Intellectual Property Law Commons^™

Terminating The Termination Policy Requirement: Protecting Internet Users And Service Providers By Expanding The Dmca Section 512(A) Safe Harbor, Michael Kritzer

Cardozo Law Review

The Digital Millennium Copyright Act of 1998 (DMCA) established “safe harbors” for Internet Service Providers (ISPs) against secondary liability for the copyright infringement perpetrated by their users. Among the requirements for eligibility for these safe harbors is a provision requiring ISPs to implement a policy for terminating repeat infringers. This Note proposes that Congress codify an exception to this termination requirement for a specific class of ISPs—“transitory” providers that solely provide internet access and do not control the information transmitted over their networks.

This Note examines the safe harbor and termination requirement through the lens of two recent secondary infringement …

Transformative Technology Or Blatant Theft: Reassessing Fair Use In The Era Of Generative Ai, Tsai-Lin Hsieh, Tsai-Fang Chen

Cardozo Law Review

The rapid proliferation of generative artificial intelligence (“AI”) applications in recent years has sparked a global “AI frenzy.” Yet, the rise of new AI technologies has also raised concerns about copyright infringement, particularly regarding whether generative AI developers should be held liable for using copyrighted works as training inputs and generating outputs that compete with original works. In response, AI developers have invoked a long line of technological fair use precedents to defend against any potential copyright infringement claims. The purpose of this Article is to offer insights into whether generative AI is a transformative technology that deserves fair use …

Does The Pto Have The Power To Ask Where You Sleep At Night? Pamela Chestek, The Patent Act, And The Apa Say No, Jessica Manzon

Cardozo Law Review

Imagine this scenario: You apply for a trademark, following the longstanding practice of listing your business’s PO Box on the application. Days later, you receive a notice from the U.S. Patent and Trademark Office (PTO): Your application was rejected for failure to disclose your domicile address—a requirement imposed under the 2019 U.S. Counsel Rule. Having previously suffered harm from making your home address public, you are understandably reluctant to expose it again for something as routine as a trademark application. You stand firm in withholding your domicile address, citing privacy concerns. As a result, your application remains denied, and when …

Fairer Public Benefit In Copyright Law, Amanda Levendowski Tepski

Cardozo Law Review

In 1966, a court considered expressly whether a secondary use of copyrighted works served a public benefit. While public benefit has become a subfactor of the fair use doctrine, it remains undefined, uncodified, and undertheorized. Courts often invoked public benefit in pivotal cases involving novel technologies, from home video recorders to digital libraries to algorithms—but they did not need to. After the recent Supreme Court decision in Google v. Oracle, however, public benefit is unavoidable: The Court stated that “we must take into account the public benefits the copying will likely produce.” A qualitative analysis of key public benefit cases …

Open Source Perfume, Amanda Levendowski

Cardozo Law Review

Perfume is a powerful art and technology, but its secrets are closely held by a privileged few by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. The Western perfume industry prizes perfumers with elite pedigrees, which often precludes marginalized perfumers. It also perpetuates non-Western cultures, that push some marginalized perfumers into teaching themselves perfumery. But teaching oneself through recreating and remixing existing fragrances presents a different challenge. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) plays a complicated role …

All For One, One For None: Arrington V. Burger King Worldwide And The Single-Entity Defense For Franchises, Tyler Nappo

Cardozo Law Review

Section 1 of the Sherman Antitrust Act (Sherman § 1) proclaims contracts, combinations, or conspiracies in restraint of trade or commerce to be illegal. Thus, for an agreement to fall within Sherman § 1’s boundaries, there must be a joining together of separate actors or entities. However, for over a century since the Sherman Act’s enactment, courts have struggled to draw the line between separate business entities and single entities. This distinction became more defined with the Supreme Court’s holding in Copperweld Corp. v. Independence Tube Corp. that parent companies are incapable of conspiring with wholly owned subsidiaries. But Copperweld …

In Satan We Trust: The Satanic Temple’S Ongoing Crusade To Protect Abortion Rights, Bradley Koberg

Cardozo Law Review

In the summer of 2022, the Supreme Court overruled the nearly fifty-year-old precedent of Roe v. Wade, eliminating the constitutional right to an abortion. This was one of several decisions in which the newly minted conservative supermajority undermined what could be seen as progressive precedents. At the same time, the Court has been elevating religious liberty claims and strengthening legal protections for religious individuals and organizations (predominantly Christian). For anybody who cares about the “so-called separation of . . . church and state,” this conservative Christian reformation taking place in the nation’s highest court is a cause for concern.

