Intellectual Property Law Commons^™

Copyright In Higher Education: A Review Of Modern Scholarship, Jacob H. Rooksby

Law Faculty Publications

Of the four intellectual property regimes, copyright is the most central to the day-to-day functioning of higher education. Nearly every course of instruction involves the use of written, visual, intangible, and tangible materials, many if not most of which are subject to copyright protection. Students, faculty, and staff—essentially all the people who comprise higher education—produce and interact with copyrightable and copyrighted materials every day. Copyright relates directly to perhaps the most prominent of higher education’s goals: to educate students through teaching, and to produce scholarship and research that benefit mankind. All of these acts involve creating and using original works …

Intellectual Property And The University: An Introduction, Jacob H. Rooksby

Law Faculty Publications

Higher education today faces many challenges. Adequately opening the doors of social mobility for students from diverse and non-traditional backgrounds. Rising tuition that has resulted in an entire generation of students emerging from college with student loan debt that can seem insurmountable. Declining state support of public institutions. Increased calls for institutions to contribute to local economies through job creation and workforce development. A growing administrative class in higher education that often only adds to bureaucracies and mounting costs instead of alleviating them. An increasing reliance on adjunct professors to teach core subjects and dwindling numbers of tenure-stream faculty. Urgent …

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

University of Richmond Law Review

No abstract provided.

Fair Use And The Faces Of Transformation, Part Ii, James Gibson

Law Faculty Publications

In my last IP Viewpoints entry, I discussed the origin of “transformation” as a major factor in copyright’s fair use doctrine. In particular, I focused on “expressive” transformation, in which the user changes the actual content of the copyrighted work. Taking old works and turning them into something new is the way that culture usually evolves, so it is no surprise that copyright law would sometimes allow users to engage in such conduct without needing to pay for the privilege.

Yet there is also a second kind of transformation, one that does not involve the alteration of the underlying material. …

Trademark Law As An Agency Problem - Part I, James Gibson

Law Faculty Publications

A few months ago, my IP Issues entry demonstrated that the exclusive rights that trademark law provides are rooted in consumer welfare – in the need to ensure that consumers are able to distinguish one producer’s goods from those of its competitors. In this entry and the next, I will consider the implications of this point for modern trademark law.

If the consumer interest is really what trademark law is all about, then one conundrum that follows is that consumers do not have trademark rights. Producers do. A moment’s reflection explains why: When consumers are deceived by Producer X’s use …

Patent Claim Interpretation Review: Deference Or Correction Driven?, Christopher A. Cotropia

Law Faculty Publications

This Article examines the Federal Circuit's review of claim constructions by lower tribunals to determine whether the Federal Circuit defers to lower court constructions or is making its own, independent determination as to the "correct" construction and ultimate result in the case. The data collected from 2010 to 2013 indicates that the Federal Circuit affirms about 75% of lower court claim interpretations. While this finding is itself surprising, even more surprising is that these reviews do not appear to be driven by deference. Instead, the Federal Circuit is less likely to correct constructions that resulted in a patentee loss below, …

Defining Domain: Higher Education's Battles For Cyberspace, Jacob H. Rooksby

Law Faculty Publications

Juliet famously mused, “What’s in a name? that which we call a rose / By any other word would smell as sweet.” The same cannot be said for Internet domain names. One’s inability to own a specific domain name has delayed product launches, caused companies to change names, and led to disputes with alleged cybersquatters. The utility of domain names has led to a robust secondary market of buyers and sellers, where domain names that encompass generic words, or are comprised of very few letters or numbers, often change hands for hundreds of thousands of dollars, or more. In short, …

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

Law Student Publications

This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. The comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye.

Danger In The Dmca Safe Harbors: The Need To Narrow What Constitutes Red Flag Knowledge, Hank Fisher

Law Student Publications

This comment considers recent cases interpreting the Digital Millennium Copyright Act ("DMCA") and urges Congress to expand the protection of service providers through the DMCA safe harbors. The comment proceeds in six parts. Part I explains contributory and vicarious liability, the applicable sections of the DMCA to this comment, and the fair use doctrine. Part II provides a brief overview of video-sharing websites. It further observes the impact that video-sharing websites have had on digital media, focusing on the impact on the music industry. Part III looks at the recent cases interpreting the DMCA's red flag exception to safe harbor …

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

Law Student Publications

This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. This comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye. Part I provides background information on the relationship between the author, reader, and text as outlined by Roland Barthes, general copyright law, Richard Prince, and the fabulist Jorge Luis Borges. Part …

An Uneasy Balance: Personal Information And Crowdfunding Under The Jobs Act, Brice Kindred

Richmond Journal of Law & Technology

“Crowdfunding” is the raising of small amounts of money from many different sources for a particular purpose. Today, this usually takes place online.2 Crowdfunding has become a popular means of raising funds for a wide variety of projects, causes, and business ventures. Websites like Kickstarter, Indiegogo, and Crowdfunder allow people to create a profile for their project and solicit contributions from the general public in support.

