Intellectual Property Law Commons^™

From America Online To America, Online: Reassessing Section 230 Immunity In A New Internet Landscape, Madeleine E. Blair

Georgia Journal of Law & Technology

In 1996, Congress passed the Communications Decency Act, a body of legislation aimed at regulating a nascent internet. Section 230 of the Act has become a subject of contention on both sides of the political aisle due to an immunity provision in the law barring private actions against online service providers for the conduct of those services’ users. Few lawsuits against online entities have survived this immunity provision. But two successful cases, Lemmon v. Snap, Inc. and A.M. v. Omegle.com, LLC, have used a products liability theory to overcome the limitation.

This Note examines Section 230 in light of these …

Rethinking "Reasonableness": Implementation Of A National Board To Clarify The Trade Secret Standard Now That The Work-From-Home Culture Has Changed The Rules, Hannah E. Brown

Georgia Journal of Law & Technology

Under the federal Defend Trade Secrets Act (“DTSA”), almost any type of information can qualify as a trade secret but only if the owner has taken “reasonable measures” to keep such information secret. Under case law, what is “reasonable” varies and may differ based on the court, the company size, and the particular facts of each situation. The interpretation of what is “reasonable” must change with the times, specifically, to take into consideration the sharp increase in remote work that accompanied the COVID-19 pandemic. The rise in remote work necessarily means more servers accessing data and more remote transmission of …

Intellectual Heirs Property: Why Certain Musical Copyrights Should Be Included In The Heirs Property Reform Movement, Austin Weatherly

Georgia Journal of Law & Technology

The modern heirs property reform movement seeks to ameliorate the issues caused by the procedures governing the inheritance of real property from landowners who die intestate. This procedure can have a negative impact on heirs and the value of their inherited property. The reform movement, as it stands, only seeks to resolve the issues created by these procedures in the real property context. The rhetorical basis for the modern heirs property reform movement largely focuses on closing the racial wealth gap in the United States and slowing the wealth bleed from one black generation to the next. Many of the …

Exposing The “Folklore” Of Re-Recording Clauses (Taylor’S Version), Justin Tilghman

Georgia Journal of Law & Technology

Many artists believe that their significance, power, or notoriety comes from how many GRAMMY awards they have won or how well their albums sales do the first week. However, very few artists recognize that the true power comes in the form of owning the rights to their master recordings. Given how difficult it is to achieve commercial success as an independent artist, many artists will turn to major record companies to help with their music production and distribution. This help, however, is not unconditional. The artist will sign over the master recording rights to the song or album to the …

Greasing The Wheels Of Patent Law: Clarifying The Judicial Exceptions Via American Axle & Manufacturing, Inc. V. Neapco Holdings Llc, Michael Oliver

Georgia Journal of Law & Technology

Patents stimulate the economy, they give inventors (and investors in the patent) confidence that their work will be protected. You have never been able to patent laws of nature, natural phenomena or abstract ideas. These combine to create the judicial exceptions. The issue is that these terms are so broad that it is difficult to determine when a patent is connected to a judicial exception. The Supreme Court created the Alice test, a two-part test to determine whether a claim is tied to a judicial exception. That was back in 2014 and is the last time the Supreme Court has …

When A “+” Doesn’T Add Anything In The Equation: Analyzing The Effect Of The “+” On Trademark Law, Vasilios Nasoulis

Georgia Journal of Law & Technology

In the past decade, there has been a growing trend where companies use the plus sign, “+”, in their branding. From industry titans like Google and Apple to smaller, niche companies like World Champ Tech, there has been an increased use of the + in product and service names. This raises trademark questions about how the mark should be protected and how does the + change the meaning of a name. Trademarks are designed to protect producers as well as consumers from deceit, miscommunication, and misunderstanding. The + potentially denies producers and consumers these protections.

Another trend in the past …

Reconsidering The Willful Blindness Doctrine In Contributory Trademark Infringement, Andrew Ligon Fant

Georgia Journal of Law & Technology

The Lanham Act provides for a cause of action of direct trademark infringement. In 1982 the Supreme Court effectively expanded that cause of action by allowing for traditional tort secondary liability in the context of manufacture and distribution of goods. Since that decision, the lower courts have adapted the doctrine of contributory trademark infringement to the modern world. One of those adaptations was the importation of the willful blindness doctrine from criminal law to trademark infringement law. The circuits have divergent standards for what knowledge is required for liability under willful blindness, and the Second Circuit appears to have multiple …

