Intellectual Property Law Commons^™

Book Review. From Edison To Ipod: Protect Your Ideas And Make Money By Frederick W. Mostert And Lawrence E. Apolzon, Yvonne Cripps

Articles by Maurer Faculty

No abstract provided.

Under Construction: Towards A More Deferential Standard Of Review In Claim Construction Cases, Jeffrey Peabody

Maurer Student Articles

No abstract provided.

The International Enclosure Movement, Peter K. Yu

Indiana Law Journal

No abstract provided.

On Virtual Worlds: Copyright And Contract Law At The Dawn Of The Virtual Age, Erez Reuveni

Indiana Law Journal

This Article argues that copyright law can and should apply to artistic and literary creations occurring entirely in virtual worlds. First, the Article introduces the concept of virtual worlds as places millions of people visit not only for entertainment but also for life and work. Second, the Article reviews the philosophical justifications for copyright, examines objections to applying copyright to virtual, rather than real, creative works, and concludes that neither precludes copyright for virtual creations. Third, the Article articulates how copyright law would function within virtual spaces and reviews copyrightable creations from the perspective of both game developers and players. …

Lessons From The Trademark Use Debate, Mark D. Janis, Graeme B. Dinwoodie

Articles by Maurer Faculty

In their response to our article Confusion Over Use: Contextualism in Trademark Law, Professors Dogan and Lemley discard more all-encompassing versions of the trademark use requirement. Instead, they seek to delineate and defend a "more surgical form" of trademark use doctrine. In this reply, we demonstrate that the language of the Lanham Act does not impose a trademark use requirement even when that requirement is defined "surgically" and sections 32 and 43(a) are read "fluidly," as Dogan and Lemley suggest. Moreover, their interpretation still renders section 33(b)(4) redundant and unduly limits appropriate common law development of trademark law. We also …

Confusion Over Use: Contextualism In Trademark Law, Mark D. Janis, Graeme B. Dinwoodie

Articles by Maurer Faculty

This paper tackles an intellectual property theory that many scholars regard as fundamental to future policy debates over the scope of trademark protection: the trademark use theory. We argue that trademark use theory is flawed and should be rejected. The adoption of trademark use theory has immediate practical implications for disputes about the use of trademarks in online advertising, merchandising, and product design, and has long-term consequences for other trademark generally. We critique the theory both descriptively and prescriptively. We argue that trademark use theory over-extends the search costs rationale for the trademark system, and that it unhelpfully elevates formalism …

Technological Change And The Design Of Plant Variety Protection Regimes, Mark D. Janis, Stephen Smith

Articles by Maurer Faculty

No abstract provided.

Propertizing Thought, Kevin Emerson Collins

Articles by Maurer Faculty

No abstract provided.

Constructive Nonvolition In Patent Law And The Problem Of Insufficient Thought Control, Kevin Emerson Collins

Articles by Maurer Faculty

No abstract provided.

The Right Of Publicity: A Comparative Perspective, Marshall Leaffer

Articles by Maurer Faculty

No abstract provided.

Opting Out: Procedural Fair Use, Michael Mattioli

Articles by Maurer Faculty

This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright's doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn't want their books scanned. Despite this measure, two major authors' groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract …

Consumer Modification Of Copyrighted Works, Alan L. Durham

Indiana Law Journal

No abstract provided.

A Technological Theory Of The Arms Race, Lee Kovarsky

Indiana Law Journal

Although the "technological arms race" has recently emerged as a vogue-ish piece of legal terminology, scholarship has quite conspicuously failed to explore the phenomenon systematically. What are "technological" arms races? Why do they happen? Does the recent spike in scholarly attention actually reflect their novelty? Are they always inefficient? How do they differ from military ones? What role can legal institutions play in slowing them down?

In this Article I seek to answer these questions. I argue that copyright enforcement and self-help represent substitutable tactics for regulating access to expressive assets, and that the efficacy of each tactic depends on …

All Mixed Up: Bridgeport Music V. Dimension Films And De Minimis Digital Sampling, Jennifer R. R. Mueller

Indiana Law Journal

No abstract provided.

Rules V. Standards For Patent Law In The Plant Sciences, Mark D. Janis

Articles by Maurer Faculty

This article argues that US patent jurisprudence as applied to the plant sciences is moving to a second stage that will be characterized by more by incremental calibration than by spectacular change. The article discusses two doctrines of patent scope that are likely to be implicated in calibrating the utility patent system for the plant sciences: enablement and experimental use. It considers how those doctrines may be refined to serve as calibration tools in the application of patent law to the plant sciences.

Indiana Law In Evolution, Yvonne Cripps

Articles by Maurer Faculty

No abstract provided.

Dilution's (Still) Uncertain Future, Mark D. Janis, Graeme B. Dinwoodie

Articles by Maurer Faculty

No abstract provided.

