Intellectual Property Law Commons^™

Transmissions Of Music On The Internet, Daniel J. Gervais

Vanderbilt Journal of Transnational Law

This Article examines the status of copyright laws in several countries as they pertain to transmissions of music on the Internet. Because the exact legal ramifications of music transmissions over the Internet are currently unclear, the Author compares copyright laws of six major markets and examines the potential application of the copyright laws and other rights that may apply. The Article also discusses rules concerning which transborder transmissions are likely to be covered by a country's national laws, as well as specific rules applying to the liability of intermediaries. Next, the Article summarizes the comparative findings and discusses the relevant …

Japanese Intellectual Property Law In Translation: Representative Cases And Commentary, Kenneth L. Port

Vanderbilt Journal of Transnational Law

Like much of Japanese law, Japanese intellectual property law is often criticized as being inaccessible. This inaccessibility has contributed to the misperception that Japanese case law regarding intellectual property does not exist. Even if it exists, the perception goes, it takes forever to track down and it is nearly irrelevant.

This Commentary, in a very modest way, is aimed at debunking the myth that Japanese case law regarding intellectual property is either non-existent or less meaningful than its U.S. counterpart. This Commentary consists of five translations of recent, significant intellectual property cases, as well as commentary regarding the relevance and …

Digital Broadcasting: The Cost Of Copyright, Journal Staff

Vanderbilt Journal of Entertainment & Technology Law

Music copyright issues pervade the Internet these days, but few have roots as far back as 1915. Since that time, radio broadcasters and copyright owners have found themselves embroiled in a conflict over the extent to which copyright law should and can dictate the terms and cost of broadcasting music. Advances in dig- ital transmission technology, followed closely by the introduction of two important legislative enactments, have kept the debate fresh in recent years. Now, an inter- pretative ruling by the Copyright Office as to the applicability of the latter to the former threatens to extend the dispute well into …

The Pharmaceutical Industry And World Intellectual Property Standards, F. M. Scherer

Vanderbilt Law Review

When I was a high school student during the late 1940s, the first so-called "wonder drugs"-initially penicillin and then the broad-spectrum antibiotics such as tetracycline-were entering the U.S. market. From their profitable experience developing the broad- spectrum antibiotics, the leading pharmaceutical companies of America and Europe acquired a strong research orientation that led to a cascade of new therapeutic entities, including additional anti-infectives, vaccines, diuretics, and then other agents to reduce heart attack risks, tranquilizers, antidepressants, birth control pills, anti-fungal agents, immuno suppressants, corticosteroids, AIDS inhibitors, powerful pain relief agents, and many other agents effective against specific diseases. Thanks to …

Market Hierarchy And Copyright In Our System Of Free Expression, Neil W. Netanel

Vanderbilt Law Review

If trends of the past two decades persist, a vast inequality of wealth may well become a fundamental, defining characteristic of political and social life in many Western democracies, particularly the United States.' Among its potentially pernicious effects, massive wealth disparity threatens the integrity of the democratic process. Liberal democracy aspires to political equality, which demands that opportunities to acquire and assert political power be widespread and broadly distributed. Political equality does not require economic equality. But political equality may be undermined by severe disparities of wealth. Absent preventive regulation, private wealth buys political power. It enables those with greater …

Analyze This: A Law And Economics Agenda For The Patent System, Rebecca S. Eisenberg

Vanderbilt Law Review

Patent law as a field of academic study has benefited enormously from the attention of economists. Indeed, law professors are relative newcomers to the academic patent field, trickling in behind the economists in small but growing numbers as patent law evolves from an arcane, practitioner-taught specialty to a less marginal role in law school curriculums.' Yet considering the prominence of economists in academic discourse about the patent system, they have had relatively little impact on patent law and policy. One reason for this disparity between the role of economists in the academy and in policy arenas may be the indeterminacy …

Strategic Disclosure In The Patent System, Douglas Lichtman, Scott Baker, Kate Kraus

Vanderbilt Law Review

Patent applications are evaluated in light of the prior art. What this means is that patent examiners evaluate a claimed invention by comparing it with what in a rough sense corresponds to the set of ideas and inventions already known to the public. This is done for three reasons. First, the comparison helps to ensure that patents issue only in cases where an inventor has made a non-trivial contribution to the public's store of knowledge. Second, it protects a possible reliance interest on the part of the public since, once an invention is widely known, members of the public might …

Patent Policy Innovations: A Clinical Examination, Josh Lerner

Vanderbilt Law Review

On the domestic front, the dispute has centered on the question of whether the United States should honor commitments made in bi- lateral agreements with Japan to remove idiosyncratic features of its patent system. In particular, legislation to require the publication of pending patent applications and to grant awards to the party that is first to file for an award (as are the practices in most nations) have been fiercely debated in the past few congressional sessions. In the developing nations, the requirements for minimal levels of patent protection in the Uruguay Round of the General Agreement on Tariff and …

Lessons From Studying The International Economics Of Intellectual Property Rights

Vanderbilt Law Review

When the Uruguay Round negotiations began in 1986, the subject of intellectual property rights ("IPRs") was completely unfamiliar to international trade economists. Presumably the area was ignored because global trade policy concerns had not moved into questions of domestic business regulation. Even today, readers will search in vain for serious treatments of the trade implications of exclusive rights to intellectual property ("IP") in international economics textbooks.