Patent Performativity, Dan L. Burk

Georgia Journal of Law & Technology

Gender bias is rife in the patent system; a large and growing body of empirical literature demonstrates the exclusion of women from the patent system at every level. Such pervasive marginalization cannot be explained by the paucity of women in STEM fields. Rather, more fundamental discriminatory mechanisms must be at work. In this paper I examine one aspect of such biases, arguing that patents operate as performatives, that is, as social assemblages that enact what they disclose, and that create their own social facts. To demonstrate patent performativity, I briefly trace the development of performative concepts, from Austinian declarations, through …

Protecting The Public Domain And The Right To Use Copyrighted Works: Four Decades Of The Eleventh Circuit’S Copyright Law Jurisprudence, David E. Shipley

Scholarly Works

This article is about the importance of the copyright law jurisprudence from the U.S. Court of Appeals for the Eleventh Circuit. This appellate court turns 40 in 2021, and it has rendered many influential copyright law decisions in the last four decades. Its body of work is impressive. This article discusses the court’s important decisions in the following areas: the originality standard; the application of the U.S. Supreme Court’s Feist decision to compilations, directories, computer software, architectural works, and other creative works like movies, photographs, and characters; copyright protection for unfixed works; the scope of the government edicts doctrine; and, …

Under The Umbrella: Promoting Public Access To The Law, D.R. Jones

Georgia Journal of Law & Technology

People need to know the law and have access to the law. Allowing copyright claims in “the law” can lead to severe restrictions on public knowledge and access. This article reviews court decisions spanning three centuries that have upheld the people’s needs over the proprietary rights of copyright holders. The review includes a discussion and analysis of three recent decisions that are under the umbrella of the principle that members of the public need unfettered access to the law. The Supreme Court in Georgia v. Public.Resource.Org reaffirmed and further refined the government edicts doctrine which holds that government edicts are …

Big Tech In A Small Pond: How The Internet Economy Became So Concentrated And What Sector-Specific Regulation Can Do To Reel It In, Andy Wilson

Georgia Journal of Law & Technology

While the early days of the internet were marked by a proliferation of new internet platforms offering different services, over time much of the sector became dominated by the handful of internet giants we know today. Discomfort with the outsized role that these enormous companies play in the daily lives of billions has driven a growing consensus that they need to be reined in, culminating in federal and state agencies launching a slew of antitrust suits against Google and Facebook in late 2020. These renewed antitrust efforts will likely be insufficient to address competitive harms in the internet economy, given …

Oof! Nice Try Congress – The Downfalls Case Act And Why We Should Be Looking To Our Cousins Across The Pond For Guidance In Updating Our New Small Claims Intellectual Property Court, Cori Henris

Georgia Journal of Law & Technology

The rise in copyright cases in the United States has led Congress to begin thinking about how to make it more accessible for small creators to fight for their rights in court. The current system for copyrights claims to be brought in the Federal system is too time consuming and costly. Leaving many creators with all the rights to protect their creations but no means to do so when they are infringed upon. The proposed CASE Act was supposed to be the solution. It would create a small claims court in the United States and provide for a location for …

A New Way For Voting In American Elections: Addressing The Patentability Of A Blockchain Mail-In Voting System, Brandon D. Waller

Georgia Journal of Law & Technology

The novel corona virus turned life upside down throughout the world in 2020. One of its many impacts was the fear it gave people of going out in public as doing such could increase the likelihood of contraction. This disease happened to come about during an election year in the United States and this raised many questions about how voting could be safely conducted. A hot topic debate took over America as to whether or not mail-in voting would suffice. The United States Postal Service sought to find a reliable way to conduct mail-in voting and filed for a patent …

Protecting The Public Domain And The Right To Use Copyrighted Works: Four Decades Of The Eleventh Circuit's Copyright Law Jurisprudence, David E. Shipley

Georgia Journal of Law & Technology

This article is about the importance of the copyright law jurisprudence from the U.S. Court of Appeals for the Eleventh Circuit. This appellate court turns 40 in 2021, and it has rendered many influential copyright law decisions in the last four decades. Its body of work is impressive, and this article discusses this court’s important decisions in the following areas: the originality standard; the application of the U.S. Supreme Court’s Feist decision to compilations, directories, computer software, architectural works, and other creative works like movies, photographs, and characters; copyright protection for unfixed works; the scope of the government edicts doctrine; …

Contextualizing Michael Jordan V. Qiaodan Sports: I Don’T Believe I Can Fly, Or Do Business, In China, Justin Blair

Georgia Journal of Law & Technology

To be a superstar in America means to live with the pressure of maintaining a certain reputation and level of popularity during one’s professional career. Fame in America often translates to fame internationally, and well-known individuals are typically incentivized to use the constantly evolving internet and media at their disposal to increase global exposure with respect to their brands. American celebrities consequently generate social and monetary capital, and while they willingly increase fan access into their personal lives, opportunistic individuals in foreign territories have on occasion successfully invaded the trademarks of these celebrities. This issue traces back to the turn …