However, …

No Bullying Allowed Here: Adopting A Misuse Doctrine To Defeat Trademark Bullies, Jessica Shechtman

Cardozo Law Review

In order to maintain trademark rights, trademark owners are encouraged to enforce and police their trademarks through civil actions. Enforcing trademark rights is encouraged and incentivized by the Lanham Act because failure to do so may result in harsh consequences for trademark owners. Some of these consequences include weakening of strength or abandonment of the mark, which may result in loss of trademark rights. However, large companies go above and beyond to police and protect their trademarks. At times, this overenforcement is unethical and crosses a fine line between following the law and abusing the law, causing a number of …

Holistic Claim Construction, Lidiya Mishchenko

Cardozo Law Review

Jurisprudence in the area of defining patent scope is opaque and inconsistent. District courts and litigants cannot be certain of the bounds of the exclusive territory covered by a patent—defined by the patent’s claims—until the Court of Appeals for the Federal Circuit—the single patent appellate court in the nation—says what it is in an appeal after final judgement. The appellate court appears to simply redo the analysis of the district courts, yet often inexplicably reaches a different conclusion based on the patent’s text. Though much has been written about the Federal Circuit’s unpredictable, textualist approach to claim construction, no scholarship …

Nerds V. Nintendo: Video Game Decompilations Versus Rights-Holder Interests, Kirk A. Sigmon

Cardozo Law Review

Video game “decompilations”—a potentially technically inaccurate term referring to fan efforts to entirely reprogram video games based on reverse engineering those games—present an interesting case study for evaluating the scope of video game copyrightability, fair use, and public expectations about content availability. Decompilations usually comprise entirely new code and do not comprise any assets of the original video game, suggesting that the decompilations, if viewed as mere code, do not apparently infringe any video game copyrights. That said, decompilations illustrate why copyright protects more than the discrete assets (e.g., art or music) of a video game, as decompilations are generally …

Wrong Search At The Wrong Time: Keyword Search Warrants And The Fourth Amendment, Nicole Chan

Cardozo Law Review

On August 5, 2020, five members of a family were killed when their house was set ablaze. Kevin Bui admitted to investigators that he and two other teens burned the house down after his iPhone had been stolen. He used the Find My application and located his phone at the Green Valley Ranch home. It was not until the next day while reading the news about the arson that he realized he had targeted the wrong residence.

Copyright’S Law Of Dissemination, Jacob Noti-Victor

Cardozo Law Review

Intellectual property law generally rests on the assumption that markets will bring about an ideal allocation of resources. Nonetheless, United States copyright law remains riddled with regimes that bypass or restructure normal market licensing between copyright owners and distributors such as streaming services, radio stations, and libraries. This Article provides the first comprehensive account of this “law of dissemination,” examining how a range of seemingly unrelated judicial doctrines, statutory safe harbors, and regulatory institutions together affect the relationship between copyright owners and the entities that disseminate creative works to the public.

While these regimes are often treated as unintelligible historical …

The Future Of Property, Yael R. Lifshitz, Maytal Gilboa, Yotam Kaplan

Cardozo Law Review

Property law focuses predominantly on spatial conflicts of interest between neighbors but neglects temporal conflicts between generations. This lack of attention to the temporal dimension leads to a troubling mismatch in property law: while property rights last forever, the corresponding duties that require property holders to respect the interests of others are remarkably short lived. The result is that property law currently does not adequately protect the rights of future generations. In this Article, we offer a blueprint for correcting this anomaly. We advocate a change in the current conception of property and propose that property law focus more on …

Can Artists Recapture Their Copyrights In Musical Compositions That Have Been Lost To The Public Domain? Skidmore V. Led Zeppelin Applied, Brianna Bell

Cardozo Law Review

No abstract provided.

The Art World Of Digital Assets: How Non-Fungible Tokens Create A Loophole In Anti-Money Laundering Regulations, Sofia Aizenman

Cardozo Law Review

No abstract provided.

“That Little Girl Was Me”: Kamala Harris And The Civil Whites Of 1964 And Beyond, Maureen Johnson

Cardozo Law Review

No abstract provided.

Automating Discrimination: Ai Hiring Practices And Gender Inequality, Lori Andrews, Hannah Bucher

Cardozo Law Review

No abstract provided.