Despite this general inattention, a small but growing literature has emerged in which trade economists have framed specific questions and applied theory and statistical analysis to them. This literature has advanced the understanding of …

Cruel, Mean, Or Lavish? Economic Analysis, Price Discrimination And Digital Intellectual Property, James Boyle

Vanderbilt Law Review

It is not because of the few thousand francs which would have to be spent to put a roof over the third-class carriages or to upholster the third-class seats that some company or other has open carriages with wooden benches .... What the company is trying to do is to prevent the passengers who can pay the second-class fare from travelling third class; it hits the poor, not because it wants to hurt them, but to frighten the rich .... And it is again for the same reason that the companies, having proved almost cruel to third-class passengers and mean …

Elementary And Persistent Errors In The Economic Analysis Of Intellectual Property, Edmund W. Kitch

Vanderbilt Law Review

The literature on the economic analysis of intellectual property rights evidences a broad scholarly consensus on a number of central and important issues. First, intellectual property rights en- able economic actors to capture some of the benefits of the investment they make in establishing a good reputation, creating expressive works, and inventing new and improved technology. Absent intellectual property rights, copiers are free to take for themselves a significant part of the economic benefit generated by these types of investment and to undermine the incentive to make these in- vestments in the first place. Second, the investment activities induced by …

Of Green Tulips And Legal Kudzu: Repackaging Rights In Subpatentable Innovation, J. H. Reichman

Vanderbilt Law Review

How to enable entrepreneurs to appropriate the fruits of their investments in cumulative and sequential innovation' without impeding follow-on innovation and without creating barriers to en- try has become one of the great unsolved puzzles that the law and economics of intellectual property rights needs to address as the new millennium gets underway. This Article draws briefly from my earlier works to identify some of the key historical difficulties en- countered in protecting small grain-sized innovations that do not rise to the level of "novel and nonobvious inventions" or "original and creative works of authorship." It then re-examines these difficulties …

Copyright And The Perfect Curve, Julie E. Cohen

Vanderbilt Law Review

Everyone agrees that the purpose of the copyright system is to promote progress.' At the same time, though, skepticism about the law's ability to define the substance of progress runs deep within copyright case law and theory. Legal decisionmakers and scholars have quite properly doubted their own ability to evaluate artistic or literary merit, and have worried that efforts to do so would result in an inappropriately elitist and conservative standard. In addition, there is room for substantial debate about whether the metaphor of forward motion leaves out other important measures of what "progress" is or might be. This agnosticism …

Taking The Protection-Access Tradeoff Seriously, Harvey S. Perlman

Vanderbilt Law Review

Law and economics scholarship has contributed much to our understanding of both the nature of intellectual property rights generally and the features of individual intellectual property regimes. Indeed it is hard to imagine a field other than antitrust law that is so explicitly governed by economic thinking. In authorizing the copyright and patent systems, Article I, Section 8 of the United States Constitution expressly incorporates a social welfare imperative as the basis for its grant of power.' Certainly economists and economically oriented legal academics have given the field the attention it is due.

I am far from being a sophisticated …

Lessons From Studying The International Economics Of Intellectual Property Rights, Keith E. Maskus

Vanderbilt Law Review

When the Uruguay Round negotiations began in 1986, the subject of intellectual property rights ("IPRs") was completely unfamiliar to international trade economists. Presumably the area was ignored because global trade policy concerns had not moved into questions of domestic business regulation. Even today, readers will search in vain for serious treatments of the trade implications of exclusive rights to intellectual property ("IP") in international economics textbooks.

Despite this general inattention, a small but growing literature has emerged in which trade economists have framed specific questions and applied theory and statistical analysis to them. This literature has advanced the understanding of …

Comment On "Lessons From Studying The International Economics Of Intellectual Property Rights", Paul Goldstein

Vanderbilt Law Review

Copyright is the "dog that didn't bark" in Keith Maskus's paper, "Lessons from Studying the International Economics of Intellectual Property Rights." Like virtually every other economic study of intellectual property and trade, the Maskus paper confines its examples and analysis to the industrial side of intellectual property-mainly patents and know-how-and leaves the authorial side-copyright-untouched. As a small step toward repairing this imbalance, and toward opening a corner of policy inquiry that has so far been largely unexamined, I would like here to make a few observations on copyright and trade in developing economies.