Destruction, The Rebirth Of Art: Analyzing The Right Of Integrity’S Role In Modern Art, Connely Doizé

Georgia Journal of Law & Technology

Creative destruction uses destruction to create new meaning in a work. This process is best explained as a Phoenix, rising from the ashes of destruction. The term “Art” encompasses infinite meanings and in this Note, I argue that destruction constitutes one of them. Resulting from this connection, I argue that destruction, specifically Creative Destruction, must not be hampered by law. In 1990, Congress promulgated the Visual Artist Rights Act, 17 U.S.C.A. 106A. This legislation formally introduced the moral rights of attribution and integrity into United States legal doctrine. Specifically, the right of integrity grants an artist the right to prevent …

Poverty Via Monopolization: The Impact That Intellectual Property Rights And Federal Subsidies Have On Farm Poverty, Elizabeth Slater

Georgia Journal of Law & Technology

The poverty rate among farmers and those living in rural America is about four percent higher than those who live in metropolitan areas. The majority of these farmers rely on farm subsidies from the federal government to offset low farm profits. The seed price for these farmers has increased astronomically, with corn seed representing fifteen percent of total corn production expenses. Federal law contributes to the high input prices by allowing developers of new seed varieties to monopolize their research findings under the Plant Variety Protection Act and other intellectual property protection. Because of the complexity and expense of developing …

Boss Battle: Twitch Vs Proposed Amendments To The Knowledge Standard Under The Digital Millennium Copyright Act, Zachary Messick

Georgia Journal of Law & Technology

Under the Digital Millennium Copyright Act (DMCA), indirect theories of liability such as vicarious liability and contributory infringement have been inconsistently applied, leading the Copyright Office to recommend lowering the knowledge standard and increasing potential liability for Online Service Providers (OSPs). In this note, I will discuss the histories of vicarious liability and contributory infringement, which demonstrate that courts have correctly applied the standards under the DMCA. Further, through a case-study of Twitch, an up-and-coming streaming website, I will discuss how the proposed amendments drive against the policies underlying the indirect theories of liability and would destroy OSPs like Twitch. …

Gimme A Break: The Patent Term Restoration Act Should Give Environmental Innovators A Chance To Catch A (Cleaner) Breath, Gabrielle Gravel

Georgia Journal of Law & Technology

There is an abundance of frightening data painting a grim picture of Earth’s future. Humans have undoubtedly left a carbon footprint so deep, it will take drastic measures to undo our damage. To continue enjoying life as we know it, we humans must shift our focus to the powerful minds of creators and engineers to find ways to untangle our manmade webs. To generate interest and attract the best and brightest to do the challenging and time-consuming work of environmental inventions, the first step is to provide a greater incentive. This note calls upon the U.S. Patent and Trademark Office …

Design On Someone Else's Dime: The Profiteering Of Interior Designer's Works From A Lack Of Rights In The Modern Era, Kim Carlson

Georgia Journal of Law & Technology

Rooms once viewed as utilitarian in nature- places to work in, sleep in, or cook in- have gone through a dramatic transformation. Now, people view these rooms as an outward reflection of their style. In the last few decades, people’s eagerness to renovate these rooms exploded. As a result, home designer shows soared in popularity, garnering millions of views. Consumers flocked to different media forms and stores in search of the latest paint and furniture trends. The heightened demand, coupled with prevailing social media marketing, forced interior designers to become innovative in creating and advertising their services. While the increased …

Exit Stage, Enter Streaming: Copyright Of The Theatrical Stage Design Elements In A Changing Theater Industry, Mark Bailey

Georgia Journal of Law & Technology

Due to the pandemic, the entire theatre industry shut down nearly overnight in March of 2020. Thousands of talented professionals were out of work, costing individuals and the economy billions of dollars in the first month alone. Within a month of this industry wide halt, eighty theatres around the country began providing content to audiences around the country via streaming services. Streaming theatre fully took hold when Hamilton on Disney+ became the most widely watched piece of entertainment nationwide in the month of July. Within a few short months, an industry based completely around large gatherings shifted to a digital …

Trademarking Recreational Marijuana And Potential Threats To The United States' Treaty Obligations, Charles Wells

Georgia Journal of Law & Technology

The conflict between state and federal laws regarding the cultivation and sale of recreational marijuana results in inconsistent application of trademark protections between state and federal governments that could cause conflict with the United States’ treaty obligations under the TRIPS agreement. Whereas the federal government categorically denies trademark protections for marijuana-based products state governments protect trademarks belonging to recreational marijuana businesses through state and common law trademark protections. The United States is also obligated to ensure that foreign nationals and United States receive the same treatment regarding trademark protections under The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). …

From Blurred Lines To Blurred Law: An Assessment Of The Possible Implications Of "Williams V. Gaye" In Copyright Law, Hannah Patton

