Intellectual Property Law Commons^™

Limiting Unfettered Challenges To Patent Validity: Upholding No-Challenge Clauses In Pre-Litigation Patent Settlements Between Preexisting Parties To A License, Nicholas Roper

Cardozo Law Review

No abstract provided.

An Empirical Study Of The Use Of Legal Scholarship In Supreme Court Trademark Jurisprudence, Derek Simpson, Lee Petherbridge

Cardozo Law Review

Although the usefulness of law review and law journal articles to the decisional lawmaking process is a topic that has captured the imagination of jurists, reporters, and legal academics like few others, very little is actually known about how and why courts use such legal scholarship. This Article addresses that lack of knowledge. It reports an empirical study of the Supreme Court's use of legal scholarship in its trademark jurisprudence that spans the years 1949-2011. Among its contributions are: (1) the identification of Supreme Court trademark cases using and not using legal scholarship, including the identification of the pieces of …

Negotiating The Unknown: A Compulsory Licensing Solution To The Orphan Works Problem, Robert Kirk Walker

Cardozo Law Review

The artistic heritage of the United States is rotting away in "the bowels of a few great libraries," providing value to no one. If the owner of a work's copyrights is unknown or cannot be located, then the work cannot be licensed for use in new creative projects or preserved in a digital form, and is often unavailable to the public. To combat this "orphan works" problem, the Copyright Office has proposed a statutory limitation on infringement liability for users of orphan works who have completed a "reasonably diligent" search for the work's owner. However, this limited liability approach provides …

Fixing Copyright In Characters: Literary Perspectives On A Legal Problem, Zahr K. Said

Cardozo Law Review

No abstract provided.

Rethinking Redigi: How A Characteristics-Based Test Advances The "Digital First Sale" Doctrine Debate, Gregory Capobianco

Cardozo Law Review

No abstract provided.

Uncertainty As Enforcement Mechanism: The New Expansion Of Secondary Copyright Liability To Internet Platforms, John Blevins

Cardozo Law Review

This Article examines the role that legal uncertainty plays as a copyright enforcement mechanism against Internet platforms. In recent years, Internet platforms have faced a new wave of copyright enforcement actions arising from their users' activity. These actions include both civil secondary liability claims and public enforcement actions such as domain name seizures and criminal prosecution. In these enforcement actions, content owners understandably prefer broad secondary liability standards, but these standards remain subject to statutory and doctrinal constraints such as the DMCA safe harbor. Copyright owners, accordingly, are attempting to increase the breadth and expense of secondary copyright liability for …

"Every Move That She Makes": Copyright Protection For Stage Directions And The Fictional Character Standard, Deana S. Stein

Cardozo Law Review

No abstract provided.

The Cultural Analysis Paradigm: Women And Synagogue Ritual As A Case Study, Roberta Rosenthal Kwall

Cardozo Law Review

This Article develops an original cultural analysis paradigm with significant implications for understanding the relationship between law and culture. It also illustrates how this relationship should inform the normative application of areas of law in which tensions exist between modern sensibilities and traditional practices steeped in cultural perspectives from other times. Indeed, the negotiation between preservation and change confronts all ancient cultural traditions in modernity. The specific application invoked in this Article concerns the issue of women being called to read publicly from the Torah, a subject of serious academic debate among observant Jews. The analysis demonstrates that the virtually …

Broadcast Rights, Unjust Enrichment, And The Student-Athlete, Richard T. Karcher

Cardozo Law Review

The NCAA, conferences and universities license to networks the right to broadcast their live games in exchange for billions of dollars in annual rights fees without anyone questioning either the origin of this right or who constitutes all of the holders of this right. Historically courts recognized a quasi-property right of professional teams to sell the right to broadcast their games; however, team owners put personal funds at risk and are entitled to full ownership of the copyright to the broadcast under the work made for hire doctrine as they pay the players a proportionate share of the rights fees. …

Citizen Petitions: An Empirical Study, Michael A. Carrier, Daryl Wander

Cardozo Law Review

In recent years, brand-name drug companies have engaged in an array of conduct that has delayed generic competition. While some of the activity - such as settlements between brand and generic firms and "product hopping" from one drug version to another - has received attention, another behavior has, until now, flown under the radar.

This Article examines the activity of "citizen petitions." A citizen petition is a request for the U.S. Food and Drug Administration (FDA) to take an action such as evaluating a drug's safety or effectiveness. When used appropriately, it could raise awareness of legitimate concerns with a …

An Information-Gathering Approach To Copyright Policy, Peter Dicola, Matthew Sag

Cardozo Law Review

For over a century and with increasing frequency, major controversies have erupted between large distributors of copyrighted works (song publishers, movie studios, record labels, book publishers, etc.) and makers of new technologies for experiencing those works (player piano manufacturers, VCR manufacturers, the creators of file sharing software, Google Books, etc.). Usually, the copyright owners and the technology firms reach a licensing deal - but not without some form of government intervention. Various institutions within the federal government have become involved in these disputes, using a variety of different mechanisms. This Article is a theoretical investigation of government intervention in these …

Laughing Out Loud: Art, Culture, And Fantasy, Henrietta L. Moore

Cardozo Law Review

What makes art valuable? Why in times of crisis do people buy contemporary art? This Paper discusses whether or not investment in art can ever be seen as rational, and explores how the contemporary art market is expanding to include not just works of art, but art as a form of cultural practice. Audiences are no longer content simply to visit museums, galleries, and other cultural institutions. They want to participate, but why are art fairs, biennials, and museum events so popular? The contemporary art market has always been segmented, and reputation and display have been important motivators for rich …

Brand Counterfeiting: Mass Fetishism?, Geneviève Morel

Cardozo Law Review

No abstract provided.