The regular omission of copyright from economic …

Intellectual Property Rights And The New Institutional Economics, Robert P. Merges

Vanderbilt Law Review

When someone speaks of "the law and economics of intellectual property rights" (IPRs), an image along the lines of the following diagram is apt to come to mind: Wilson Sonsini Goodrich & Rosati Professor of Intellectual Property Law, U.C. Berkeley (Boalt Hall) School of Law. For helpful comments, the author wishes to thank members of the Vanderbilt Law School Conference, "Taking Stock: The Law and Economics of Intellectual Property Rights," April, 2000. The usual disclaimer applies.

This is the basic illustration of monopoly price and output, familiar from introductory microeconomic texts. It is often used to explain the effects of …

The Ftc As Internet Privacy Norm Entrepreneur, Steven Hetcher

Vanderbilt Law Review

This symposium explores the economic approach to intellectual property law. This Article concerns a particular type of intellectual good-personal data. Personal data is an increasingly important topic because of its connection to the issue of Internet privacy, which has recently taken center stage in the public policy arena.

Boiled down to its core, the Internet privacy debate is a debate about who should control personal data-Internet users (data subjects) or websites. The scope of website data collection practices is expanding dramatically, due in large part to technological advances such as cookies, Web-crawlers, and Web-cams. If Internet users are unable to …

An Unhurried View Of Private Ordering In Information Transactions, Yochai Benkler

Vanderbilt Law Review

We stand at an unprecedented moment in the history of exclusive private rights in information ("EPRIs").' Technology has made it possible, it seems, to eliminate to a large extent one aspect of what makes information a public good-its nonexcludability. A series of laws-most explicitly the Digital Millennium Copyright Act ("DMCA") and the Uniform Computers Information Transactions Act ("UCITA")-are building on new technologies for controlling individual uses of information goods to facilitate a perfect enclosure of the information environment.

The purpose of this Essay is to explain why economic justifications interposed in favor of this aspect of the enclosure movement are, …

Who's Patenting What? An Empirical Exploration Of Patent Prosecution, John R. Allison, Mark A. Lemley

Vanderbilt Law Review

Patents are big business. Individuals and companies are obtaining far more patents today than ever before. Some simple calculations make it clear that companies are spending over $5 billion a year obtaining patents in the U.S.- to say nothing of the costs of obtaining patents elsewhere, and of licensing and enforcing the patents. There are a number of reasons why patenting is on the rise; primary among them are a booming economy and a shift away from manufacturing and capital-intensive industries towards companies with primarily intellectual assets. But whatever the reason, it is evident that many companies consider patents important. …

Collaborative Research: Conflicts On Authorship, Ownership, And Accountability, Rochelle C. Dreyfuss

Vanderbilt Law Review

In this Article, Professor Dreyfuss explores the field of collaborative research in the realm of intellectual property law. Traditionally, scientists, artists, and professors developed ideas alone, utilizing only their own knowledge and research to complete their works. Recently, however, due in part to an increasing need for specialization, the globalization of the marketplace, the rapid growth of the Internet, and an expansion in intellectual property law, collaborative production is replacing individual efforts.

Collaborative efforts have posed an array of new and challenging legal problems. Parties sometimes find themselves with- out a clear sense of who has rights to royalties, who …

Redefining Trademark Alteration Within The Context Of Aesthetic-Based Zoning Laws: A Blockbuster Dilemma, Jeffrey W. Strouse

Vanderbilt Law Review

In 1978, a Nevada Federal District Court permitted the Nevada Real Estate Advisory Commission to regulate the registered service mark' of Century 21, a national franchisor of real estate brokerage firms.' Prior to this state regulation, Century 21's mark occupied approximately 80 percent of the surface area of any given display, while the name of the local franchisee covered the remaining 20 percent. To prevent consumer confusion," the Commission required that the 80:20 ratio be changed to a 50:50 ratio, effectively making the franchisee's logo as large as its counterpart. Century 21 objected to this mandate, arguing in part that …

Tomorrow Never Dies: The Protection Of Fictional Characters Under The Federal Trademark Dilution Act, Kristen Knudsen

Vanderbilt Journal of Entertainment & Technology Law

A number of different protections are available for fictional characters under intellectual property law. These have traditionally included copyright, trademark, and unfair competition, or some combination thereof. Another avenue of protection can be found in state dilution statutes, which prohibit unauthorized uses of characters that could harm their reputations, such as by "blurring" their ability to indicate one source, or by "tarnishing" their commercial value. This harm may occur even where there is no likelihood of public confusion, and even where the use is on a noncompeting good. Many commentators have criticized state dilution theories, however, as contravening the purposes …

Fighting The Phantom Menace: The Motion Picture Industry's Struggle To Protect Itself Against Digital Piracy, S. E. Oross

Vanderbilt Journal of Entertainment & Technology Law

Digital technology, combined with the influence of the Internet, represents an increasingly dangerous threat to the protection of copyrights in the global marketplace. Industries like Hollywood with business models based primarily on selling and/or licensing intellectual property have much to lose if that protection falters.

