Intellectual Property Law Commons^™

Thwack!! Take That, User-Generated Content!: Marvel Enterprises V. Ncsoft, Carl Michael Szabo

Federal Communications Law Journal

Comic-book heroes show us how to be valiant, how to fight for those less fortunate, and, in some circumstances, how to combat those who break the law. Such is the situation in the case of Marvel Enterprises, Inc. v. NCSofl Corp., a battle between user-generated content and the copyright violations that resulted.

While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed, could endanger the protection afforded to authors. Federal and state suits have …

The Sound Of Money: Securing Copyright, Royalties, And Creative "Progress" In The Digital Music Revolution, Armen Boyajian

Federal Communications Law Journal

Academics and popular critics alike want to distill, reform, or altogether destroy U.S. copyright law as we know it. Much of this stems from animosity toward the old-guard record industry's alleged practices of overcharging consumers, underpaying royalties to artists, and suing teenagers and grandmas. But what those calling for reform all seem to neglect is a tiny but inevitable fact: for the first time in history, composers and recording artists can keep their copyrights.

Tangible media sales are being replaced by P2P file sharing, retail downloads, and streaming Webcasts. Digital technologies and wireless networks have opened prime channels for music …

Dynamic Federalism And Patent Law Reform, Xuan-Thao Nguyen

Indiana Law Journal

Patent law is federal law, and the normative approach to patent reform has been top down, looking to Congress and the Supreme Court for changes to the broken and complex patent system. The normative approach thus far has not yielded satisfactory results. This Article challenges the static approach to patent reform and embraces the dynamic-federalism approach that patent reform can be an overlapping of both national and local efforts. Patent reform at the local level is essential as locales can serve as laboratories for changes, vertically compete with national government to reform certain areas of the patent system, and become …

A Cause Of Action For "Passing Off/Associational Marketing", Margreth Barrett

IP Theory

The Trademark Scholars Roundtable participants discussed a wide range of approaches to understanding and limiting the ever-increasing sprawl of trademark rights. It was a productive and stimulating discussion. In this essay, I would like to combine some of my own ideas with points and suggestions made by the other participants, to sketch out a possible judicial approach to regulating the sprawl. Before discussing a potential solution, however, it is important to understand the nature of the problem, and some of its primary causes.

Section I will discuss the problem and set the stage for my proposal. Section II will then …

Whose Burden Is It Anyway? Addressing The Needs Of Content Owners In Dmca Safe Harbors, Greg Janson

Federal Communications Law Journal

Much of today's network neutrality debate addresses concerns that cable providers will limit access to competing Web-based services delivering multimedia content. While proposals to mandate nondiscrimination for all Internet traffic surely will help create a competitive environment where online entertainment providers can prosper, ISP interference is not the only threat. Online entertainment sites that relay user-generated content are threatened by crippling litigation brought by copyright holders for actions taken by third parties using their services. Reliance on the safe harbors provided in the Digital Millennium Copyright Act has, in most cases, proved unsuccessful. This Note addresses the concerns of both …

Panel Ii: The Global Contours Of Ip Protection For Trade Dress, Industrial Design, Applied Art, And Project Configuration, Mark D. Janis, Susan Scafidi, Orit Fischman Afori, Wendy J. Gordon, Jonathan Moskin

Articles by Maurer Faculty

No abstract provided.

Cooling-Off And Secondary Markets: Consumer Choice In The Digital Domain, Michael Mattioli

Articles by Maurer Faculty

This article studies the law and economics of cooling-off periods and secondary markets for online media. The discussion is fueled by a current debate: In July 2009, the online retail juggernaut, Amazon.com, remotely deleted literary classics from consumers’ portable “Kindle” reading devices. The public outcry and class-action lawsuit that followed have reinvigorated an ongoing debate about how much control digital media distributors should wield. Pundits and plaintiffs argue that too often, digital distributors like Amazon impair consumer freedom by misusing Digital Rights Management (DRM) software systems. However, these same systems could also provide significant benefits that have largely gone ignored. …

Patent Misuse And Innovation, Marshall Leaffer

Articles by Maurer Faculty

No abstract provided.

Even More Complex After All These Years: What The Complexity Of The “How?” Question Of Tailoring Claim Scope Has To Say About The “Who?” Question, Kevin E. Collins

IP Theory

No abstract provided.

Life In The Fast Lane: Of Presumptions, Defenses, And Burdens, William Mcgeveran

IP Theory

No abstract provided.

Complex Economics And Patent Remedies, John M. Golden

IP Theory

No abstract provided.

Markets For Patent Scope, Ted M. Sichelman

IP Theory

A recurring issue in intellectual property theory is how the scope of patent rights affects invention and commercialization. Traditionally, there has been a dichotomous debate: one view stemming from Ed Kitch, promoting broad “prospect”-style patents in the hands of a single inventor, and another view from Robert Merges and Richard Nelson, advocating relatively narrow scope to encourage competition in innovation. More recently, a variety of scholars have set forth more nuanced positions. My thesis here is that the variance in these views can be traced to differing empirical attitudes about how well the market functions relative to a patent system …

The Role Of Patent Eligibility In Policing Claim Scope, Christopher M. Holman

IP Theory

No abstract provided.

Formalism, Realism, And Patent Scope, Tun-Jen Chiang

IP Theory

No abstract provided.

Substantive Claim Construction As A Patent Scope Lever, Peter Lee

IP Theory

No abstract provided.

Patent Claiming In The United States: Central, Peripheral, Or Mongrel?, Martin J. Adelman

IP Theory

No abstract provided.