Unblocked Future: Why Gene Patents Won't Hinder Whole Genome Sequencing And Personalized Medicine, W. Nicholson Price Ii

Cardozo Law Review

Whole-genome sequencing has been hailed as the crucial next step in personalized medicine. It has also been described as likely violating hundreds - if not thousands - of pre-existing patents on individual genes. These claims of patent infringement, however, are usually made without detailed analysis. Instead of stating that infringement definitely occurs, or in what circumstances it occurs, the discussion of whole-genome sequencing mentions that some claims may be typically infringed, but some may be invalid, and leaves the matter there. This Article seeks to provide a detailed analysis of the ways that whole-genome sequencing may infringe extant gene patents, …

A Short History Of "Intellectual Property" In Relation To Copyright, Justin Hughes

Cardozo Law Review

No abstract provided.

A Case Against The Acta, Kenneth L. Port

Cardozo Law Review

The Anti-Counterfeiting Trade Agreement (ACTA) is being considered by the Obama Administration as an executive order. If signed, this order will greatly enhance controls placed at the borders of thirty-seven countries to attempt to stop the international flow of so-called counterfeit goods. To remove the social, political, and emotional stigma, I adopt the value-neutral term imitative commodity to describe what some call counterfeits, knockoffs, or pirated goods, among others. This Article uses just three manufacturers of luxury status goods to consider whether the ACTA will have optimal or negative consequences. It concludes that the data supporting the need for the …

The En Banc Federal Circuit's Written Description Requirement: Time For The Supreme Court To Reverse Again?, Allen K. Yu

Cardozo Law Review

The Federal Circuit in Ariad v. Eli Lilly finally settled en banc the long-running dispute over whether the first paragraph of 35 U.S.C. § 112 contains a written description requirement separate from an enablement requirement. According to the Federal Circuit, such a requirement exists and exists to "convey[] to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date." The problem with the Federal Circuit's written description- "possession" doctrine is twofold. First, it characterizes the quid pro quo role of disclosure beyond its traditional role of placing knowledge in the …

Preemptive Ex Parte Seizure Orders And Substantive Relief: A Far Cry From Congressional Intent, Daniel Grobman

Cardozo Law Review

No abstract provided.

Separating The Sheep From The Goats: Celebrity Satire As Fair Use, Nicholas D. Sirabella

Cardozo Law Review

No abstract provided.

Fame Law: Requiring Proof Of National Fame In Trademark Law, Xuan-Thao Nguyen

Cardozo Law Review

The public has always been infatuated with fame. Trademark law likewise has a long history of infatuation with fame. Protecting the fame embodied in a trademark against dilutive use by others has not been easy. The difficulty stems from the wording of the statute and judicial failure to understand the "fame" requirement. The fundamental question centers on what level of fame is required for the property-like protection against subsequent uses that dilute the famous trademark. This Article argues for national fame to be the requisite requirement for property-like anti-dilution protection under trademark law. The Article recommends that the proof of …

The Myth Of Buick Aspirin: An Empirical Study Of Trademark Dilution By Product And Trade Names, Paul J. Heald, Robert Brauneis

Cardozo Law Review

Trademark dilution is a highly controversial cause of action that has been the subject of hundreds of law review articles, but no significant scientific work. We analyze sixty years of telephone white pages, corporate and LLC naming data, advertisements from the New York Times, Wall Street Journal, and Washington Post, state and federal trademark databases, and all recorded dilution litigation. Our data strongly suggest that famous trademarks are frequently borrowed for use as trade names in services, but almost never as trade marks on products. Given that Congress based anti-dilution legislation on the assumption that uses like …

Religious Use Of Copyrighted Works After Smith, Rfra, And Eldred, Steven D. Jamar

Cardozo Law Review

No abstract provided.

Rebutting The Equality Principle: Adapting The Co-Tenancy Law Model To Enhance The Remedies Available To Joint Copyright Owners, Benjamin E. Jaffe

Cardozo Law Review

No abstract provided.

Pseudo-Interactivity: An Appropriate Rate Scheme For Customizable Internet Radio Services, Ira Hoffman

Cardozo Law Review

No abstract provided.

No One Ever Died From Copyright Infringement: The Inducement Doctrine's Applicability To Firearms Manufacturer Liability, Shane Wagman

Cardozo Law Review

No abstract provided.

Copyrights, Campaigns, And The Collective Administration Of Performance Rights: A Call To End Blanket Licensing Of Political Events, Lauren M. Bilasz

Cardozo Law Review

No abstract provided.

In The Shadow Of Innovation, Gaia Bernstein

Cardozo Law Review

We are in the midst of the intellectual property wars. Scholars, judges, legislators, corporations, creators, and inventors disagree about the role of intellectual property rights. Yet, surprisingly everyone agrees about innovation - everyone loves innovation. Innovation appears everywhere: in legal scholarship, case law, legislative hearings, newspapers, and blogs. It is uniformly admired and aspired to - though almost never questioned.

Innovation is often assumed to have historically held a central role in the technology regulating legal regime. This Article presents a study of case law, which demonstrates that contrary to common belief, the celebration of innovation is, in fact, a …

Does Ip Need Ip? Accommodating Intellectual Production Outside The Intellectual Property Paradigm, Rochelle Cooper Dreyfuss

Cardozo Law Review

No abstract provided.

Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow

Cardozo Law Review

Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair-use burden of proof is repugnant to the fair use purpose. Today, copyright holders are exploiting the burden …

Introduction: In Flagrante Depicto, Peter Goodrich

Cardozo Law Review

No abstract provided.