Licensed To Rock The Campaign Trail: Are The Ascap And Bmi Political Campaign Licenses Violating Their Antitrust Consent Decrees?, Leah Scholnick

Cardozo Law Review

No abstract provided.

The Use Doctrine In Trademark Law: Issues From Trade And Transborder Reputation, Srividhya Ragavan

Cardozo Law Review

No abstract provided.

Zoning And The Cost Of Housing: Evidence From Silicon Valley, Greater New Haven, And Greater Austin, Robert C. Ellickson

Cardozo Law Review

Municipal zoning, shockingly, may be the most consequential regulatory program in the United States. This Article develops metrics for measuring the extent to which a locality’s zoning practices are exclusionary, that is, limit construction of least-cost housing. It applies the metrics to actual zoning ordinances and zoning maps, materials that legal scholars have seldom closely appraised. The municipalities chosen for study lie in three metropolitan areas, the ones listed in the Article’s title. Of the three, zoning in Greater Austin, one of the fastest growing metropolitan areas in the United States, is—to no one’s surprise—the most conducive to housing development. …

"And The Oscar Goes To . . .": Why The Academy Awards May Create Antitrust Drama With Proposed Eligibility Rule Changes, Armando Marin Iii

Cardozo Law Review

No abstract provided.

Deeply Fake, Deeply Disturbing, Deeply Constitutional: Why The First Amendment Likely Protects The Creation Of Pornographic Deepfakes, Bradley Waldstreicher

Cardozo Law Review

No abstract provided.

How Do You Know It Was Me? A Case Comment On Cobbler Nevada, Llc V. Gonzales, David T. Frankel

Cardozo Law Review

No abstract provided.

Copyright And Attention Scarcity, Jake Linford

Cardozo Law Review

As the costs of creating and sharing information have plummeted, some scholars question the continued utility of copyright protection, which imposes artificial scarcity so that authors can recoup creation and dissemination costs. Scholars have ignored, however, that when information is abundant, attention becomes a scarce resource. Superabundant information can overtax consumer attention.

Reducing copyright protection in this new environment may worsen the costs of attention scarcity on consumers of creative expression. Firms often compete for attention by free riding on the public interest generated by copyrighted works. If copyright protection is narrowed, new entrants have reduced motivation to create works …

Fintech: New Battle Lines In The Patent Wars?, Megan M. La Belle, Heidi Mandanis Schooner

Cardozo Law Review

Historically, financial institutions have relied on trade secrets and first-mover advantages, rather than patents, to protect their inventions. For the few financial patents that were issued, conventional wisdom was that they weren’t terribly interesting or important. In our 2014 study on financial patents, we showed that banks were breaking from past patterns and increasingly seeking patent protection. We explained that financial institutions were primarily building their patent portfolios as a defensive measure—i.e., to protect themselves from infringement suits. Indeed, the finance industry successfully lobbied Congress to include provisions in the America Invents Act of 2011 that made it easier to …

Third-Party Interests And The Property Law Misfit In Patent Law, Sarah Rajec

Cardozo Law Review

Courts and scholars have long parsed the characteristics of patent grants and likened them, alternately, to real or personal property law, monopolies, public franchises and other regulatory grants, or a hybrid of these. The characterizations matter, because they can determine how patents are treated for the purposes of administrative review, limitations, and remedies, inter alia. And these varied treatments in turn affect incentives to innovate. Patents are often likened to real property in an effort to maximize rights and allow inventors to internalize all of the benefits from their activities. And courts often turn first to real property analogies when …

The Right Of Publicity As Market Regulator In The Age Of Social Media, Barbara Bruni

Cardozo Law Review

No abstract provided.

Discrimination And Privacy Concerns At The Intersection Of Healthcare And Big Data, James Koenderman

Cardozo Law Review

No abstract provided.

Patent Eligibility And Investment, David O. Taylor

Cardozo Law Review

Have the Supreme Court's recent patent eligibility cases changed the behavior of venture capital and private equity investment firms, and if so how? This Article provides empirical data about investors' answers to those important questions. Analyzing responses to a survey of475 investors at firms investing in various industries and at various stages of funding, this Article explores how the Court's recent cases have influenced these firms' decisions to invest in companies developing technology. The survey results reveal investors' overwhelming belief that patent eligibility is an important consideration in investment decision making, and that reduced patent eligibility makes it less likely …

Patents As Property: Oil States And Its Implications On The Takings Clause, Jordan T. Owens

Cardozo Law Review

No abstract provided.