Jack Valenti, the president of the MPAA, knows this all too well. In recent testimony before the House Subcommittee on Telecommunications, Trade and Consumer Protection of the Commerce Committee, he described how the growing availability of certain digital technology could turn online piracy into the bane of the motion picture industry. Noting that Internet pirates …

Combating Copyright Infringement In Russia: A Comprehensive Approach For Western Plaintiffs, David E. Miller

Vanderbilt Journal of Transnational Law

This Article addresses several measures that U.S. and European firms can undertake to combat copyright infringing activities in Russia. First, the Article attempts to dispel the notion that Russian law and the Russian government are inadequate to deal with copyright and piracy problems. In fact, recent surveys suggest that foreign plaintffs have achieved some success in arbitrazh courts. Furthermore, Russian authorities have begun to take steps to ensure that these decisions will be enforced.

Second, the Author suggests that the United States and European nations can apply pressure on the Russian Federation to ensure compliance with copyright laws in the …

Publication, Musical Compositions, And The Copyright Act Of 1909: Still Crazy After All These Years, Michael B. Landau

Vanderbilt Journal of Entertainment & Technology Law

The copyright clause of the United States Constitution empowers Congress "to promote the Progress of Science and useful Arts, by Securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The purpose of copyright law is to strike a balance between the public's desire to have free access to information and authors' rights to protection of their private works. Common law copyright somewhat reflects this balance by providing the author with perpetual protection until first publication. Federal copyright law, however, with its more limited duration for protection, better balances these competing interests. Once …

Electronic Rights Management And Digital Identifier Systems, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The new world of digital information requires a new way of providing access to that information — while keeping the copyright backbone. It might be technically easier to create a digital infrastructure without copyright: Just throw works up on the Internet, and let anyone get to them for any purposes. But such systems have been suggested and roundly rejected by those who create and own works of value. So we need to build an electronic infrastructure that works with copyright and takes advantage of the digital environment. This paper looks at the attempts to build part of that infrastructure — …

Music, Money, And The Middleman: The Relationship Between The Songwriter And The Publisher, Cornelius Cowles

Vanderbilt Journal of Entertainment & Technology Law

Money, along with creative drive and the chance to work in an exciting industry, push the publisher and songwriter both. This article seeks to help the songwriter under-stand the role of the music publisher, an indispensable and unavoidable part of the country music industry. It examines the songwriter-publisher relationship from the perspective of those people active in the industry and examines criticism of the publisher's role. It further analyzes the typically thorny legal and contractual issues faced by the songwriter in negotiating an exclusive songwriting agreement with the publisher. Finally, recognizing the special role of songwriters in Nashville, it addresses …

The Times They Are A Changin': How Technology Has Forced The Law To Deal With A New Era In Music Distribution, Mark Plotkin

Vanderbilt Journal of Entertainment & Technology Law

The United States has attempted to keep pace with emerging digital music distribution technology through its copyright law. However, the perfect quality, limitless geographical scope, and exponential growth of digital music delivery implicate the varied and conflicting interests of songwriters, performers, record companies, broadcasters, and the public. Reconciling the interests of these groups in digital music delivery has not been, and will not be, easy...

To understand how the 1995 Act and the DMCA change music licensing, one should be aware that, in general, two distinct copyrights exist for each song that is recorded: the song copyright and the sound …

Asserting Copyright's Democratic Principles In The Global Arena, Neil W. Netanel

Vanderbilt Law Review

In a seeming blink of an eye, international bodies applying international law have effectively become the arbiters of domestic copyright law. World Trade Organization ("WTO") dispute settlement panels may now determine whether a nation's copyright law comports with the newly adopted Agreement on Trade-Related Aspects of Intellectual Property ("TRIPS"),' and may authorize trade sanctions upon a finding of non-compliance. Of like import, the United Nations' World Intellectual Property Organization ("WIPO") increasingly serves as a favored venue for copyright industry and user groups to further their legislative agendas. Recent WIPO treaties have accordingly set the tone for proposed domestic legislation designed …