The Impact Of Open Source On Preinvention Assignment Contracts, Michael Mattioli

Articles by Maurer Faculty

This comment studies the implications of open source on pre-invention assignment agreements. Part I analyzes the basis for past enforcement of these contracts, with an eye toward distinctions between open source projects and more traditional commercial endeavors. Part II briefly reviews the history of patents and explores constitutional and contract-based arguments against the pre-invention assignment. Part III begins with a discussion of open source and then explores how this new phenomenon perfectly fulfills the goals behind the Patent Act. With these addressed, the central inquiry of pre-invention assignment agreements, as they could conflict with open source inventions, will be addressed. …

Stopping The "Savage Indian" Myth: Dealing With The Doctrine Of Laches In Lanham Act Claims Of Disparagement, Steven R. Latterell

Indiana Law Journal

No abstract provided.

Innovation Policy In Telecommunications: Revisiting The Successes Of Guglielmo Marconi, John M. Williamson

Federal Communications Law Journal

Book Review: Signor Marconi's Magic Box: The Most Remarkable Invention of the 19th Century & the Amateur Inventor Whose Genius Sparked a Revolution, Gavin Weightman, Cambridge, Mass.: Da Capo Press, 2003, 312 pages.

A review of Gavin Weightman's Signor Marconi's Magic Box, Da Capo Press, 2003. An entertaining and informative biography of the inventor of applied wireless communications, this book also gives practical insight into the effect of patent policy on innovation. The Marconi story parallels the challenges faced by today's telecommunications innovators and offers a significant historical perspective relevant to present-day debates over the direction of innovation policy and …

The Broadcast Flag: It's Not Just Tv, Wendy Seltzer

Federal Communications Law Journal

No abstract provided.

Broadcast Flags And The War Against Digital Television Piracy: A Solution Or Dilemma For The Digital Era?, Debra Kaplan

Federal Communications Law Journal

With the advent of digital TV, many homes in the U.S. are now on the cutting edge of what is likely to be a sea change in how this country watches TV. While these homes can now begin to enjoy the numerous benefits of the technology, regulators and industry experts are working to craft responses to problems, both actual and anticipated, that the technology creates. Mindful of the piracy issues that came with the popularity of digital file formats in the music industry, the FCC addressed piracy in the digital TV context by endorsing the use of "broadcast flags" on …

An Introduction To Lessigian Thought, Russ Taylor

Federal Communications Law Journal

Book Review: Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lawrence Lessig, New York: Penguin Press, 2004, 306 pages.

A review of Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity by Lawrence Lessig. Lawrence Lessig is a frequent commentator and prolific writer on media and communications topics. His body of work touches copyright issues, radio spectrum policy, media ownership issues, and legal ownership and control of the physical platforms that deliver broadband content. In this 2004 publication, he focuses on copyright policy. …

Localizing Intellectual Property In The Globalization Epoch: The Integration Of Indigenous Knowledge, Chidi Oguamanam

Indiana Journal of Global Legal Studies

No abstract provided.

Staying Afloat In The Internet Stream: How To Keep Web Radio From Drowning In Digital Copyright Royalties, Emily D. Harwood

Federal Communications Law Journal

In the 1990's, the development of "streaming" technology allowed webcasters to begin broadcasting music on the Internet. The public took advantage of a plethora of free media players, and the number of web-based radio stations soared. However, a crippling dispute over broadcast rates left the viability of this technology in doubt. This Note criticizes current policies that curtail radio streaming by providing harsh financial restrictions on webcasters. In looking to the future, this Note argues that Congress should extend licensing exemptions to cover those Internet stations most like their AM/FM counterparts who do not have to pay additional fees.

The Art And Science Of Genetic Modification: Re-Engineering Patent Law And Constitutional Orthodoxies (The Harry T. Ice Chair Inaugural Lecture), Yvonne Cripps

Indiana Journal of Global Legal Studies

The Harry T. Ice Chair Inaugural Lecture

Equilibrium In A Technology-Specific Patent System, Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

Supplemental Forms Of Intellectual Property Protection For Plants, Mark D. Janis

Articles by Maurer Faculty

A new hierarchy of intellectual property protection for plant innovation is emerging. Utility patent protection is poised to become the dominant intellectual property mechanism for plants in the U.S. and perhaps elsewhere. Plant breeder's rights systems continue to garner a dedicated following, especially in developing countries, as a means for complying with international intellectual property treaty obligations. But while utility patent and plant breeder's rights regimes have come to occupy the first tier of the intellectual property hierarchy for plants, other forms of intellectual property protection remain important, albeit in a supplemental role. This article surveys supplemental intellectual property strategies …

Reforming Patent Validity Litigation: The "Dubious Preponderance", Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

Life After Eldred: The Supreme Court And The Future Of Copyright, Marshall Leaffer

Articles by Maurer Faculty

No abstract provided.