Beyond Technophobia: Lawyers’ Ethical And Legal Obligations To Monitor Evolving Technology And Security Risks, Timothy J. Toohey

Richmond Journal of Law & Technology

Lawyers and technology have an uneasy relationship. Although some lawyers are early adapters, others take pride in ignoring technology because they believe it is alien to the practice of law. As Jody R. Westby observed, lawyers confronted with technology and security issues tend to have their “eyes glaze over” and “want to call in their ‘IT guy’ and go back to work.” But this technophobic attitude may no longer just be harmless conservatism. In the world of growing security risks, ignorance of technology may lead to violations of lawyers’ fundamental ethical duties of competence and confidentiality.

Cover Letter, Laura M. Bedson

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its fourth and final issue of the Twenty-First Volume. At its inception in 1995 JOLT became the first law review to be published exclusively online. From this moment on, the Journal has continued to set trends in the legal scholarship world. As one of the leading publications in the legal technology field, JOLT has the privilege of publishing articles that address topics at the forefront of the law. The articles in this fourth issue are no exception. Each of the following articles present exciting discussions on cutting-edge areas of …

The Internet Of Things And Wearable Technology: Addressing Privacy And Security Concerns Without Derailing Innovation, Adam D. Thierer

Richmond Journal of Law & Technology

The next great wave of Internet-enabled innovation has arrived, and it is poised to revolutionize the way humans interact with the world around them. This paper highlights some of the opportunities presented by the rise of the so-called Internet of Things (IoT) in general and wearable technology in particular and encourages policymakers to allow these technologies to develop in a relatively unabated fashion.

Google As Copyright Iconoclast, James Gibson

Law Faculty Publications

Google’s role as a copyright defendant has provided fodder for many an essay in this series, particularly with regard to the Google Books litigation. (Incidentally, that litigation celebrates its tenth anniversary next month – and it’s still going strong.) A more recent Google case, however, is probably just as important, and it provides another interesting lesson in the Internet behemoth’s copyright litigation strategy.

The case is Oracle v. Google. In early 2010, Oracle acquired Sun Microsystems, the developer of Java, the popular cross-platform programming language. Soon thereafter, Oracle sued Google for copyright infringement, alleging that Google’s Android operating system copied …

Sticks And Stones: How The Ftc's Name-Calling Misses The Complexity Of Licensing-Based Business Models, Kristen Jakobsen Osenga

Law Faculty Publications

The purpose of this Essay is not to condemn the FTC study of PAEs. Instead, the FTC's study could be an incredibly important step in the right direction towards understanding the many complex business models that exist in the patent licensing world and how these firms affect innovation and competition.

Part I of this Essay describes the genesis of the FTC's interest in patent licensing firms and the details of the § 6(b) study. It also explores the un- derlying bases for the FTC's interest in this area, specifically the claims about how patent licensing firms impact innovation and competition. …

Cover Letter, Laura M. Bedson

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its second issue of the Twenty-First Volume. As one of the leading publications in the legal technology field, JOLT has the privilege of publishing articles that address topics at the forefront of the law. From the Journal’s inception in 1995, JOLT has strived to be a step ahead of these laws in an effort to help shape the emerging legal landscape. Additionally, JOLT recognizes the practical benefit that many of its articles have on legal professionals and we publish articles with this goal in mind. The following articles …

Cover Letter, Catherine Meade Gray

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its third issue of the Twenty-First Volume, our Annual Survey. This issue is published in conjunction with JOLT’s Symposium, “Who’s Looking At Your Mobile Device? Data Security, Personal Privacy, and Information Governance in the Wireless World.” As one of the leading publications in the legal technology field, JOLT has the privilege of publishing articles that address topics at the forefront of the law. From the Journal’s inception in 1995, JOLT has strived to be a step ahead of these laws in an effort to help shape the …

Danger In The Dmca Safe Harbors: The Need To Narrow What Constitutes Red Flag Knowledge, Hank Fisher

University of Richmond Law Review

No abstract provided.

Does The Presumption Of Validity Matter? An Experimental Assessment, Jeremy W. Brock

University of Richmond Law Review

No abstract provided.