Statute Of Anne: Today And Tomorrow, Marshall Leaffer, Peter Jaszi, Craig Joyce, Tyler Ochoa

Articles by Maurer Faculty

No abstract provided.

Success, Dominance, And Interoperability, Alan Devlin, Michael Jacobs, Bruno Peixoto

Indiana Law Journal

In September 2007, the European Court of First Instance (CFI) ruled that Microsoft violated the European Union's competition law by failing to provide certain of its rivals with proprietary computer protocols that would have enabled them to make their products fully "interoperable" with Microsoft's dominant operating system. In the process, the court suggested that an owner of certain kinds of dominant intellectual property is obliged to share its property with rivals to the extent necessary to allow those rivals to compete "viably" with the dominant firm. Thus, in theory, should protocol sharing fail to achieve the requisite degree of "viability, …

The Riaa, The Dmca, And The Forgotten Few Webcasters: A Call For Change In Digital Copyright Royalties, Kellen Myers

Federal Communications Law Journal

Emerging webcasting technology is playing an increasing role in modem society. The ease of use of webcast technology has brought about an increased user base as well as an increased viability for small webcasting businesses. However, the mix-tape genre of independent Internet radio has been financially and legislatively abused as a forerunner of rapidly advancing digital technology and concerns over protecting copyright royalties. This Note argues for a revision of the DMCA to provide a middle ground between protecting copyrighted works and allowing the continued existence of Internet radio.

Copytraps, Ned Snow

Indiana Law Journal

Congress has unintentionally evoked copytraps, which exact thousands of dollars from the Internet user who innocently buys music without knowing that it infringes copyright. Copytraps arise when Web sites lure innocent users into downloading expression that seems legal but is actually infringing. Regardless of whether the Web site appears legitimate, whether a user's good-faith belief is reasonable, or whether the Web site owner is unaware that the material is infringing, users who download infringing material face strict liability punishment, and the penalties are severe. It is entrapment, with the spoils from the innocent going to large corporate copyright holders. The …

Enabling After-Arising Technology, Kevin Emerson Collins

Articles by Maurer Faculty

No abstract provided.

Patents And Traditional Medicine: Digital Capture, Creative Legal Interventions And The Dialectics Of Knowledge Transformation, Chidi Oguamanam

Indiana Journal of Global Legal Studies

This article examines the debate over the exclusion of indigenous or local knowledge forms from the global intellectual property system, and some of the current attempts to solve this problem. Using the lens of cultural cosmopolitanism, the article highlights important trends in the dialectics of developing countries' engagement with intellectual property and other collateral knowledge protection systems. The three sites at which this significant development is unfolding are: (1) the digitization of traditional medicinal knowledge through India's traditional knowledge digital library (TKDL) project; (2) a recent attempt at incorporating innovations in Chinese Herbal Medicine (CHM) in Taiwanese patent law; and …

Re-Evaluating Declaratory Judgment Jurisdiction In Intellectual Property Disputes, Lorelei Ritchie De Larena

Indiana Law Journal

The Declaratory Judgment Act of 1934 was quickly tagged by the US. Supreme Court as a simple procedural measure. That said, the addition of the declaratory judgment option has dramatically increased the rights of would-be defendants. This is of special interest in patent law, where without the ability to initiate legal action, an alleged infringer would typically have no recourse but to either drop a lucrative business and lose a massive investment, or to languish in legal limbo while potentially accruing liability for treble damages. The option of a mirror-image lawsuit removes the patentee's ability to decide unilaterally when, where-and, …

The U.S. Patent And Trademark Office's Proposed Information Disclosure Statement Rules: Too Novel And Nonobvious, Russell S. Magaziner

Indiana Law Journal

No abstract provided.

Patents Of Damocles, Christopher R. Leslie

Indiana Law Journal

No abstract provided.

International Comparative Aspects Of Trademark Dilution, Mark D. Janis, Peter K. Yu

Articles by Maurer Faculty

No abstract provided.

The Reach Of Literal Claim Scope Into After-Arising Technology: On Thing Construction And The Meaning Of Meaning, Kevin Emerson Collins

Articles by Maurer Faculty

Broadly speaking, courts and commentators have offered two theories to explain the relationship between the literal scope of a patent claim and after-arising technology (AAT), i.e. technology that is not discovered until after a claim has been filed. The fixation theory asserts that claim scope is and/or should be fixed on the date a claim is filed and that this fixation makes it impossible for the claim to encompass AA T because a claim must grow in some sense after the filing date in order to encompass AA T. In stark contrast, the growth theory argues that literal claim scope …

Claims To Information Qua Information And A Structural Theory Of Section 101, Kevin Emerson Collins

Articles by Maurer Faculty

In this article, I start from the premises that claims to inventive information qua information are not and should not be patentable, and I pursue two lines of inquiry. First, I argue that a structural theory of Section l0l of the Patent Act provides a policy-driven, conceptually coherent and statutorily justified interpretation that explains why claims to inventive information qua information should be excluded from the realm of patentable subject matter. In brief, patentable subject matter must be restricted in this manner to preserve the duality of claiming and disclosing upon which the entire patent regime is constructed.

Second, I …

Patients Without Borders: The Emerging Global Market For Patients And The Evolution Of Modern Health Care, Nathan Cortez

Indiana Law Journal

No abstract provided.

Combining The Components Of Life: The Application Of Patent Extraterritoriality Doctrine To Biotechnology, Jennifer L. Schuster

Indiana Law Journal

No abstract provided.