one side, as powerful rights holders contractually impose terms and conditions of use far beyond the bounds set by copyright law. This vitally significant book explores this conflict from its gestation through its current manifestations to its future lineaments and potential consequences. Focusing on statutory copyright limitations that enshrine constitutional rights such as freedom of expression and privacy, foster dissemination of knowledge, safeguard …

Crossroads: Modern Contract Dissatisfaction As Applied To Songwriter And Recording Agreements, 35 J. Marshall L. Rev. 795 (2002), Todd M. Murphy

UIC Law Review

No abstract provided.

Common Law And Statutory Restrictions On Access: Contract, Trespass, And The Computer Fraud And Abuse Act, Maureen A. O'Rourke

Faculty Scholarship

Is copyright law relevant to the terms of access to information? Certainly, few would seriously contend that breaking into a locked filing cabinet to obtain access to a manuscript is not sanctionable, even if the intruder had some purpose that copyright law would applaud with respect to the information contained in the manuscript itself. Many instinctively believe that one must pay the asking price and respect the terms that accompany a copyrighted work or face the consequences under some set of laws like copyrights or contracts. In short, society likely generally believes that market forces regulate the conditions of access …

Singing Machines: Boy Bands And The Struggle For Artistic Legitimacy, Maria A. Sanders

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Legal Protection For Software: Still A Work In Progress, Robert W. Gomulkiewicz

Articles

Software began as geekware-something written by programmers for programmers. Now, software is a business and consumer staple. Cryptic character-based user interfaces have given way to friendly graphical ones; multi-media is everywhere; people own multiple computers of varying sizes; computers are connected to one another across the globe; email and instant electronic messages have replaced letters and telephone calls for many people.

The issue of whether the law should protect software seems quaint to us now. Over the past twenty-five years, legislatures and courts have concluded that copyright, patent, trade secret, trademark, and contract law all can be used to protect …

Trade Secrets, Non-Competes, And Unfair Competition, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on Trade Secrets, Non-Competes, and Unfair Competition held by UK/CLE in October 2001.

Could Fair Use Equal Breach Of Contract?: An Analysis Of Informational Web Site User Agreements And Their Restrictive Copyright Provisions, Matthew D. Walden

Washington and Lee Law Review

No abstract provided.