Unpacking Patent Assertion Entities (Paes), Christopher A. Cotropia

Law Faculty Publications

In Part I, we explain several theories on why PAEs are beneficial or detrimental to the patent system. These theories outline distinct categories of patent holders who enforce their patents. Transforming the distinct categories into a coding scheme, we detail in Part II the methodology we used to generate the dataset. Part III provides descriptive statistics of 2010 and 2012 patent litigation. We discuss implications of the data, including points of disagreement between our data and the data of others, in Part IV. We also describe some areas of future study, many of which we are presently undertaking. Finally, we …

Still Aiming At The Wrong Target: A Case For Business Method And Software Patents From A Business Perspective, Kristen Jakobsen Osenga

Law Faculty Publications

In Part I, I briefly discuss the rise and recent fall of business method patents. Part II covers the scholarly literature discussing business method and software patents. In Part III, I explain the proxy argument that I have made elsewhere and show how it plays in the recent decisions surrounding the patent eligibility of business method and software inventions. I then explain why the analysis of business method and software patents in the literature uses the same proxy-type arguments to avoid more difficult questions of patentability and policy. Finally, I conclude by explaining how business method and software patents, if …

Debugging Software's Schemas, Kristen Jakobsen Osenga

Law Faculty Publications

The analytical framework being used to assess the patent eligibility of software and computer-related inventions is fraught with errors, or bugs, in the system. A bug in a schema, or framework, in computer science may cause the system or software to produce unexpected results or shut down altogether. Similarly, errors in the patent eligibility framework are causing unexpected results, as well as calls to shut down patent eligibility for software and computer- related inventions. There are two general schemas that are shaping current discussions about software and computer-related invention patents-that software patents are generally bad (the bad patent schema) and …

Cease, Desist, And Laugh, James Gibson

Law Faculty Publications

Anyone who teaches intellectual property law knows how exciting the subject matter can be for students. They inundate professors not only with questions about the classroom material but also with news about emerging technologies, cutting-edge litigation, and legislative initiatives. And the attentive professor will seek to turn these exchanges into teaching moments.

One favorite of students involves a classic intellectual-property mechanism, the cease-and-desist letter. It’s a favorite, I think, because such correspondence can be over the top, and the responses can be quite funny – making this a perfect topic for this April Fool’s edition of IP Viewpoints. [...]

Patent Claim Interpretation Review: Deference Or Correction Driven?, Christopher A. Cotropia

Law Faculty Publications

This Article examines the Federal Circuit's review of claim constructions by lower tribunals to determine whether the Federal Circuit defers to lower court constructions or is making its own, independent determination as to the "correct" construction and ultimate result in the case.

Fair Use And The Faces Of Transformation, Part I, James Gibson

Law Faculty Publications

The recent Kienitz v. Sconnie Nation case has been the focus of three recent posts in this Intellectual Property Issues series – from me, Doug Lichtman, and Rod Smolla. In Kienitz, the defendant changed a photograph of the mayor of Madison, Wisconsin, into a stylized, high-contrast image, printed on t-shirts that mocked the mayor’s policies. The U.S Court of Appeals for the Seventh Circuit held that the new image constituted a fair use and therefore did not infringe the photograph’s copyright. (The original photo and the stylized version on the t-shirt can be seen here.) …

The Tangled Web: A Case Against New Generic Top-Level Domains, Joseph P. Smith Iii

Law Student Publications

This article’s purpose is to provide a general understanding of the legal and financial implications of the new generic top-level domains. By looking at the history and functionality of generic top-level domains, the reader will hopefully have the requisite background to understand the implications of adding new top-level domains.

Cover Letter, Allison F. Rienecker

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its Annual Survey issue of the 2013-2014 academic year. This issue is published in conjunction with JOLT’s Symposium entitled “Information Governance: A Comprehensive Approach to e-Discovery.” Since its founding in 1995, JOLT has strived to publish relevant legal articles at the forefront of the technological field. With this goal in mind, we are excited to expand JOLT’s respected discussion of e-Discovery to the emerging field of Information Governance.

Cover Letter, Benjamin R. Fox

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its third issue of the 2013-2014 academic year. First published in 1995, JOLT is the world’s first exclusively online law review. JOLT strives to discuss new and emerging issues that fall squarely at the intersection of technology and the law. With this goal in mind, we are proud to announce the publication of the following articles.

The Tangled Web: A Case Against New Generic Top-Level Domains, Joseph P. Smith Iii

Richmond Journal of Law & Technology

If we had a reliable way to label our toys good and bad, it would be easy to regulate technology wisely. But we can rarely see far enough ahead to know which road leads to damnation.