Georgia Journal of Law & Technology

In December 2018, panic spread throughout the music industry in light of headlines reporting that the Ninth Circuit Court of Appeals upheld the lower court’s verdict that the 2013 hit song “Blurred Lines” by Robin Thicke and Pharrell Williams infringed Marvin Gaye’s “Got to Give it Up,” released in 1977. In addition to the tremendous $5.3 million award ordered for the Gaye estate, the Blurred Lines Case resulted in fear that the holding could create precedent for allowing the “style” or “groove” of a song to be considered subject to copyright. Since then, industry insiders, lawyers, and commentators have feared …

Repeal The Defend Trade Secret Act: Why Congress Can't Rely On Trade Secret Law To Protect America's Trade Secrets, Steven Miller

Georgia Journal of Law & Technology

Trade secret theft from foreign and domestic competitors continue to siphon technological advances from United States businesses. This siphoning erodes America's competitive advantage in the global marketplace; however, this note argues that recent Congressional legislation that attempts to strengthen trade secret protection actually harms America's competitive advantage. This note argues for Congress to repeal its trade secret protection, because trade secret law,a s currently applied, fails to deter trade secret theft and fails to protect American business interests domestically or abroad, and yet actually harms domestic innovation.

Statutory And Constitutional Problems With Judicially-Imposed Patent-Claim Limitations, Sloane Kyrazis

Georgia Journal of Law & Technology

The safety valve standard articulated in In re Katz Interactive Call Processing Litigation is at odds with the provisions of the U.S. Patent Act and violates constitutional due process. Without requisite constitutional protections and those protections guaranteed by the U.S. Patent Act, patentees in complex modern patent litigation are at risk of having their patent rights deprived from contrary to the congressional intent articulated in the statute and without requisite process. The courts must balance their need for efficient administration of the law in patent cases by implementing equitable measures to ensure that patentees’ rights are not trampled on. Additionally, …

John Hemings' Monticello And Poplar Forest, J. Wesley Giglio

Georgia Journal of Law & Technology

A discussion of John Hemings' creative architectural contributions to Monticello and Poplar Forest, Thomas Jefferson's Virginia Estates. Author argues that Hemings, an enslaved person and a master carpenter, made vital and creative contributions to the building of the two estates which merit legal recognition. Author discusses how legal ideas about moral rights and statutory protections in the Architectural Works Copyright Protection Act could be adapted to cure a historica and representative injustice.

The Best Laid Plans: How Dmca Sec. 1201 Went Awry, Smothering Competition And Creating Giants,And Where We Go Now, Tyler Fabbri

Georgia Journal of Law & Technology

In 1998, Congress passed the Digital Millennium Copyright Act with the express intention of protecting the intellectual property of copyright holders from the growing threats of digital piracy and information sharing brought about by an increasingly digital society.

Among the law’s many provisions is §1201, which works to prohibit circumnavigation of digital protections copyright holders may put on protected works—in essence, innovators or competitors would be unable to develop technology or programs to bypass security measures put into place by primary creators. While this provision seems facially reasonable, it has effectively served as a means to quash adversarial interoperability.

Adversarial …

Secrets, Sovereigns, And States: Analyzing State Government's Liability For Trade Secret Misappropriation, Grant Cole

Georgia Journal of Law & Technology

Trade secrets are many business's most valuable assets. From Google’s algorithm to Coca-Cola’s secret recipe, trade secrets are becoming increasingly important to businesses and our economy. What if state governments could simply misappropriate these trade secrets without liability? Sadly, this situation is not uncommon. Many state governments have misappropriated trade secrets with virtual impunity. This is because the doctrine of sovereign immunity protects state governments from liability. This leaves businesses that deal with the government without a way to recover for the misappropriation of their trade secrets. This result is especially damaging because once a trade secret is no longer …

Cross-Jurisdictional Analysis Of Damage Awards In Copyright Infringement Cases, Ioana Vasiu, Lucian Vasiu

Georgia Journal of Law & Technology

Copyright infringement is a widespread phenomenon that produces massive financial losses to stakeholders. Based on an extensive examination of damage awards in copyright infringement cases from the United States, Canada, Singapore, and Italy, this article proposes a comprehensive cross-jurisdictional analysis. The analysis regards types, factors, methodologies, and arguments. This article's findings can be used to adjust the provisions regarding damage awards, to improve the litigation of such cases, to elaborate educational materials, for professional programs or law school clinics, and to develop better prevention policies. The proposed improvements could lead to a more unified approach to damage awards, increase the …

The Impact Of Implementing A 25-Year Reversion/Termination Right In Canada, Paul J. Heald

Georgia Journal of Law & Technology

No abstract provided.